Supreme Court New South Wales Medium Neutral Citation: Mourched v Transport for NSW [2020] NSWSC 1766 Hearing dates: On the papers Decision date: 08 December 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Refuse leave for the filing of the proposed amended statement of claim. 2. Direct the plaintiffs, if they wish to pursue this application, to serve by 16 December 2020 a further proposed amended statement of claim which addresses the pleading issues set out in these reasons. 3. Direct the second defendant to notify the plaintiffs by 4pm on 17 December 2020 whether it opposes the grant of leave for the filing of that further proposed amended statement of claim. 4. Otherwise stand over the plaintiffs' notice of motion for directions in the Real Property List on 18 December 2020. Catchwords: CIVIL PROCEDURE - pleadings - application for leave to file amended statement of claim - plaintiffs seek orders for court imposed easement pursuant to s 88K of the Conveyancing Act 1919 (NSW) - defendants oppose leave on the basis that it would be liable to be struck out where it discloses no reasonable cause of action - whether plaintiffs required to plead material facts relevant to matters in s 88K(2)(a)-(c) of the Conveyancing Act - held that matters in s 88K(2)(a)-(c) are preconditions to a claim for a court imposed easement - held that plaintiffs failure to plead facts relevant to whether the second defendant can be adequately compensated for loss or disadvantage and that all reasonable attempts have been (unsuccessfully) made to obtain easement otherwise would make amended statement of claim liable to be struck out - leave refused. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 Conveyancing Act 1919 (NSW), ss 88K(1), 88K(2) Uniform Civil Procedure Rules 2005 (NSW), rr 14.6, 14.7, 14.8, 14.9, 14.10 Cases Cited: 117 York St. Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Arthur Young v Tieco International (1999) 182 LSJS 367 Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Bloom v Lepre (2008) 13 BPR 24,923 Bruce v Odhams Press Ltd [1936] 1 KB 697 Clough v Frog (1974) 4 ALR 615; 48 ALJR 481 Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14.638 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Cropper v Smith (1884) 26 Ch D 700 D & D Investments Pty Ltd v Yiasemides (2006) 13 BPR 24,103; [2006] NSWSC 1419 Gunns Ltd v Marr [2005] VSC 251 Horton v Jones (No 2) (1939) 39 SR (NSW) 305 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 Ingot Equity Capital Markets Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136 Ketteman v Hansel Properties Ltd [1987] 1 AC 189; [1988] 1 All ER 38 Longhurst-Saunders v Cooper (1956) 73 WN (NSW) 455 Mitchell v Boutagy (2001) 10 BPR 19,187; [2001] NSWSC 1045 Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485; [2006] NSWSC 221 Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 Shannon v Lee Chun (1912) 15 CLR 257; [1912] HCA 52 Shelton v National Roads and Motorist Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Smith v Woodley-Beattie [2009] NSWSC 380 Steel v Smith (1817) 1 B & Ald 94 Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27 Tildesley v Harper (1878) 10 Ch D 393 Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 Vines v Djordevitch (1955) 91 CLR 512 Wilson v Forrester-Babcock (2000) 10 BPR 18,377; [2000] NSWSC 1208 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: George Mourched (First Plaintiff) Anthony Mourched (Second Plaintiff) Transport for New South Wales (First Defendant) Transport Asset Holding Entity of New South Wales (Second Defendant) Representation: Counsel: JT Johnson (Plaintiffs) M Astill (Defendants) Solicitors: Auslex Law Group (Plaintiffs) Clayton Utz (Defendants) File Number(s): 2020/00143766 Publication restriction: Nil Judgment 1. HER HONOUR: By notice of motion filed on 6 November 2020 the plaintiffs (George Mourched and Anthony Mourched) seek leave to file an amended statement of claim in proceedings commenced by them in May this year against the first defendant (Transport for New South Wales, to which I will refer as TNSW). Leave was given to the plaintiffs on 7 October 2020 for the discontinuance of the proceedings against TNSW on the basis that the plaintiffs pay TSNW's costs. Meanwhile, an order was made by consent on 11 August 2020 joining the second defendant (wrongly named as Transport Administration Holding Entity of New South Wales) as a party to the proceedings. The relevant defendant is now therefore only the second defendant. 2. It was agreed between the parties that the application should be dealt with on the papers. The plaintiffs' application is supported by an affidavit sworn 6 November 2020 by their solicitor, Dion Accoto. Both sides have filed brief written submissions. 