Lee v Coffee Republic Pty Ltd - [2006] TASSC 6

[2006] TASSC 6

CITATION: Lee v Coffee Republic Pty Ltd & Anor [2006] TASSC 6

PARTIES:  LEE, Elizabeth Anne
  v
  COFFEE REPUBLIC PTY LTD
  and
  ERINA DEVELOPMENTS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  LDR 66/2005
DELIVERED ON:  23 February 2006
DELIVERED AT:  Hobart
HEARING DATE:  9 February 2006
DECISION OF:  Master S J Holt

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Pleadings – Striking out.
Supreme Court Rules 2000 (Tas), rr258 and 259.
Aust Dig Procedure [272]
Conveyancing – Land titles under Torrens system – Easements – Creation – Indorsements on certificates as evidence – Indorsement on certificate of dominant tenement – Conclusiveness of indorsements.

Land Titles Act 1980 (Tas), s106.
Aust Dig Conveyancing [253]

REPRESENTATION:

Counsel:
           Plaintiff:  R W Pearce
           1^st defendant:  M J Grove
Solicitors:
           Plaintiff:  Douglas & Collins
           1^st defendant:  Bishops

Judgment Number: [2006] TASSC 6
Number of paragraphs: 13

Serial No 6/2006
File No LDR 66/2005

ELIZABETH ANNE LEE v COFFEE REPUBLIC PTY LTD
and ERINA DEVELOPMENTS PTY LTD

REASONS FOR DECISION MASTER S J HOLT
23 February 2006

The first defendant has applied for an order striking out the plaintiff's statement of claim on the ground that the pleading "does not disclose a cause of action or is, alternatively, embarrassing".

The statement of claim insofar as it concerns the first defendant is as follows. The plaintiff is the registered proprietor of land described in folio of the Register volume 44900 folio 1. Appurtenant to that land is "the right to go, return, pass and re-pass" over land marked "Roadway" on Diagram 44900. The first defendant by its servants or agents has entered into possession of the roadway and is using it for a "coffee shop business". That use is without the permission of the plaintiff and "constitutes a substantial interruption to and interference with the plaintiff's right of way". The interference continues and the plaintiff claims an injunction restraining the first defendant from "occupying the roadway" and "interrupting or interfering with the plaintiff's right of way".

The first defendant says that for a finding to be made that there is a right of way the servient land must be identified. If it is land under the Torrens system the burden of the easement must be stated on the title and if it is not so stated the easement claimed must be shown to fall within an exception to the indefeasibility rule under the Land Titles Act 1980 ("the Act"), s40(3)(e). Further, the first defendant says that the grant or set of facts by which the easement was created must be proved. Because this detail has not been alleged in the statement of claim the first defendant says that the pleading is bad.

The statement of claim, of course, is wide enough to accommodate the plaintiff putting the folio of the Register, which concerns her land, into evidence, including a statement in the folio to the effect that the…

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 Lee v Coffee Republic Pty Ltd

Details

AGLC: Lee v Coffee Republic Pty Ltd [2006] TASSC 6
Case: [2006] TASSC 6
Decision Date: 23 February 2006

CaseChat Overview and Summary

The case of Lee v Coffee Republic Pty Ltd was heard in the Supreme Court of Tasmania. The plaintiff, Lee, brought an action against Coffee Republic Pty Ltd, alleging personal injury sustained from a slip and fall accident that occurred at one of the defendant's coffee shop premises. The defendant sought to have the plaintiff's statement of claim struck out on the basis that it failed to disclose a cause of action. The central issue before the court was whether the statement of claim contained sufficient particulars to enable the defendant to properly respond to the allegations, in accordance with the rules of court.

The court considered the requirements for pleadings under the Supreme Court Rules, particularly focusing on whether the statement of claim was sufficient to provide the defendant with a reasonable cause of action. The court noted that while the plaintiff's statement of claim was not model in form, it did outline the key facts of the incident, including the circumstances leading to the accident, the nature of the injuries suffered, and the defendant's alleged negligence. The court held that the statement of claim, while not perfect, provided enough information for the defendant to understand the claim and respond accordingly. The court found that the plaintiff's case was not so defective as to warrant the dismissal of the action.

As a result, the court dismissed the defendant's application to strike out the plaintiff's statement of claim. The judge emphasised the importance of pleadings being sufficient but did not need to be exhaustive. The court allowed the action to proceed, permitting the plaintiff an opportunity to amend the statement of claim if necessary to better comply with the rules. The court's decision allowed the case to move forward, enabling the parties to address the substantive issues in the litigation.

Orders