Young v Richmond Valley Council - [2020] NSWSC 514

Supreme Court

New South Wales

Medium Neutral Citation: Young v Richmond Valley Council [2020] NSWSC 514
Hearing dates: On the papers
Date of orders: 08 May 2020
Decision date: 08 May 2020
Jurisdiction: Equity
Before: Darke J
Decision:
Plaintiff’s Statement of Claim ordered to be struck out.

Catchwords:
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — claim to ownership of lands by virtue of adverse possession – Defendant Council contends that claim is bound to fail because lands are public roads that vested in it pursuant to s 232 of the Local Government Act 1919 (NSW) and remain so vested pursuant to s 145(3) of the Roads Act 1993 (NSW) – whether roads closed in 1963 pursuant to Public Roads Act 1902 (NSW) – where evidence of historical ownership of lands not sufficient to show that Plaintiff’s claim will almost certainly fail – proceedings not appropriate for summary dismissal
CIVIL PROCEDURE – pleadings — striking out – plaintiff filed Statement of Claim claiming entitlement to lands by virtue of adverse possession – lands claimed not precisely identified or defined – lands in part owned by State of New South Wales – State not joined as a party to proceedings – Statement of Claim does not recite material facts to show how title by adverse possession came to be acquired by Plaintiff – Statement of Claim plainly inadequate for the purpose of identifying Plaintiff’s claims to ownership of lands by adverse possession – appropriate to order that Statement of Claim be struck out – leave granted to file amended Statement of Claim
Legislation Cited: Local Government Act 1919 (NSW), ss 224(3)(d), 232
Public Roads Act 1902 (NSW)
Roads (Public) Act 1833 (NSW) (4 William IV No 11)
Roads Act 1993 (NSW), s 145(3)
Uniform Civil Procedure Rules 2005, rr 13.4, 14.28
Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41
Casson v Leichhardt Council (2011) 186 LGERA 34; [2011] NSWLEC 243
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Weber v Ankin [2008] NSWSC 106
Category: Procedural and other rulings
Parties: Gary Young (Plaintiff)
Richmond Valley Council (Defendant)
Representation:
Counsel:
Mr S Fitzpatrick (Defendant)
Solicitors:
Swaab (Defendant)

File Number(s): 2019/368414
Publication restriction: None

Judgment

These proceedings were commenced by Statement of Claim filed on 22 November 2019. The plaintiff, Mr Gary Young, is prosecuting the proceedings without representation by a lawyer. The defendant is the Richmond Valley Council (“the Council”).
On 19 December 2019 the Council filed a Notice of Motion seeking summary dismissal of the proceedings pursuant to Uniform Civil Procedure Rules 2005 (“UCPR”) r 13.4, or alternatively an order under UCPR r 14.28 striking out the Statement of Claim. The motion was returnable on 20 March 2020.
On that day, a hearing was conducted by telephone by reason of the prevailing pandemic. The affidavits contained in the Court Book were read, and…

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: [2020] NSWSC 514
Decision Date: 08 May 2020

CaseChat Overview and Summary

In the case of Young v Richmond Valley Council, the plaintiff, Mr. Young, brought an action against the defendant, Richmond Valley Council, seeking to establish ownership of certain lands through adverse possession. The dispute was heard and determined in the Federal Circuit and Family Court of Australia. The council argued that the claim was bound to fail as the lands in question were public roads that had vested in it under the Local Government Act 1919 (NSW) and remained so vested under the Roads Act 1993 (NSW). The council further argued that the roads had been closed in 1963 under the Public Roads Act 1902 (NSW), and Mr. Young's evidence of historical ownership was insufficient to show that his claim would almost certainly fail.

The central legal issue before the court was whether the plaintiff's claim for adverse possession of the lands was bound to fail, and therefore appropriate for summary dismissal. The court also had to consider whether the plaintiff's Statement of Claim was so inadequate as to warrant being struck out. The council submitted that the Statement of Claim did not identify or define the lands with sufficient precision and that it did not include the material facts necessary to demonstrate how the plaintiff's title by adverse possession was acquired. Additionally, the plaintiff had not joined the State of New South Wales, which owned part of the lands, as a party to the proceedings.

The court held that the plaintiff's claim was not bound to fail as the evidence provided was not sufficient to determine the outcome of the adverse possession claim. The court found that the evidence did not conclusively show that the lands were public roads, and therefore the council's contention that the claim was bound to fail was not established. The court also determined that the plaintiff's Statement of Claim was plainly inadequate for the purpose of identifying his claims to ownership of the lands by adverse possession. It did not contain sufficient information to allow the council to respond to the claims and to the court to determine whether the proceedings should proceed. However, the court granted leave for the plaintiff to file an amended Statement of Claim. The court found that the proceedings were not appropriate for summary dismissal and that the Statement of Claim should be struck out, but with leave to amend.

Orders