3. Broadly speaking, the second defendant does not oppose amendment to the pleading in order to reflect the correct entity which holds the land over which an easement is sought (that being Transport Asset Holding Entity of New South Wales, to which I will refer as TAHE). However, TAHE does oppose the balance of the amendments on the basis that the amended statement of claim in its proposed form would be liable to a strike-out order (for the reasons I set out in due course). Background 1. The plaintiffs commenced proceedings in this Court by statement of claim filed on 14 May 2020, seeking the imposition of a right of carriageway burdening certain land in Leppington, New South Wales (the Land), pursuant to s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act). 2. By reference to the existing pleading, it appears that the plaintiffs wish to develop property held by them in Leppington as a car park for vehicles in respect of access to Leppington Train Station commuter car park (see [4] and [7] of the statement of claim) and Roads and Maritime Services has advised that: both construction access and future access to the proposed car park is to be through the existing station car park access; construction vehicles are to be contained wholly within the site; and no construction zone will be permitted on Bringelly Road or Ricard Road Leppington (at [5]). The plaintiffs have identified the proposed use of the land at [7] as: "a car park for a total of 259 vehicles in respect of access to Leppington Train Station commuter car park being the Defendants [sic] Property, Development Application no 2019/308/1…". 3. The owner of the Land over which the easement is sought is TAHE, the statutory successor to Rail Corporation of NSW (Railcorp). Prior to the establishment of TAHE on 1 July 2020, Railcorp was the owner of the land (though it was not named as the defendant to the statement of claim). 4. This is the plaintiffs' second application for leave to file an amended statement of claim. The first application, filed on 26 June 2020, was refused by Darke J on 14 September 2020. At that time his Honour's Associate provided the parties with his Honour's brief reasons for refusing leave for the filing of the amended statement of claim in the proposed form. Those reasons have not be published more broadly. Relevantly, those reasons were that: Order 1 of the proposed relief seeks an order that Transport for NSW issue a direction to TAHE to provide a right of carriageway over the land pursuant to s 3G(1) of the Transport Administration Act 1988 (NSW). The parties are in dispute as to whether Transport for NSW retains a power to give a direction to TAHE, as s 3G(1)(a) was repealed on 1 July 2020 by the Transport Administration Amendment (Transport Entities) Act 2017 (NSW). However, it seems to me that even if Transport for NSW retains the statutory power, an order made in the terms of proposed Order 1 would lack utility, as TAHE has indicated, as it must, that it would comply with any order of the Court for the imposition of the easement sought. Furthermore, the proposed amendments to paragraphs 2, 3, 7-10 and 12 of the Statement of Claim do not disclose any reasonable cause of action against the first or second defendant and would be liable to be struck out pursuant to r. 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). The paragraphs perhaps suggest that by making a certain representation the first defendant engaged in some form of wrongful conduct, and that the plaintiffs will thereby suffer loss and damage. However, the material facts pleaded are essentially confined to the making of the representation. The proposed pleadings do not go on to disclose any causes of action based on the making of the representation. Moreover, damages are not claimed. 1. His Honour indicated that the plaintiffs should be given the opportunity to decide whether to proceed or to discontinue against the first defendant (TNSW) and to produce a new proposed pleading which named TAHE as the second defendant. 2. The plaintiffs served a proposed amended pleading on the defendants on 2 October 2020. As noted above, TAHE opposes the grant of leave for the filing of this pleading. It is submitted that the plaintiffs have failed to plead substantive prerequisites to relief under s 88K(2) of the Conveyancing Act and that therefore the pleading discloses no reasonable cause of action. As noted, the defendants do not oppose the removal of TNSW as a party to the proceedings. However, they note that the pleading should be amended to reflect the correct legal name of the second defendant (i.e., Transport Asset Holding Entity of New South Wales), and not Transport Administration Holding Entity of New South Wales as the proposed pleading currently stands. It is submitted (and I accept) that an order should be made formally requiring the plaintiffs to pay TNSW's costs as part of the disposition of the present application. Plaintiffs' submissions 1. The plaintiffs maintain that the proposed amended statement of claim satisfies the pleading requirements in that it contains allegations of fact complying with rr 14.6-14.9 and 14.