Wirepa v Hill [2023] NSWSC 1394

Supreme Court New South Wales

Medium Neutral Citation: Wirepa v Hill [2023] NSWSC 1394 Hearing dates: 6 & 13 October 2023 Date of orders: 16 November 2023 Decision date: 23 November 2023 Jurisdiction: Equity Before: Slattery J Decision: Summons dismissed under Civil Procedure Act 2005, s 61 and under Uniform Civil Procedure Rules 2005, r 12.7. Order that the plaintiff pay 80 per cent of the defendants' costs of the proceedings on the ordinary basis and may not commence further proceedings seeking relief that is substantially the same as the relief sought in the Summons without first paying the defendants' costs. On dismissal of the Summons the defendants' Cross-Claim is transferred to the District Court pursuant to Civil Procedure Act, s 146. The operation of the above orders is stayed until 8 December 2023 upon terms. Liberty to apply is granted. Catchwords: LAND LAW - easements – creation of easements – plaintiff's rural land is only accessible from a nearby public road through the defendants' adjoining land – plaintiff seeks the grant of an easement under Conveyancing Act 1919, s 88K to regularise her informal use of the defendants' land pursuant to a licence from the defendants – defendants' Cross-Claim for trespass and nuisance contends the plaintiff has used the defendants' property other than for passage to and from the public road and that trespassed upon the defendants' land and caused nuisance to the defendants. CIVIL PROCEDURE – Summary Disposal – Dismissal of proceedings – want of due despatch – plaintiff has not taken all ordered procedural steps to progress her Summons to a hearing – plaintiff no longer retains solicitors – plaintiff has not prepared survey documentation, and appears cannot demonstrate an immediate capability to fund the payment of the necessary compensation to the defendants for any grant of relief under Conveyancing Act, s 88K – plaintiff gives undertaking to the Court to prosecute the proceedings with diligence – whether the proceedings should be struck out pursuant to Civil Procedure Act 2005, s 61 or under Uniform Civil Procedure Rules 2005, rr 12.7 or 13.4 – issues on the Cross-Claim raise damages questions that lie within the jurisdiction of the District Court - if the Summons is struck out, whether the Cross-Claim should be transferred to the District Court under Civil Procedure Act, s 146. Legislation Cited: Civil Procedure Act 2005, ss 56(2), 98(4)(c), 146 Conveyancing Act 1919, s 88K District Court Act 1973, ss 44, 46, 140 Uniform Civil Procedure Rules 2005, rr r 7.36, 12.7. 13.4 Cases Cited: Gordon v Lever (2018) 97 NSWLR 90; [2018] NSWCA 43 Horizons (Asia) Pty Ltd v CLC Deliveries Pty Ltd [2021] NSWSC 1486 Nahatav v Robertson [2023] NSWSC 642 Category: Procedural rulings Parties: Plaintiff: Silvana Liliana Wirepa First Defendant: Christopher James Hill Second Defendant: David Graham Hill Third Defendant: Richard Thomas McLeod Representation: Counsel: Defendant: M. Fernandes