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Mourched v Transport for NSW

Mourched v Transport for NSW

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Case Copied 8 December 2020 26 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Mourched v Transport for NSW [2020] NSWSC 1766
Hearing dates: On the papers
Decision date: 08 December 2020
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Refuse leave for the filing of the proposed amended statement of claim.
2.   Direct the plaintiffs, if they wish to pursue this application, to serve by 16 December 2020 a further proposed amended statement of claim which addresses the pleading issues set out in these reasons.
3.   Direct the second defendant to notify the plaintiffs by 4pm on 17 December 2020 whether it opposes the grant of leave for the filing of that further proposed amended statement of claim.
4.   Otherwise stand over the plaintiffs’ notice of motion for directions in the Real Property List on 18 December 2020.

Catchwords:
CIVIL PROCEDURE - pleadings - application for leave to file amended statement of claim - plaintiffs seek orders for court imposed easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) - defendants oppose leave on the basis that it would be liable to be struck out where it discloses no reasonable cause of action - whether plaintiffs required to plead material facts relevant to matters in s 88K(2)(a)-(c) of the Conveyancing Act - held that matters in s 88K(2)(a)-(c) are preconditions to a claim for a court imposed easement - held that plaintiffs failure to plead facts relevant to whether the second defendant can be adequately compensated for loss or disadvantage and that all reasonable attempts have been (unsuccessfully) made to obtain easement otherwise would make amended statement of claim liable to be struck out - leave refused.

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 58
Conveyancing Act 1919 (NSW), ss 88K(1), 88K(2)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.6, 14.7, 14.8, 14.9, 14.10

Cases Cited:
117 York St. Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Arthur Young v Tieco International (1999) 182 LSJS 367
Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Bloom v Lepre (2008) 13 BPR 24,923
Bruce v Odhams Press Ltd [1936] 1 KB 697
Clough v Frog (1974) 4 ALR 615; 48 ALJR 481
Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14.638
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Cropper v Smith (1884) 26 Ch D 700
D & D Investments Pty Ltd v Yiasemides (2006) 13 BPR 24,103; [2006] NSWSC 1419
Gunns Ltd v Marr [2005] VSC 251
Horton v Jones (No 2) (1939) 39 SR (NSW) 305
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206
Ingot Equity Capital Markets Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136
Ketteman v Hansel Properties Ltd [1987] 1 AC 189; [1988] 1…

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.

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Details

Case: [2020] NSWSC 1766
Decision Date: 08 December 2020

CaseChat Overview and Summary

The plaintiffs, Mourched, sought leave to amend their statement of claim against Transport for NSW, requesting a court-imposed easement pursuant to section 88K of the Conveyancing Act 1919 (NSW). The defendants opposed the application, arguing that the proposed amended statement of claim would disclose no reasonable cause of action and thus be liable to be struck out. The central issue before the court was whether the plaintiffs were required to plead material facts relevant to certain conditions specified in sections 88K(2)(a)-(c) of the Conveyancing Act before being granted leave to amend their statement of claim.

The court examined the statutory preconditions outlined in section 88K(2)(a)-(c) and determined that these conditions must be met for a claim for a court-imposed easement to succeed. Specifically, the plaintiffs needed to demonstrate that the second defendant could be adequately compensated for any loss or disadvantage, and that all reasonable attempts to obtain the easement through other means had been exhausted without success. The court found that the plaintiffs' failure to adequately address these conditions in their proposed amended statement of claim rendered it vulnerable to being struck out. Consequently, the court refused the plaintiffs' application for leave to file an amended statement of claim.

Given the court's ruling, no further amendment to the statement of claim was allowed. The plaintiffs were effectively precluded from proceeding with their claim for a court-imposed easement without first addressing the deficiencies identified by the court in relation to the statutory preconditions.

Orders