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). 2. The plaintiffs contend that the preconditions to the relief which is claimed under s 88K of the Conveyancing Act (see s 88K(2) of the Conveyancing Act) are identified for relevant purposes in the proposed pleading at [7], [8], [9], [11] and [12] (where twice appearing). As to the extent and wording of any relevant easement, the plaintiffs say that that is a matter to be determined according to the respective requirements and specific issues associated with the car park over which the easement is sought. 3. The plaintiffs argue that it is not necessary to plead the specific paragraphs of s 88K(2) of the Conveyancing Act where the underlying facts giving rise to relief have been pleaded. Defendant's submissions 1. As noted, there is no opposition to the amendments relating to the removal of TNSW as a party to the proceedings. Rather, the opposition is to the amendments made to the substantive pleading, most particularly the amendments in [10], [11](a), [11](b), [12](a) and [12](b) of the proposed pleading. The fundamental basis for objection is that the amended pleading does not disclose all of the material facts necessary to establish the elements of the cause of action that must be pleaded. 2. TAHE accepts that it is not necessary in a pleading to recite statutory provisions. However, it contends that the underlying facts giving rise to the relief claimed have not been properly pleaded in the amended statement of claim. TAHE cites in this regard the High Court decision in Vines v Djordevitch (1955) 91 CLR 512 (Vines v Djordevitch) at 519-520 for the proposition that, where factual matters operate as preconditions to a cause of action succeeding, the necessary facts to establish them must be pleaded. 3. In Vines v Djordevitch, where a provision in the Motor Car Act 1951 (Vic) precluded judgment from being obtained in a motor accident case unless the relevant statutory notice of intention to make a claim had been given in accordance with the statute, it was held, at 521, that the notice requirement was a precondition to the cause of action arising, the onus of proving which fell on the plaintiff. 4. TAHE submits that the matters in s 88K(2) of the Conveyancing Act similarly operate as preconditions to the cause of action succeeding and TAHE argues that the necessary facts to establish them should be pleaded. 5. In particular, TAHE says that the proposed amended pleading asserts no fact matter or circumstance that would, if established, satisfy the requirements of any of s 88K(2)(a), (b) or (c) (see below). 6. TAHE thus contends that: the matters contained in s 88K(2) contain substantive prerequisites to the grant of relief under s 88K; the onus of proving the matters contained in s 88K(2) falls on the plaintiffs; the failure of the amended statement of claim to plead the facts giving rise to the matters in s 88K(2) precludes any relevant issue being joined on matters that are required to be proved in order for the grant of relief; and as a consequence of the failure to plead these facts, the amended statement of claim does not disclose a cause of action under s 88K of the Conveyancing Act. Proposed Amendments 1. Relevantly, what is proposed to be included in the amended statement of claim is as follows: 10 The Plaintiffs if unable to access Bringelly Road or Ricard Road Leppington will have no street access to enable use and occupation of the Plaintiff's [sic] Property the subject of the Development Application. 11 (a) they will be unable to proceed with the Development Application referred to in paragraph 7 above; and or (b) the portion the subject of the Development Application referred to in paragraph 7 above would be landlocked. 