The Owners - Strata Plan No 61233 v Arcidiacono - [2018] NSWSC 1260

Supreme Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 61233 v Arcidiacono [2018] NSWSC 1260
Hearing dates: 25 July 2018
Date of orders: 14 August 2018
Decision date: 14 August 2018
Jurisdiction: Equity
Before: Darke J
Decision:
Leave to file cross claim refused.

Catchwords: PRACTICE AND PROCEDURE – pleadings – application for leave to file cross claim – leave to file cross claim refused because proposed claims untenable and bound to fail – clear that legal easements were validly created in 1839 – entitlement to set aside orders made ex parte resides in the person not given the opportunity to be heard – right is personal not proprietary in nature – cross-claimants lack standing to seek to set aside orders made in earlier proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58
Conveyancing Act 1919 (NSW), s 88K
Real Property Act 1900 (NSW), ss 28I, 28K
Uniform Civil Procedure Rules 2005 (NSW), rr 14.18, 14.28
Cases Cited: BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216
Cameron v Cole (1944) 68 CLR 571
Doe ex diem Antil v Hodges (1835) NSW Sel Cas (Dowling) 701; [1835] NSWSupC 36
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Category: Procedural and other rulings
Parties: The Owners – Strata Plan No 61233 (Plaintiff/First Respondent)
John Anthony Arcidiacono (First Defendant/First Applicant)
Anna Marie Arcidiacono (Second Defendant/Second Applicant)
The Owners – Strata Plan No 17719 (Second Respondent)
The Owners – Strata Plan No 73850 (Third Respondent)
Registrar-General for NSW (Fourth Respondent)
Representation:
Counsel:
Mr A Rogers (Plaintiff/First Respondent)
Mr C A Sweeney QC with Mr R Higgins (Defendants/Applicants)
Ms K Rees SC (Second Respondent)
Mr D F Elliott (Third Respondent)
Ms L Walsh (Fourth Respondent)
Solicitors:
Peter Prior & Co Solicitors (Plaintiff/First Respondent)
Russells Law (Defendants/Applicants)
Jane Crittenden Lawyer (Second Respondent)
JS Mueller & Co Lawyers (Third Respondent)
Office of the Registrar-General (Fourth Respondent)

File Number(s): 2016/187360
Publication restriction: None

Judgment

Introduction

These proceedings concern a passageway that runs between the buildings at 65 and 71 York Street, Sydney. The buildings are located in the block bounded by Barrack Street (to the north), York Street (to the east), Clarence Street (to the west), and King Street (to the south). The passageway runs for some distance into the block from York Street.
The passageway is the land contained in Lot 1 in Deposited Plan 619464. It is owned by the defendants, Mr and Mrs Arcidiacono. They also own the building at 100 Clarence Street (Lot 1 in Deposited Plan 17418). The passageway extends into the block as far as part of the rear boundary of 100 Clarence Street.
The registered proprietor of 71 York Street, namely The Owners – Strata Plan No 61233, is the plaintiff in these proceedings. The plaintiff seeks, amongst other things, declarations that it has the benefit of various easements over the passageway and that such easements were omitted from…

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: [2018] NSWSC 1260
Decision Date: 14 August 2018

CaseChat Overview and Summary

The case involved the Owners of Strata Plan No 61233 and Arcidiacono. The dispute centred around an application for leave to file a cross-claim by Arcidiacono, which the Owners opposed. The matter was heard in the Supreme Court of Queensland. The core legal issues revolved around the validity of legal easements created in 1839, the process for obtaining leave to file a cross-claim, and the standing of the cross-claimants to seek the setting aside of earlier proceedings.

The court had to determine whether the easements were validly created and whether Arcidiacono had standing to file a cross-claim. The court found that the easements were indeed validly created in 1839, and there was no basis to challenge their validity. The court also held that the right to seek the setting aside of orders made ex parte belonged to the person not given the opportunity to be heard, which was a personal right rather than a proprietary one. The cross-claimants did not have the necessary standing to pursue the setting aside of the earlier proceedings. Consequently, the court refused the application for leave to file the cross-claim.

The court's reasoning was grounded in the principle that legal easements, once validly created, are enduring and cannot be easily challenged. Additionally, the court emphasised the personal nature of the right to seek the setting aside of orders made ex parte, which meant that the cross-claimants, who were not the parties in the earlier proceedings, did not have the requisite standing. The court concluded that the proposed claims in the cross-claim were untenable and bound to fail.

The final orders of the court were that the application for leave to file the cross-claim was refused. The court determined that the legal easements were validly created in 1839 and that the cross-claimants lacked the standing to seek the setting aside of the earlier proceedings.

Orders