Wirepa v Hill - [2023] NSWSC 1394

Supreme Court

New South Wales

Medium Neutral Citation: Wirepa v Hill [2023] NSWSC 1394
Hearing dates: 6 & 13 October 2023
Date of orders: 16 November 2023
Decision date: 23 November 2023
Jurisdiction: Equity
Before: Slattery J
Decision:
Summons dismissed under Civil Procedure Act 2005, s 61 and under Uniform Civil Procedure Rules 2005, r 12.7. Order that the plaintiff pay 80 per cent of the defendants’ costs of the proceedings on the ordinary basis and may not commence further proceedings seeking relief that is substantially the same as the relief sought in the Summons without first paying the defendants’ costs. On dismissal of the Summons the defendants’ Cross-Claim is transferred to the District Court pursuant to Civil Procedure Act, s 146. The operation of the above orders is stayed until 8 December 2023 upon terms. Liberty to apply is granted.

Catchwords:
LAND LAW - easements – creation of easements – plaintiff’s rural land is only accessible from a nearby public road through the defendants’ adjoining land – plaintiff seeks the grant of an easement under Conveyancing Act 1919, s 88K to regularise her informal use of the defendants’ land pursuant to a licence from the defendants – defendants’ Cross-Claim for trespass and nuisance contends the plaintiff has used the defendants’ property other than for passage to and from the public road and that trespassed upon the defendants’ land and caused nuisance to the defendants.
CIVIL PROCEDURE – Summary Disposal – Dismissal of proceedings – want of due despatch – plaintiff has not taken all ordered procedural steps to progress her Summons to a hearing – plaintiff no longer retains solicitors – plaintiff has not prepared survey documentation, and appears cannot demonstrate an immediate capability to fund the payment of the necessary compensation to the defendants for any grant of relief under Conveyancing Act, s 88K – plaintiff gives undertaking to the Court to prosecute the proceedings with diligence – whether the proceedings should be struck out pursuant to Civil Procedure Act 2005, s 61 or under Uniform Civil Procedure Rules 2005, rr 12.7 or 13.4 – issues on the Cross-Claim raise damages questions that lie within the jurisdiction of the District Court - if the Summons is struck out, whether the Cross-Claim should be transferred to the District Court under Civil Procedure Act, s 146.

Legislation Cited:
Civil Procedure Act 2005, ss 56(2), 98(4)(c), 146
Conveyancing Act 1919, s 88K
District Court Act 1973, ss 44, 46, 140
Uniform Civil Procedure Rules 2005, rr r 7.36, 12.7. 13.4

Cases Cited:
Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43
Horizons (Asia) Pty Ltd v CLC Deliveries Pty Ltd [2021] NSWSC 1486
Nahatav v Robertson [2023] NSWSC 642

Category: Procedural rulings
Parties: Plaintiff: Silvana Liliana Wirepa
First Defendant: Christopher James Hill
Second Defendant: David Graham Hill
Third Defendant: Richard Thomas McLeod
Representation:
Counsel:
Defendant: M. Fernandes
Solicitors:
Plaintiff: in person
Defendant: Rob Webb, Watson Webb lawyers

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 Wirepa v Hill

Details

AGLC: Wirepa v Hill [2023] NSWSC 1394
Case: [2023] NSWSC 1394
Decision Date: 23 November 2023

CaseChat Overview and Summary

The matter of Wirepa v Hill involves the plaintiff, Wirepa, seeking the establishment of an easement over the defendants' land, Hill, to provide access to her rural property from a nearby public road. The defendants, Hill, have filed a cross-claim alleging trespass and nuisance by the plaintiff. The case was heard in the Local Court of New South Wales.

The central legal issues before the court were whether the plaintiff could establish the easement under the Conveyancing Act 1919, section 88K, and if the defendants' cross-claim should be transferred to the District Court. The court had to determine if the plaintiff had adequately demonstrated her need for an easement and whether the cross-claim's damages issues fell within the District Court's jurisdiction.

The court found that the plaintiff had not diligently pursued her summons, leading to its dismissal. The plaintiff had not complied with procedural requirements, lacked survey documentation, and could not demonstrate immediate financial capability to compensate the defendants. Despite the plaintiff's undertaking to prosecute the proceedings with diligence, the court was not satisfied that the proceedings would be pursued with due despatch. Consequently, the court dismissed the summons and considered whether to transfer the cross-claim to the District Court, given that the damages issues were beyond its jurisdiction.

Ultimately, the court decided to strike out the plaintiff's summons due to the lack of due despatch and ordered the cross-claim to be transferred to the District Court for the resolution of the damages issues.

Orders