The Owners - Strata Plan No 1731 v Bailey - [2014] NSWSC 875

Supreme Court

New South Wales

Medium Neutral Citation: The Owners - Strata Plan No 1731 & Anor v Bailey & Ors [2014] NSWSC 875
Hearing dates: 13 June 2014
Decision date: 30 June 2014
Jurisdiction: Equity Division
Before: Black J
Decision:
Orders made for defendant's amended notice of motion to be dismissed.

Catchwords:
PROCEDURE - application for summary dismissal of plaintiffs' claim under Uniform Civil Procedure Rules 2005 (NSW) r 13.4 - whether proceedings are frivolous or vexatious in nature - where plaintiffs do not have a caveatable interest in relevant land - whether plaintiffs have standing to seek relief under Supreme Court Act 1970 (NSW) ss 65, 66 - whether summons is an abuse of process.
REAL PROPERTY - Torrens title - caveats against primary applications - whether lodgement of caveat either expressly or by necessary implication ousts Court's jurisdiction to make orders or grant relief under Supreme Court Act ss 65, 66.
Legislation Cited: - Civil Procedure Act 2005 (NSW) ss 56, 58(1), 58(2)
- Conveyancing Act 1919 (NSW) s 88K(1)
- Real Property (Amendment) Bill 1970 (NSW)
- Real Property (Caveats) Amendment Act 1986 Sch 1(1)
- Real Property Act 1900 (NSW) ss 12A, 14, 14A, 17, 74B, 74C
- Real Property Amendment Act 1996 (NSW) Sch 1
- Supreme Court Act 1970 (NSW) ss 65, 66
- Uniform Civil Procedure Rules 2005 (NSW) r 13.4
Cases Cited: - Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
- Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493
- Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd [1998] HCA 49; (1998) 194 CLR 247
- Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256
- Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
- Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76
- Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; (2013) 247 CLR 149
- Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713
- Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740
- Moorebank Recyclers Pty Ltd v Tanlan Pty Ltd [2012] NSWCA 445
- Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27
- Public Trustee v Murray (1922) 22 SR (NSW) 555
- Secure Funding Pty Ltd v Coughlin [2009] NSWSC 384; (2009) 74 NSWLR 687
- Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607
- Shaw v New South Wales [2012] NSWCA 102
- Spencer v Commonwealth [2010] HCA 28; (2010) 248 CLR 118
- Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591
- Walsh v Alexander [1913] HCA 24; (1913) 16 CLR 293
Category: Interlocutory applications
Parties: The Owners - Strata Plan 1731 (First Plaintiff)
Robert Clive Linke (Second Plaintiff)

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: [2014] NSWSC 875
Decision Date: 30 June 2014

CaseChat Overview and Summary

The Owners of Strata Plan No 1731 sought summary dismissal of an action brought against Mr Bailey, which related to claims involving the strata title and alleged breaches of the Strata Schemes Management Act 1996 (NSW). The application was brought under the Uniform Civil Procedure Rules 2005 (NSW) rule 13.4, arguing the proceedings were frivolous or vexatious. The Local Court had to determine whether the plaintiffs had standing to seek relief under the Supreme Court Act 1970 (NSW) sections 65 and 66, and whether the summons was an abuse of process. Additionally, the case raised questions about the effect of lodging a caveat on the court's jurisdiction to grant relief under the Supreme Court Act.

The court examined the plaintiffs' standing and the effect of the caveat on the court's jurisdiction. It concluded that the plaintiffs did not have a caveatable interest in the relevant land and thus could not lodge a caveat. Consequently, the caveat was invalid. The court held that the caveat did not oust the jurisdiction of the court to make orders or grant relief under the Supreme Court Act sections 65 and 66, as the plaintiffs' lack of standing was not a result of the caveat, but rather their own failure to hold a caveatable interest.

Ultimately, the court dismissed the plaintiffs' claim as frivolous and vexatious. It found that the plaintiffs had no standing to seek relief under the Supreme Court Act sections 65 and 66, and the summons was an abuse of process. The court granted the application for summary dismissal and ordered the plaintiffs to pay the defendant's costs of the application.

Orders