Young v King - [2011] NSWSC 793

Supreme Court

New South Wales

Medium Neutral Citation: Young v King [2011] NSWSC 793
Hearing dates: 22/07/2011
Decision date: 22 July 2011
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Order for removal into Supreme Court refused. Summons dismissed with costs.

Catchwords: PRACTICE - case management - application to transfer proceedings from District Court to Supreme Court where unresolved issues remained in related proceedings in other courts - application premature and lacking in utility - application dismissed without prejudice to further proceedings.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Land and Environment Court Act 1979 (NSW)
Category: Procedural and other rulings
Parties: Margo Young (Plaintiff)
Brendan King (First Defendant)
Kristina King (Second Defendant)
Warringah Shire Council (Third Defendant)
Representation: Counsel:
R D Newell (Plaintiff)
M L Wright (First and Second Defendants)
V Walsh (Solicitor) (Third Defendant)
Solicitors:
L C Muriniti & Associates (Plaintiff)
Terence Stern Solicitor & Attorney (First and Second Defendants)
DLA Piper Australia (Third Defendant)

File Number(s): 2011/198778

Judgment (ex tempore)

HIS HONOUR: The plaintiff, who is the plaintiff in certain proceedings in the District Court, seeks an order that those proceedings be removed into this court pursuant to s 140 of the Civil Procedure Act 2005 (NSW). There is an obvious problem with the making of such an order, because at least part of the relief claimed is beyond the jurisdiction of this court by reason of s 71 of the Land and Environment Court Act 1979 (NSW). That is because the first claim for relief is an order, for mandamus against the third defendant, a council and planning authority. It would also appear that claims for relief setting aside a development consent and construction certificate issued by the third defendant are also beyond the jurisdiction of this court.

When confronted with those problems, Mr Newell, who appeared for the plaintiff, sought leave to amend the summons so as to claim a further order that, if the District Court proceedings were transferred into this court, they would then be transferred into the Land and Environment Court pursuant to s 149B of the Civil Procedure Act .

The underlying difficulty in all this is that there were earlier proceedings in the Land and Environment Court, between the plaintiff and the first and second defendants, relating to certain development carried out by the first and second defendants. Those proceedings were resolved by consent. Unless and until the consent orders can be set aside (in the Land and Environment Court) there are serious obstacles to the plaintiff's obtaining other of the relief that she wishes to pursue, including relief for mandatory injunctions relating to support and the like and damages.

Apparently, there is an application pending in the Land and Environment Court for the earlier proceedings to be "reopened", which I take to be a reference to the setting aside of the relevant orders pursuant to UCPR r 36.15, or perhaps pursuant to the inherent power of the Land and Environment Court. Certainly, if the underlying agreement pursuant…

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 Young v King

Details

AGLC: Young v King [2011] NSWSC 793
Case: [2011] NSWSC 793
Decision Date: 22 July 2011

CaseChat Overview and Summary

The case of Young v King involved the applicant, Young, seeking to transfer proceedings from the District Court to the Supreme Court. The dispute centred around the resolution of issues that were still pending in other related proceedings. Young applied to the Supreme Court to transfer the matter, seeking to expedite the process and ensure consistency in the handling of the interconnected cases. The court had to determine whether the application was appropriate and whether it was in the interests of justice to proceed with the transfer.

The legal issues that the court considered included whether the application was premature given the unresolved issues in other courts and whether the transfer would serve any useful purpose. The court had to assess the utility of the transfer in light of the ongoing proceedings and the potential for confusion or inconsistency in the administration of justice. The court was also required to consider whether the application was made in good faith and whether it was necessary to preserve the interests of justice.

In its reasoning, the court found that the application to transfer was premature as significant issues were still pending in other related proceedings. The court concluded that the application lacked utility and that proceeding with the transfer would not serve the interests of justice. The court emphasised the importance of allowing all related matters to reach a stage of finality before considering further transfers. The application was dismissed without prejudice, indicating that the matter could be revisited once the other proceedings had concluded and the issues were resolved.

Orders