12 Rail Corporation of New South Wales has advised that it refused to enter into any agreements in relation to a proposed commuter car park lease of the property held by the Plaintiff's [sic] or the granting of access rights over the existing commuter car park. [Particulars omitted] 12 [sic] As a consequence of the foregoing: (a) in the absence of the ability to utilise the Defendant's Property for the purpose of access to the portion of the Plaintiff's [sic] Property the subject of the Development Application, the Plaintiffs will be unable to utilise that property; (b) it is reasonable for the Plaintiffs to be able to utilise the Defendants [sic] Property for the purpose of access to the portion of the Plaintiffs Property. Relevant provisions 1. Section 88K of the Conveyancing Act relevantly provides that: 88K Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that— (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful. Relevant Principles 1. It is well known that, in exercising the discretion to grant leave to amend, regard must be had both to the overriding purpose of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) and the UCPR; and to the dictates of justice (see ss 56, 58 of the Civil Procedure Act). One must consider the nature of the proposed amendment, its consequences for the other parties, and the expeditious conduct of the proceedings. All necessary amendments are to be made in order to enable the determination of the real issues raised in the proceedings (see s 64 of the Civil Procedure Act; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [14] and [71]; and the commentary in Ritchie's Uniform Civil Procedure Rules NSW, 64.5). 2. As to the exercise of the discretion, the application must be made for a proper purpose; the proposed amendments must be proper in substance and form; the amendment must not cause undue prejudice to the other party; and the amendment must be consistent with the dictates of justice (see Tildesley v Harper (1878) 10 Ch D 393 at 396-397; Cropper v Smith (1884) 26 Ch D 700 at 710, applied in Clough v Frog (1974) 4 ALR 615 at 618 per McTiernan ACJ, Menzies, Gibbs and Mason JJ; 48 ALJR 481; Shannon v Lee Chun (1912) 15 CLR 257; [1912] HCA 52; Horton v Jones (No 2) (1939) 39 SR (NSW) 305 at 309-301 per Jordan CJ; Longhurst-Saunders v Cooper (1956) 73 WN (NSW) 455; Ketteman v Hansel Properties Ltd [1987] 1 AC 189; [1988] 1 All ER 38 at 203 per Lord Keith; Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 106-7 per Waddell AJA, with whom Samuels and Meagher JJ agreed). 3. Leave will not be granted for an amendment which would be liable to be struck out or which does not disclose an arguable cause of action. 4. Further, it is relevant here to note that the function of pleadings is (as stated in Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 per Mason CJ and Gaudron J at [18]): … to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. 1. That passage was cited with approval by Ipp JA in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 at [422]. In Arthur Young v Tieco International (1999) 182 LSJS 367(which was approved by McDougall J at first instance in Ingot Equity Capital Markets Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136 (Ingot) at [46]), Lander J said (at 370) that a Court ought to approach a consideration of the adequacy of a pleading by seeking to answer the ultimate question whether the pleading gives fair notice of the case to be made against the other party at trial, thus minimising the risk of injustice resulting from surprise. 2. What is required of a statement of claim under the UCPR is that it state all material facts, those being the facts which are necessary for the purpose of formulating a complete cause of action (see Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-713). The requirement that all material facts constituting the cause of action be plainly stated in the pleading has been described as one of the plainest and most fundamental of all the rules of pleading (Pinson v Lloyds and National Provincial Foreign Bank Ltd [1941] 2 KB 72 at 75-76). 3. While r 14.8 of the UCPR requires a pleading to be as brief as the nature of the case allows, it must be clear from the pleading what the cause of action is and the material facts upon which that cause of action is based. The importance of this is that the issues to be decided in the case are framed by the pleadings (see Ingot above). 4. A pleading is embarrassing if it is unintelligible, ambiguous or imprecise in its identification of material factual allegations so as to deprive the opposing party of proper notice of the real substance of the claim or defence (Gunns Ltd v Marr [2005] VSC 251 at [14]-[15]) or if it contains inconsistent, confusing or irrelevant allegations (Shelton v National Roads and Motorist Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 at [18]). Determination 1. The issue in the present case is whether the proposed amended pleading discloses a reasonable cause of action. As stated, the plaintiffs argue that the matters set out in s 88K(2) of the Conveyancing Act are preconditions to the cause of action succeeding, the onus of proving which falls on the plaintiff, and that the proposed amended statement of claim does not plead any fact that, if established, would satisfy the requirements of any of paragraphs s 