Mourched v Transport for NSW

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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…

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Details
Case
[2020] NSWSC 1766
Decision Date

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.

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