Slattery v Dunn (No 2)

[2023] NSWLEC 128

Land and Environment Court

New South Wales

Medium Neutral Citation:

Slattery v Dunn (No 2) [2023] NSWLEC 128

Hearing dates:

22 November 2023

Date of orders:

22 November 2023

Decision date:

22 November 2023

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

See orders and directions at [24]

Catchwords:

PRACTICE AND PROCEDURE – whether to expedite matter for hearing – power to refer matter for mediation – NSW Land Registry Services (LRS) boundary determination pending

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 26, 56
Dividing Fences Act 1991 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:

Slattery v Dunn & Anor [2023] NSWSC 1205

Slattery v Dunn [2023] NSWLEC 107

Category:

Procedural rulings

Parties:

Rhonda Slattery (Applicant)
David Dunn (First Respondent)
Kim Dunn (Second Respondent)

Representation:

Counsel:
N Eastman SC (Applicant)
C Koikas (Respondents)

Solicitors:
Tyrell’s Planning Law (Respondents)

File Number(s):

2023/319606

Publication restriction:

Nil

JUDGMENT

Introduction and background

1. These Class 4 proceedings involve a boundary dispute between the applicant and the respondents. The applicant seeks, inter alia, injunctive relief to restrain the demolition by the respondent of a dividing fence.

2. The matter has a complex procedural history. It first came before the duty Judge Moore J at an ex parte hearing on Sunday, 8 October 2023. Moore J ordered the transfer of the proceedings to the Supreme Court. The proceedings were listed before the duty Judge in Equity, Henry J, who also heard the matter ex parte on Sunday, 8 October 2023.

3. Henry J explained to the applicant the usual undertaking as to damages where injunctive relief is sought. The applicant provided such an undertaking.

4. On Tuesday, 10 October 23 Henry J ordered that the proceedings be transferred back to this Court.

5. The matter first became before me as duty Judge on Thursday, 12 October 2023, and then again on Wednesday, 18 October 2023. On Thursday, 12 October 2023, I directed that the matter be set down for mediation on Monday, 16 October 2023.

6. The background to the dispute and to the commencement of the proceedings in Class 4 of this Court’s jurisdiction, and the orders made by me on Thursday, 12 and Wednesday, 18 October 2023, are set out in my reasons for judgment in Slattery v Dunn [2023] NSW LEC 107. I do not repeat that background and those orders here.

7. Suffice it to say, on Wednesday, 18 October 2023, following a terminated mediation, I made orders listing the matter for final hearing for one day on Thursday, 2 November 2023. On 18 October 2023, I also made directions in relation to the filing of evidence and submissions by the parties, the notification of any objections to evidence, and subject to the applicant continuing the usual undertaking as to damages, interlocutory injunctions in relation to works proposed by the respondents which the applicant alleges will interfere with and damage the existing dividing fence between the applicant’s property and the respondents’ property. I also encouraged the parties to obtain legal advice and representation.

8. On…