YIHE (Australia) Pty Ltd v Omaya Investments Pty Ltd

[2010] NSWSC 1211

CITATION:	YIHE (Australia) Pty Ltd v Omaya Investments Pty Ltd [2010] NSWSC 1211
HEARING DATE(S):	24 September 2010
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	24 September 2010
DECISION:	Motion for expedition dismissed with costs.
CATCHWORDS:	PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Setting down for trial – whether hearing should be expedited – self-induced urgency – disruption to defendant by expedition
LEGISLATION CITED:	(NSW) Conveyancing Act 1919, s 88K
CATEGORY:	Procedural and other rulings
PARTIES:	YIHE (Australia) Pty Ltd (plaintiff) Omaya Investments Pty Ltd (first defendant) Con Andrew Constantine (second defendant) Al Maha Pty Ltd (third defendant)
FILE NUMBER(S):	SC 10/287767
COUNSEL:	PJ McEwan w S Nash (plaintiff) R Bellamy (first defendant) C Evans (second defendant) H Stowe (third defendant)
SOLICITORS:	Bernard Chiu Legal & Business Solutions (plaintiff) Diamond Conway (first defendant) Tim Weissel Solicitor (second defendant) McLachlan Thorpe Partners (third defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday, 24 September 2010

2010/287767 YIHE (Australia) Pty Ltd v Omaya Investments Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: The plaintiff is developing land in the so-called Strathfield triangle, and claims expedition of the hearing of its application for the imposition of an easement or easements pursuant to (NSW) Conveyancing Act 1919, s 88K, permitting it (officially) to swing a crane, – but now narrowed to erect scaffolding, over its neighbours’ properties – which it says is reasonably necessary to permit its proposed development to proceed. While the second defendant does not oppose expedition the first and third defendants, who I note are associated, do so.

2 Opposition to an application for a claim for expedition normally causes the court’s ears to prick and eyes to search very keenly for collateral advantages to be gained from delay. Indeed, it has been said more than once that opposition to a claim for expedition is ordinarily the best way to ensure that it succeeds. Nonetheless, that is not inevitably so.

3 A claim for expedition, if successful, gains priority over the hearing of other cases, all of which have their own claim to be heard by the court in due course.

4 In this case, the urgency claimed is that delay in obtaining the easements will expose the plaintiff to extension of time claims and liquidated damages under the building contract which it has entered into with its builder.

5 I am not at this stage convinced by the defendants’ arguments that the plaintiff having commenced these proceedings, any delay in obtaining the easements would not be caused by the plaintiff for the purposes of the liquidated damages provision. But what is compelling in my mind is that – the plaintiff contracted its builder on 9 August 2010, including the liquidated damages provisions, when it knew that it did not have the requisite easements, had not even instituted proceedings to see if they could be obtained, and knew that its application would be opposed. The plaintiff has owned the relevant development site since September 2009; it has known, at least since February 2010, that the first defendant refuses categorically to grant an easement; and it has itself observed, at least since 5 May 2010, that its builder was unable to commence construction works until the requisite easements were obtained.

6 To grant expedition in these circumstances would be to reward the self-induced creation of urgency.

7 In my mind, that is all the more telling where the first defendant has filed evidence on the present application that the grant of urgency in this case would disrupt its own commercial activities and, by distracting the efforts of its director, put at risk the completion by the first defendant of its obligations under other contracts, potentially exposing it to claims for liquidated damages under those contracts. Inconvenience and disruption to a respondent arising from an expedition of proceedings has to be weighed in the balance with the hardship to the applicant from delay.

8 The combination of the disruption to the first defendant with the fact that the urgency is self-induced requires that this application for expedition be refused.

9 I order that the motion filed 30 August 2010 be dismissed with costs. I direct that the defendants serve any affidavit evidence upon which they propose to rely by 5 November 2010. I adjourn the proceedings to 12 November 2010 at 9.00 am before the Registrar for further directions.

10 I direct that each party may obtain and serve the report of an expert valuer as to the appropriate quantum for compensation for the easements sought by the plaintiff, and of an expert engineer as to the reasonableness of the easement sought by the plaintiff.

11 I grant leave to the defendants to contact my associate to apply for a suspension of the direction for the filing and service of the defendants’ evidence, in the event that a motion for security for costs is filed and served by 1 October 2010.

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