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Young v King (No.2)

Young v King (No.2)

Case [2009] NSWLEC 125 31 July 2009

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Unconscionable Conduct

Civil Litigation & Procedure

Property Law

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Land and Environment Court

of New South Wales

CITATION: Young v King (No.2) [2009] NSWLEC 125
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Margo Young
FIRST RESPONDENT
Brendan King
SECOND RESPONDENT
Kristina King

FILE NUMBER(S): 40417 of 2003

CORAM: Sheahan J

KEY ISSUES: PRACTICE AND PROCEDURE :- Notices of Motion to reopen proceedings, referral of proceedings to a mediator

LEGISLATION CITED: Civil Procedure Act 2005
Land and Environment Court Act 1979

CASES CITED: Deputy Commissioiner of Taxation v Meredith (No.2) [2008] NSWCA 133
Haig v Minister Administering the National Parks and Wildlife Act (1994) 85 LGERA 143
Lidoframe Pty Ltd (as Trustee for Logan Cypress & Framing Trust) v State of New South Wales [2006] NSWSC 1262
Michales v Dimoski [2007] NSWLEC 443
Pittwater Council v Brown Brothers Waste Contractors Pty Ltd [2009] NSWLEC 50
Sutherland Shire Council v Sawyer 109 LGERA 409; [2000] NSWLEC 162
Wexford Pty Ltd v Praveen Meckraj Doolub [2008] NSWLEC 952
Woollahra Municipal Council v Ferella (2005) 141 LGERA 166, [2005] NSWLEC 402

DATES OF HEARING: 26 March 2009, 12 May 2009, 26 May 2009, 9 June 2009, 7 July 2009, 23 July 2009, 29 July 2009

DATE OF JUDGMENT:
31 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr R Newell
SOLICITORS
L C Muriniti & Associates
RESPONDENT
Mr M Wright
SOLICITORS
Terence Stern

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

31 July 2009

40417 of 2003 Young v King (No.2)
JUDGMENT

Introduction

1 His Honour: The purposes of this judgment are (1) to provide reasons for an order I propose to make referring the substantive dispute between the parties for external mediation, and (2) to summarise what I know of the matter in order to assist the mediator.

2 This is essentially – or, at least, it started out as – a dispute between two neighbours about relatively routine or minor drainage works, but, if this court has ever seen a case of civil litigation gone seriously wrong, this would be it. Final orders were made in March 2004 (by McClellan J), but there are four extant Notices of Motion now before the court, more than five years later.

3 Related proceedings between the parties are presently also running in the District Court. Warringah Council is a party to those District Court proceedings, but not to these Land and Environment Court proceedings. In addition, this court has been told that Mrs Young intends separately suing her former legal representatives over what has occurred.

4 I have declined to hear and determine the Notices of Motion, insisting that the legal representatives try to reach some agreement on a dispute resolution process which can be accepted by the parties and sanctioned by the court. Both sides contend that they have at various stages sought to initiate a mediation process, without success, and, in September 2003, before the court had the statutory power to order a mediation, Cowdroy J ordered…

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 (No.2)

Details

AGLC: Young v King (No.2) [2009] NSWLEC 125
Case: [2009] NSWLEC 125
Decision Date: 31 July 2009

CaseChat Overview and Summary

This is a case concerning a long-standing dispute between two neighbours, Margo Young and the Kings, over drainage works on the boundary between their properties. The Land and Environment Court of New South Wales heard four notices of motion from Mrs Young, seeking to reopen proceedings and alleging contempt of court by the Kings. The key issues before the court were whether to refer the substantive dispute to external mediation and to summarize the known facts to assist the mediator. The court declined to hear and determine the notices of motion, instead insisting that the parties reach an agreement on a dispute resolution process. After several failed attempts, the parties eventually agreed to mediation, with the Hon Mahla Liane Pearlman AO appointed as the mediator. The court referred the proceedings to mediation, with the parties to share the costs equally, but allowing for the possibility of Warringah Council contributing to those costs. The court also granted the parties liberty to apply for further orders as needed.

The court's decision was based on its duty to resolve all matters in controversy between the parties and avoid multiplicity of proceedings, as well as the significant costs already incurred by both sides. The court emphasized the importance of mediation in resolving the dispute, and the need for expert assistance and the involvement of Warringah Council to ensure a successful outcome. The court provided background information and relevant history of the dispute to the mediator, but made no findings on the merits, as not all relevant evidence had been tested. The court ordered the proceedings to be referred to mediation, with the parties to share the costs equally and having liberty to apply for further orders as needed.

Orders