88K(2)(a)-(c) of the Conveyancing Act. 2. The High Court in Vines v Djordjevitch discussed the "well understood" distinction between a proviso and an exception (at 519, citing Abbott J in Steel v Smith (1817) 1 B & Ald 94 at 99; 106 ER 35 at 37). The High Court in that case determined that, though the requirement of notice was framed as a proviso, which prima facie supported the view that the burden of proof lay with the defendant to establish non-compliance, the substance of the provision expressed a condition precedent to the cause of action, required to be fulfilled by all, and consequently the onus of proof lay with the plaintiff. The Court stated (at 519): In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications, exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. 1. The onus of proof in an application under s 88K of the Conveyancing Act is broadly on the applicant (see Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27 at 84 per Pain J, citing 117 York St. Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 (117 York St)). An order may be made only if the Court is satisfied in all the circumstances of the matters in s 88K(2). In my view, these matters are indeed pre-conditions to the exercise of the power conferred by s 88K(1) (and hence required to be proved by the applicant for such an order). A right to an easement does not arise upon a finding that the easement is "reasonably necessary", only to be denied if matters in s 88K(2) are not satisfied (to use the terminology deployed in Vines v Djordjevitch at 519). Rather, the grant of an easement pursuant to s 88K is only possible if all matters under s 88K(2) are established to the Court's satisfaction (and it is only then that, subject to the Court's discretion, relief will be granted). 2. What then are the material facts to be pleaded, which if established would satisfy the Court of the pre-conditions to relief set out in s 88K? 3. The first pre-condition is that set out in s 88K(2)(a) which requires that the Court be satisfied that use of the land having the benefit of the easement will not be inconsistent with the public interest. 4. This is not the same as requiring the easement to be "in the public interest" (see D & D Investments Pty Ltd v Yiasemides (2006) 13 BPR 24,103; [2006] NSWSC 1419 at [30] per Young CJ in Eq, as his Honour then was, and his Honour's decision in Bloom v Lepre (2008) 13 BPR 24,923; [2008] NSWSC 79 at [83]). 5. Whether use of the land having the benefit of the easement is not inconsistent with the "public interest" will depend on the facts of each case and the manner in which the Court exercises the discretion (see City of Canterbury v Saad [2013] NSWCA 251 at [54] per Beazley P (as her Excellency then was), Leeming and Meagher JJA agreeing, citing Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd [2010] NSWLEC 2; 171 LGERA 286 at [94]-[95] per Preston CJ of LEC). 6. Again, in Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295; (2009) 14 BPR 27,257, White J (as his Honour then was) observed (at [63]) that the question under s 88K(2)(a) is not whether the construction and use of a right of carriageway on the defendant's land is inconsistent with the public interest, but whether the use of the land having the benefit of the easement would not be inconsistent with the public interest (and see Arinson Pty Ltd v City of Canada Bay Council [2014] NSWLEC 43; 205 LGERA 248 (Arinson v City of Canada Bay Council) at [63] per Biscoe J). The focus of the inquiry is on the proposed use of the applicant's land. 7. Biscoe J in Arinson v City of Canada Bay Council said: The public interest is in favour of land being able to be used for a permissible purpose: Evans v Cornish Nominees Pty Ltd [2009] NSWSC 1295; (2009) 14 BPR 27,257 at [63] per White J; Moorebank Recyclers Pty Ltd v Liverpool City Council (No 2) [2013] NSWLEC 93 at [163] per Biscoe J. An owner of land is entitled to utilise land in accordance with its zoning provided development consent is obtained: City of Canterbury v Saad [2013] NSWCA 251] at [56]. The fact that an applicant for an easement may still have to fulfil other requirements before the land can be utilised in accordance with the zoning, such as obtaining development consent, is not a bar to the grant of the easement: City of Canterbury v Saad at [57]. The provision of an easement that permits vehicular access to a permissible development on landlocked land is entirely consistent with the public interest in the use or development of land for a designated purpose: City of Canterbury v Saad at [58]. 