Tutzing Pty Ltd v Upper Lachlan Shire Council - [2021] NSWSC 1221

Supreme Court

New South Wales

Medium Neutral Citation: Tutzing Pty Ltd v Upper Lachlan Shire Council [2021] NSWSC 1221
Hearing dates: 24 September 2021
Date of orders: 24 September 2021
Decision date: 24 September 2021
Jurisdiction: Equity
Before: Darke J
Decision:
Application granted for joinder as defendants.

Catchwords:
PRACTICE AND PROCEDURE – parties – joinder – proceedings for specific performance of a Deed – application by third parties to become defendants – whether applicants are necessary parties to the proceedings – order sought by plaintiff would require defendant Council to proceed to close a public road that adjoins land owned by applicants – held that applicants would be directly affected by orders sought by the plaintiff – applicants held to be necessary parties to the proceedings – application for joinder granted

Legislation Cited:
Roads Act 1993 (NSW), ss 38A-F
Uniform Civil Procedure Rules 2005 (NSW), r 6.24

Cases Cited:
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Lithgow State Mine Railway Ltd v City of Greater Lithgow Mining Museum Inc [2019] NSWSC 1131
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Tasker v Small (1837) 3 My & Cr 63
Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2019] NSWSC 1547

Category: Procedural rulings
Parties: Tutzing Pty Ltd (Plaintiff/First Respondent)
Upper Lachlan Shire Council (Defendant/Second Respondent)
Cameron John Willis (First Applicant)
Tania Renae Willis (Second Applicant)
Representation:
Counsel:
Mr B Coles QC with Mr G Farland (Plaintiff/First Respondent)
Mr G McNally SC with Mr D Stewart (Applicants)
Solicitors:
B. Bilinsky & Co Solicitors and Conveyancers (Plaintiff/First Respondent)
Pikes & Verekers Lawyers (Defendant/Second Respondent)
Johnson and Sendall Lawyers (Applicants)

File Number(s): 2021/00123548
Publication restriction: None

Judgment – EX TEMPORE

The plaintiff is the owner of a rural property near Crookwell. The land is within the boundaries of the defendant Council. The plaintiff obtains access to its property via a public road that is vested in the Council. That public road runs off Roslyn Road in a northerly direction towards the plaintiff's property.
The plaintiff and the Council entered into a Deed on 11 December 2018. That Deed is the central subject of these proceedings. By its Statement of Claim filed on 4 May 2021, the plaintiff seeks orders in the nature of a specific performance to compel the Council to perform its obligations under the Deed. The Council, by its Defence filed on 15 June 2021, disputes the plaintiff's claim.
By a Notice of Motion filed on 1 July 2021, Cameron Willis and Tania Willis seek orders for their joinder to the proceedings as the second and third defendants respectively. They claim to be necessary parties to the proceedings on the basis that the relief sought by the plaintiff would, if granted, directly affect their rights in relation to the public road.
The applicants are the owners of lots 2 and 4 in Deposited Plan 536001. The lots adjoin the eastern…

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: [2021] NSWSC 1221
Decision Date: 24 September 2021

CaseChat Overview and Summary

In Tutzing Pty Ltd v Upper Lachlan Shire Council, Tutzing, the plaintiff, sought specific performance of a deed against Upper Lachlan Shire Council, the defendant. The dispute centred around a public road that adjoined land owned by the plaintiff and two other entities, who were not parties to the original action but sought to join the proceedings. The applicants, who were third parties, argued that the plaintiff's order would require the council to close the public road, which would have a direct impact on their properties and interests.

The court was required to determine whether the applicants were necessary parties to the proceedings. This involved assessing whether the applicants' interests would be directly affected by the orders sought by the plaintiff and whether their absence from the proceedings would result in a failure of justice. The applicants contended that the council's compliance with the plaintiff's order would necessitate the closure of the public road, which would significantly impact their land and rights.

The court found that the applicants would indeed be directly affected by the orders sought by the plaintiff. The closure of the public road would have implications for the applicants' properties and their rights over the adjoining land. Consequently, the court held that the applicants were necessary parties to the proceedings. The application for joinder was granted, allowing the applicants to become defendants in the case. This decision ensured that all parties with significant interests in the matter were properly represented and that the court could make a comprehensive and fair determination.

No further orders were specified in the decision provided.

Orders