Khattar v Wiese (No. 2)

[2005] NSWSC 1300

CITATION:	Khattar & anor v Wiese (No. 2) [2005] NSWSC 1300
HEARING DATE(S):	8 December 2005
JUDGMENT DATE :	8 December 2005
JUDGMENT OF:	Brereton J

CATCHWORDS:	PROCEDURE - joinder of parties - amendment - addition of new defendants - where proceedings to be dismissed against original defendant after final hearing - where relitigation of all issues would be required - joinder refused.
LEGISLATION CITED:	Conveyancing Act 1919 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
CASES CITED:	Farley & Lewers v Attorney General [1963] SR (NSW) 814 Harmer v Armstrong [1934] 1 Ch 65 Khattar v Wiese (2005) NSWSC 1014 Mulcahy v Curramore Pty Ltd (1974) 2 NSWLR 464
PARTIES:	Tony Khattar (first plaintiff) Damien Dibb (second plaintiff) Valerie Claire Wiese (defendant)
FILE NUMBER(S):	SC 1479/05
COUNSEL:	C W Robinson (plaintiffs) J A C Potts (defendant)
SOLICITORS:	CPC Lawyers (plaintiffs)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Brereton J

Thursday 8 December 2005

1479/05 Tony Khattar & 1 Or v Valerie Claire Wiese

JUDGMENT (ex tempore)

1 HIS HONOUR: By motion filed in Court today and made returnable instanter, the plaintiffs, Tony Khattar and Damien Dibb seek orders which would have the effect that the proceedings against the only present defendant, Valerie Claire Wiese, be dismissed, but that Mary Hay and Norman Hay, the proprietors of 118 Jersey Road, and Faye Lorainne Griffith and Graeme Griffith, the proprietors of 118A Jersey Road, be added as defendants.

2 The proceedings were adjourned to today, as a result of judgment which I gave on 7 October 2005 [Khattar v Wiese (2005) NSWSC 1014], refusing at that stage to impose an easement, pursuant to Conveyancing Act, 1919 (NSW), s 88K, on Mrs Wiese’s land, in order to consider whether it was appropriate to permit the plaintiffs to make a further application in these proceedings, and if so whether additional parties should be joined, and what directions should be made if there was to be a further hearing. I indicated that if I came to a contrary view on those matters I would dismiss the summons. It is in the light of that that the present motion is filed.

3 The plaintiffs have, at least not yet, obtained the Council's approval to a variation of the deferred development consent which would accommodate the easement which they sought in these proceedings. They have determined that rather than proceed to seek an easement over the land of Mrs Wiese, they will instead now seek an easement over 118 and 118A Jersey Road.

4 In the judgment given on 7 October 2005 I found that such an easement would be one “having the same effect” for the purposes of Conveyancing Act, s 88K as the easement sought in these proceedings. But that is not to say that it is the same easement; far from it. It will, if granted, be an easement over different land, held by different proprietors.

5 The proposed additional defendants have not been given notice of the present motion. The new defendants would, it seems to me, reasonably feel a sense of aggrievement of being brought into the proceedings at a stage where views have already been formed and expressed, evidence already taken, and a substantive judgment already delivered. Were they to be joined, they would be joined with effect from today. Although it might be said that, for the purposes of Uniform Civil Procedure Rules 2005 (NSW) r 6.19, there are common questions of fact, the new defendants could not fairly be bound by any finding of fact made up to this point in the proceedings, and should be entitled to re-litigate all questions. The proceedings would have to effectively start anew against them. In those circumstances, it is difficult to see that any useful purpose would be served by joining them in these proceedings.

6 I do not overlook that at times it may be appropriate to join additional defendants at a later stage of proceedings - even in the Court of Appeal - where that is necessary to do justice [see, for example, Mulcahy v Curramore Pty Ltd (1974) 2 NSWLR 464, 468; Harmer v Armstrong [1934] 1 Ch 65, 92, 93; Farley & Lewers v Attorney General [1963] SR (NSW) 814]. However, the cases in which that has been permitted have been ones where a party could be added without prejudice, even at a very late stage, because there was no useful step that the new party could have taken, but did not take, in its interests at an earlier stage of the proceedings, such as seeking discovery or administering interrogatories. I do not think that can be said in the present case. One simply does not know how the proposed added defendants would have defended the plaintiffs' claims in these proceedings.

7 For those reasons, it seems to me that any claim which the plaintiffs may wish to bring under s 88K against the owners of 118 and 118A Jersey Road, should be agitated not by adding them as defendants in these proceedings, but in other, new proceedings.

8 For those reasons, I dismiss the motion filed on 8 December 2005 with costs. I order that the summons be dismissed and that, to the extent that existing costs orders do not already make provision, that the plaintiffs pay the defendant's costs of the proceedings.

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