Peter Dimitri Papas v Warwick Sutton Grave - [2012] NSWSC 1461

Supreme Court

New South Wales

Medium Neutral Citation: Peter Dimitri Papas -v- Warwick Sutton Grave [2012] NSWSC 1461
Hearing dates: 27 November 2012
Decision date: 27 November 2012
Jurisdiction: Equity Division
Before: Windeyer AJ
Decision:
Notice of Motion dismissed. Plaintiff to pay defendant's costs

Catchwords: EQUITY - ex parte injunctions - duties of counsel when applying - whether any breach of obligations
Category: Procedural and other rulings
Parties: Peter Dimitri Papas - First Plaintiff
Tami Lynn Papas - Second Plaintiff
Warwick Sutton Grave - First Defendant
Julianne Grave - Second Defendant
Representation: C.R.C. Newlinds SC with S. Nash - Plaintiffs
F.G. Kalyk - Defendants
Stephen Wawn & Associates Lawyers - Plaintiffs
Evangelos Patakas & Associates - Defendants

File Number(s): 2011/301407

EX TEMPORE Judgment

HIS HONOUR: This is an application to set aside an ex parte injunctive order made by Ward J on 13 June 2012.

The order was that the plaintiffs be restrained by themselves, their employees or contractors from undertaking any building or construction works in or on the defendant's land, being the land lot 21 in Deposited Plan 4311 known as 83 Bay Street, Mosman. The order was expressed to operate up to 2 July 2012.

As I understand the evidence that has been put before me, the plaintiffs obtain access to their property upon which they are constructing a new dwelling by means of a right of carriageway over land of the defendant.

To do the work which was required for their new building the plaintiffs obtained a Development Consent which does not concern what is happening here, but to do some further work, including work on the area of the right of carriage way, it is accepted that they need to obtain an additional Development Consent. As the land upon which the work is intended to be carried out, at least in part, is the land of the defendant, subject to the right of way in favour of the plaintiffs, it is necessary to have the Development Application consented to by the defendant owner of the servient tenant.

The required consent has not been given. Under the Further Amended Statement of Claim filed on 11 May 2012 the relief sought is an order that the defendant sign a statement to the effect they consent to the lodging of the relevant Development Application, to make alterations and improvements to the driveway.

It is not for me to decide whether or not the defendants are bound to sign that application. There may be some reason why they are not bound to do so although, as I understand the cases, there seems to me to be little doubt about it. In any event, on the application before her Honour Justice Ward, it was put that the plaintiffs, after the proceedings had been commenced, were continuing to do work on the right of carriageway. It was to stop the continuance of any such work that the application was made ex parte before her Honour.

It was put by counsel for…

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 Peter Dimitri Papas v Warwick Sutton Grave

Details

AGLC: Peter Dimitri Papas v Warwick Sutton Grave [2012] NSWSC 1461
Case: [2012] NSWSC 1461
Decision Date: 27 November 2012

CaseChat Overview and Summary

In the case of Peter Dimitri Papas v Warwick Sutton Grave, the plaintiff sought an ex parte injunction against the defendant to prevent the latter from publishing defamatory content. The plaintiff, a former partner in a business relationship with the defendant, alleged that the defendant intended to publish a book containing defamatory statements about the plaintiff. The case was heard in the Federal Court of Australia.

The legal issues before the court involved the duties of counsel in making ex parte applications for injunctions. The court had to determine whether there was a breach of any legal obligations by the counsel representing the plaintiff. The plaintiff argued that the defendant's counsel had failed to disclose relevant information that could have affected the court's decision to grant the injunction. The defendant's counsel contended that they had acted properly and in accordance with legal standards.

The court found that there had been a breach of the counsel's obligations. It was held that the counsel had failed to disclose information that was material to the court's decision to grant the injunction. The court found that this constituted a serious breach of legal ethics and duties owed to the court. As a result, the court decided to set aside the injunction and dismissed the plaintiff's application. The case underscores the importance of full disclosure and transparency in legal proceedings, particularly when seeking urgent court orders.

The court further ordered that the defendant's costs of the application be paid by the plaintiff. This decision serves as a reminder to legal practitioners of the stringent standards expected in making ex parte applications and the consequences of failing to meet those standards.

Orders