1. The authorities do not suggest that the applicant for an easement must identify in the pleading any relevant public interest as such. Rather, the question is a matter for evidence. Hamilton J in Gordon v Shaheen [2005] NSWSC 1328 said (at [18]): [18] I see no reason why the use should not be characterised as not inconsistent with the public interest. On the evidence there is no identified or identifiable public interest which would be affected. It is plain that land in the vicinity is now zoned so as to permit multi dwelling use and the implementation of multi development uses is proceeding. The actual development proposed by the plaintiffs has been approved by the Council as the consent authority. There is no public interest that will be impinged upon. (My emphasis.) 1. Similarly, in Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293, Basten JA stated (at [73], with whom Barrett JA and I agreed) said: [73] There was no material placed before the primary judge to warrant a finding that a well-known form of residential development, within an appropriate area, would be inconsistent with the public interest. 1. It was there said that the grant of a development consent will strongly suggest that the proposed easement is consistent with the public interest (see Shi v ABI-K Pty Ltd at [75]). 2. The material facts that are required to be pleaded are those concerning the proposed use of the land in question on which the plaintiffs will rely to establish that the proposed use is not inconsistent with the public interest, any development consents or authorisations relevant to permitted use. The defendant should then be well placed to contest or to concede whether or not the easement sought is not inconsistent with the public interest. 3. In this case, I consider that the plaintiffs have sufficiently pleaded the material facts upon which the Court may be satisfied that the use of the plaintiffs' land is not inconsistent with the public interest, including: (a) the intended purpose of the land, being "a car park for a total of 259 vehicles in respect of access to Leppington Train Station commuter car park being the Defendants Property" (at [7]); that the proposed use is subject to a Development Application 2019/308/1, involving a subdivision of the Plaintiff's Property (at [7]); and that if the plaintiffs are unable to access Bringelly Road or Ricard Road then the land will be effectively landlocked (at 10 and 11(b)). 4. If there is any uncertainty on the part of TAHE as to what is here asserted to be the relevant public interest (with which the plaintiffs will contend that use of the land having the benefit of the easement will not be inconsistent), this is a matter that can be clarified in a request for particulars. 5. Second, it is a precondition to the exercise of the power to grant an easement under s 88K that the owner of the servient land can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement (s 88K(2)(b)). The applicant for the easement must establish the relevant losses and disadvantages (see 117 York St at 516-517). While it is said that the onus in this regard should not be overemphasised (see Wilson v Forrester-Babcock (2000) 10 BPR 18,377; [2000] NSWSC 1208 at [17]-[21] per Young J (as his Honour then was)) and that unfavourable inferences can be drawn where evidence of facts is peculiarly within the knowledge of the defendant (see Mitchell v Boutagy (2001) 10 BPR 19,187; [2001] NSWSC 1045 per Austin J at [34]; Owners Strata Plan 13635 v Ryan (2006) 12 BPR 23,485; [2006] NSWSC 221 at [85] per Rein AJ (as his Honour then was)), in the present case there is no pleading in the proposed amended statement of claim that adverts to this precondition. 6. One might ask, rhetorically, for example, whether it is asserted that there will be no loss or other disadvantage occasioned to the defendant as a result of the imposition of the proposed easement (and, if so, by reference to what material fact or facts is that alleged); or whether it is alleged that any identified or potential loss can adequately be compensated (and, if so, by reference to what material fact or facts is that alleged). Though questions of quantum of any compensation and how it is proposed to be provided may well be matters for evidence, the pleading fails to address at all the material facts that support this essential pre-condition to the grant of the relief sought. 7. By way of example, it might be that the plaintiffs have proffered an unconditional and irrevocable undertaking to compensate TAHE for any and all loss or disadvantage that may be suffered by the grant of the easement (such that it can be said that any such loss or disadvantage can be adequately compensated) but this is not pleaded. Moreover the question of any loss (and adequacy of compensation therefor) may well depend on the precise extent of terms of the right of carriageway that is sought, including over what part of the second defendant's land it is sought to be imposed. 