Streeter v Zhang - [2024] VSCA 167

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0065

JOHN STREETER	First Applicant
AND
ADA STREETER	Second Applicant
v
JIE ZHANG	First Respondent
AND
LIXIA CAO ZHANG	Second Respondent
S EAPCI 2024 0066
JOHN STREETER	First Applicant
AND
ADA STREETER	Second Applicant
V
JIE ZHANG	First Respondent
AND
LIXIA CAO ZHANG	Second Respondent

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JUDGES:	NIALL and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2024
DATE OF JUDGMENT:	18 July 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 167
JUDGMENT APPEALED FROM:	Zhang v Streeter (Ruling) (Supreme Court of Victoria, Ginnane J, 31 May 2024)

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PRACTICE AND PROCEDURE – Interlocutory appeal – Where respondents appealed on questions of law from the Magistrates’ Court to the Trial Division of the Supreme Court – Whether judge erred in granting leave to amend notices of appeal to restate questions of law – Judge had jurisdiction to permit restatement – No error in judge’s exercise of discretion to grant leave – Application for leave to appeal refused.

Civil Procedure Act 2010, ss 7, 8, 9; Magistrates’ Court Act 1989, s 109.

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Counsel
Applicants:		In person
Respondents:		Ms TJ Acreman
Solicitors
Applicants:	--
Respondents:	LWS Lawyers

NIALL JA
KENNY JA:

These proceedings arise out of an underlying dispute between neighbours living in residential properties in East Malvern. The applicants, John Streeter and Ada Streeter, are the registered proprietors of 3 Durward Road, East Malvern having acquired the property on 8 July 1997. The respondents, Jie Zhang and Lixia Cao Zhang, have been the registered proprietors of the neighbouring property at 5 Durward Road, East Malvern since 5 January 2005. The two properties are separated by a fence.
It appears that the fence dividing the properties was in its current position at the time the applicants acquired their property and that it is not erected along the title boundary but encroaches onto the applicants’ land to a relatively small extent. The applicants commenced a proceeding in the Magistrates’ Court, seeking orders that a new fence be erected and that it be erected on the boundary as recorded in the relevant certificates of title. The proceeding was brought in trespass and under the Fences Act 1968.
In response, the respondents advanced a claim of adverse possession in relation to the land. We will refer to the land the subject of the claim of adverse possession as ‘the disputed land’. The disputed land is a triangular strip that is approximately 26 centimetres wide at its widest.
The magistrate dismissed the claim of adverse possession and ordered that the fence be reinstated on the boundary as reflected in the certificates of title. The respondents appealed from that decision to the Trial Division of this Court on questions of law pursuant to s 109 of the Magistrates Court Act 1989. At the conclusion of the hearing of those appeals, on 10 May 2024, the judge permitted the respondents to apply for leave to amend their notices of appeal so as to replead…

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 Streeter v Zhang

Details

AGLC: Streeter v Zhang [2024] VSCA 167
Case: [2024] VSCA 167
Decision Date: 18 July 2024

CaseChat Overview and Summary

In the matter of Streeter v Zhang, the respondents appealed to the Trial Division of the Supreme Court on questions of law from the Magistrates’ Court. The primary issue before the court was whether the trial judge had erred in granting leave to amend the notices of appeal to restate the questions of law. The respondents argued that the trial judge's decision to permit the restatement was an abuse of discretion and outside the scope of the court's jurisdiction. The appellants, on the other hand, contended that the trial judge's actions were within the bounds of legal authority and discretion.

The Supreme Court examined the statutory provisions governing the amendment of notices of appeal, specifically sections 7, 8, and 9 of the Civil Procedure Act 2010, and section 109 of the Magistrates’ Court Act 1989. The court concluded that the judge had the requisite jurisdiction to permit the restatement of the questions of law in the notices of appeal. Furthermore, the court found that there was no error in the judge’s exercise of discretion to grant leave for the amendment. Consequently, the application for leave to appeal was refused as the respondents had not demonstrated any grounds for the Supreme Court to intervene.

The Supreme Court's decision was grounded in a meticulous analysis of the relevant statutory framework, affirming the judge's procedural discretion in allowing amendments to the notices of appeal. The respondents' appeal was dismissed, and the trial judge’s actions were upheld as lawful and within the appropriate legal discretion. This outcome ensures that the court retains flexibility in managing procedural matters to facilitate the fair and efficient resolution of legal disputes.

Orders