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Lawrence v Arambasic

Lawrence v Arambasic

Case [2020] NSWSC 1864 18 December 2020

Summary Judgment

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Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Lawrence v Arambasic [2020] NSWSC 1864
Hearing dates: 26 November 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Common Law
Before: Wright J
Decision:
(1) Pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings in relation to any claims against the second defendant are dismissed.
(2) The plaintiffs are to pay the second defendant’s costs of and incidental to these proceedings.

Catchwords:
CIVIL PROCEDURE – Application for summary dismissal – Proceedings brought against Sheriff of NSW for trespass following execution of writ of possession – Application of Sheriff Act s 7A – No arguable causes of action in trespass to land, person or goods disclosed in statement of claim or in the proceedings – Proceedings against second defendant dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Family Law Act 1975 (Cth)
Sheriff Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Arambasic v Veza (No 3) [2014] NSWSC 621
Arambasic v Veza (No 4) [2014] NSWSC 1109
Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Frazer v SR7 Pty Limited and Ors [2013] NSWSC 820
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gunns v Marr [2005] VSC 251
Halliday v Nevill (1984) 155 CLR 1 at 10-11; [1984] HCA 80
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71
Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19
Preston v Star City Pty Limited [1999] NSWSC 1273
Seidler v Carroll & O'Dea [2013] NSWSC 338
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
White v Arambasic [2020] NSWSC 1376
Young v Hones [2013] NSWSC 580

Category: Principal judgment
Parties: Edward Lawrence (First Plaintiff – self represented)
Jasmin White (Second Plaintiff – self represented)
Steve Arambasic (First Defendant)
Sheriff of New South Wales (Second Defendant)
Representation:
Counsel:
A Power (First Defendant)
V Thomas (Second Defendant)
Solicitors:
Austen Brown Boog (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s): 2019/190613

Judgment

Background

On 19 June 2019, Mr Lawrence and Dr White, the plaintiffs, filed a statement of claim seeking relief based on causes of action in trespass to land, trespass to persons and trespass to goods, which were alleged to have occurred during the eviction of the plaintiffs from a property in Lightning Ridge (the Lightning Ridge property) on 18 December 2018. The plaintiff sought relief against the registered proprietor of the Lightning Ridge property, the first defendant Mr Arambasic, and the Sheriff of New South Wales, the second defendant.
The Lightning Ridge property has a somewhat tortuous history, which provides the backdrop for the tortious conduct alleged in the plaintiffs’ statement of claim. On 18 August 2014, Sackville AJA made orders in previous proceedings (2013/312662) concerning the Lightning Ridge property, giving…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lawrence v Arambasic

Details

AGLC: Lawrence v Arambasic [2020] NSWSC 1864
Case: [2020] NSWSC 1864
Decision Date: 18 December 2020

CaseChat Overview and Summary

The applicants, Lawrence, sought summary dismissal of proceedings brought against the Sheriff of NSW and another defendant, Arambasic, for trespass following the execution of a writ of possession. The proceedings were dismissed, and the applicants sought leave to appeal. The court had to determine whether the applicants had arguable causes of action in trespass to land, person or goods, and whether the application for summary dismissal should be granted under section 7A of the Sheriff Act. The applicants argued that the Sheriff was liable for trespass to land and person, and that the second defendant was liable for trespass to land and goods. The court held that the applicants had not disclosed any arguable causes of action in trespass to land, person or goods, and that the application for summary dismissal should be granted. The court found that the applicants' claims were not supported by the evidence, and that the proceedings against the second defendant were also dismissed. The court held that the applicants had failed to demonstrate that the Sheriff or the second defendant had committed any trespass, and that there were no arguable causes of action in the proceedings.

The court's reasoning was based on the evidence presented in the proceedings, and the applicable law. The court found that the applicants had not provided any evidence to support their claims of trespass, and that the claims were therefore not arguable. The court held that the applicants had failed to demonstrate that the Sheriff or the second defendant had committed any trespass, and that there were no arguable causes of action in the proceedings. The court also found that the applicants had not demonstrated that the proceedings against the second defendant were arguable, and that the proceedings were therefore dismissed. The court held that the applicants had failed to demonstrate that the second defendant had committed any trespass, and that there were no arguable causes of action in the proceedings. The court concluded that the application for summary dismissal should be granted, and that the proceedings against the Sheriff and the second defendant were dismissed.

Orders