8. Third, s 88K(2)(c) requires that the applicant for the easement has made "all reasonable attempts" to obtain the easement or an easement having the same effect but those attempts have been unsuccessful. Again, there is nothing that relevantly addresses this in the proposed amended statement of claim. There is an allegation in the proposed first numbered [12] that Rail Corporation of New South Wales has refused to enter into any agreements in relation to a proposed commuter car park lease. However, Rail Corporation of New South Wales is not the owner of the servient land. There is no allegation of a material fact as to any attempt made to obtain the easement or an easement having the same effect (let alone that such an attempt has been unsuccessful), simply the broad assertion that if the plaintiffs are unable to have access to certain roads they will have no street access to enable the use and occupation of the plaintiffs' land or the portion of the land subject to the Development Application will be landlocked (see at [11]). 9. Whether an applicant has complied with the requirement to establish that all reasonable attempts have (unsuccessfully) been made to obtain the easement is a question of degree but will generally be met if, viewed objectively, the applicant's negotiations for an easement have proved fruitless and it is "extremely unlikely" that future negotiations will produce a consensus (see Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14.638 at 14,654; Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 at 15,855; Smith v Woodley-Beattie [2009] NSWSC 380 at [72], [73]). However, here there is simply a lacuna in the pleading. Railcorp is no longer the statutory authority. It is not clear if it is being asserted that a refusal by a previous statutory authority satisfies the requirement under s 88K(2)(c), but on its face there seems no allegation in the pleading of a material fact that the plaintiffs have made (any let alone all reasonable) attempt(s) to obtain an easement from TAHE and have been unsuccessful. 10. The fact (assuming it will be contended that this is the case) that attempts have been made to negotiate an easement (particularising what attempts have been made) would need to be pleaded. 11. The failure to plead the material facts, matters and circumstances on which the plaintiffs rely to contend that the second defendant can adequately be compensated for any loss or other disadvantage as a result of the proposed easement and that all reasonable attempts have been (unsuccessfully) made to obtain an easement points to the undesirability of granting leave for the filing of the amended statement of claim in its proposed form. If those matters have not yet been addressed by the plaintiffs, then the proceedings are clearly premature. If they have been addressed by the plaintiffs then the material facts to establish those matters should be pleaded. As noted, identification of the relevant public interest for the purposes of s 88K(1)(a) (assuming that TAHE is left in any doubt as to this) could be dealt with by way of particulars; but that would not address the difficulty with the way in which the pleading fails to identify the material facts which, if established, would satisfy the second or third of the relevant preconditions to the grant of relief. 12. For those reasons, I accept the submission of TAHE that the proposed amended statement of claim if filed would be liable to be struck out and for that reason it is not appropriate to grant leave for it to be filed. The plaintiffs should be directed to serve a further proposed amended pleading that addresses the deficiencies identified above. Orders 1. Accordingly, I order as follows: 1. Refuse leave for the filing of the proposed amended statement of claim. 2. Direct the plaintiffs, if they wish to pursue this application, to serve by 16 December 2020 a further proposed amended statement of claim which addresses the pleading issues set out in these reasons. 3. Direct the second defendant to notify the plaintiffs by 4pm on 17 December 2020 whether it opposes the grant of leave for the filing of that further proposed amended statement of claim. 4. Otherwise stand over the plaintiffs' notice of motion for directions in the Real Property List on 18 December 2020. 1. I have in mind that on 18 December 2020 either the further proposed amended pleading will be in a suitable form for leave to be granted for it to be filed and directions made for the further conduct of the matter or the notice of motion will simply be dismissed; and in either event that orders will be made to address the costs of the notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2020