Land and Environment Court New South Wales Medium Neutral Citation: Slattery v Dunn (No 2) [2023] NSWLEC 128 Hearing dates: 22 November 2023 Date of orders: 22 November 2023 Decision date: 22 November 2023 Jurisdiction: Class 4 Before: Pritchard J Decision: See orders and directions at [24] Catchwords: PRACTICE AND PROCEDURE – whether to expedite matter for hearing – power to refer matter for mediation – NSW Land Registry Services (LRS) boundary determination pending Legislation Cited: Civil Procedure Act 2005 (NSW) ss 26, 56 Dividing Fences Act 1991 (NSW) Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Slattery v Dunn & Anor [2023] NSWSC 1205 Slattery v Dunn [2023] NSWLEC 107 Category: Procedural rulings Parties: Rhonda Slattery (Applicant) David Dunn (First Respondent) Kim Dunn (Second Respondent) Representation: Counsel: N Eastman SC (Applicant) C Koikas (Respondents) Solicitors: Tyrell's Planning Law (Respondents) File Number(s): 2023/319606 Publication restriction: Nil JUDGMENT Introduction and background 1. These Class 4 proceedings involve a boundary dispute between the applicant and the respondents. The applicant seeks, inter alia, injunctive relief to restrain the demolition by the respondent of a dividing fence. 2. The matter has a complex procedural history. It first came before the duty Judge Moore J at an ex parte hearing on Sunday, 8 October 2023. Moore J ordered the transfer of the proceedings to the Supreme Court. The proceedings were listed before the duty Judge in Equity, Henry J, who also heard the matter ex parte on Sunday, 8 October 2023. 3. Henry J explained to the applicant the usual undertaking as to damages where injunctive relief is sought. The applicant provided such an undertaking. 4. On Tuesday, 10 October 23 Henry J ordered that the proceedings be transferred back to this Court. 5. The matter first became before me as duty Judge on Thursday, 12 October 2023, and then again on Wednesday, 18 October 2023. On Thursday, 12 October 2023, I directed that the matter be set down for mediation on Monday, 16 October 2023. 6. The background to the dispute and to the commencement of the proceedings in Class 4 of this Court's jurisdiction, and the orders made by me on Thursday, 12 and Wednesday, 18 October 2023, are set out in my reasons for judgment in Slattery v Dunn [2023] NSW LEC 107. I do not repeat that background and those orders here. 7. Suffice it to say, on Wednesday, 18 October 2023, following a terminated mediation, I made orders listing the matter for final hearing for one day on Thursday, 2 November 2023. On 18 October 2023, I also made directions in relation to the filing of evidence and submissions by the parties, the notification of any objections to evidence, and subject to the applicant continuing the usual undertaking as to damages, interlocutory injunctions in relation to works proposed by the respondents which the applicant alleges will interfere with and damage the existing dividing fence between the applicant's property and the respondents' property. I also encouraged the parties to obtain legal advice and representation. 8. On Friday, 27 October 2023, the first respondent Mr Dunn informed my chambers, by email copied to the applicant, that the applicant's surveyor had identified a location of the boundary not consistent with that previously identified by the respondents' surveyor. Accordingly, the respondents requested that the hearing on Thursday, 2 November 2023 be vacated and the matter listed for a mention on 16 November 2023 to "allow time for the Registrar General to make a ruling on the boundary, which is determinative in the proceedings". The applicant did not oppose the hearing being vacated and relisted for directions on Thursday, 16 November 2023 "on the proviso...that the injunctions are extended". 9. In response to the matters raised in Mr Dunn's email of Friday, 27 October 2023, on 27 October 2023 I vacated the hearing set down for Thursday, 2 November 2023, and relisted the matter for further directions on Thursday, 16 November 2023. I made orders continuing the injunctions until 5pm on Thursday, 16 November 2023. 10. On Tuesday, 14 November 2023, my chambers received an email from Mr Dunn, copied to the applicant, advising that he had spoken with an officer at NSW Land Registry (LRS), and that the office had contacted the applicant, Ms Slattery, to advise that she was provided a 28 day period in which to make representations in relation to the boundary determination. The respondents sought the following orders: 1. That Ms Slattery is directed to provide any representation to the LRS by Friday 17 November 2023. 2. That the LRS is directed to expedite boundary determination application number AT581153. 3. That the proceedings are adjourned until 14 December 2023. 1. On Wednesday, 15 November 2023, my associate sent an email to the parties in response to the matters raised in Mr Dunn's email of Tuesday, 14 November 2023, requesting that the respondents identify any power of the Court to make the respondents' proposed orders (1) and (2), and the applicant to provide any response. I also made orders on Wednesday, 15 November 2023 vacating the directions hearing on Thursday, 16 November 2023 and relisting the matter for mention on Thursday, 14 December 2023 in accordance with order (3) sought by the respondents. 2. In relation to orders (1) and (2) sought by the respondents, on Thursday, 16 November 2023, Mr Dunn wrote to my chambers as follows: (1) I have reviewed s135E of the Real Property Act 1900 and note that the submission period is 21 days, not 28 days. As the matter was brought to the Court's [sic] in an urgent matter, I see no reason why Mrs. Slattery cannot supply her submission quicker than 21 days as I understand that she has already obtained an opposing survey report (not supplied to us yet). Also the urgency has become critical on my behalf as the area of development (driveways and access areas) cannot be completed until such time the boundary is determined and the fence placed into its correct position, this at the moment is creating a very dangerous situation due to the nature of the ground being unfinished and slippery and muddy when it rains. It also is impeding greatly on the finished works being the floor and window coverings inside the new dwelling due to the ground works being unfinished with mud and dust being spread throughout the new works. As soon as the fence is located in its correct position the stormwater drainage and concrete works can be finished and will alleviate any risks of potential injury or accidents. (2) In my discussions with the LRS, particularly Matter Cooper (Surveyor, Cadastral Integrity), the LRS would likely expedite this boundary determination if a direction, or even a request from the Court was made. I have not been able to find any power of the Court to make a formal order, however a 'note or request' from the Court would likely hold significant weight with the LRS. 1. On Friday, 17 November 2023, Ms Slattery sent an email to my chambers as follows, attaching proposed short minutes of order: In accordance with her Honour's direction made on Wednesday 15 November 2023, I provide the following proposed orders and response to Mr Dunn's orders proposed on 16 November 2023. My proposed orders are attached (and are in the same form as those provided earlier in the week). The primary reason I oppose Mr Dunn's proposed orders is because it assumes that any resolution of the boundary determination question will resolve the case. Based on the matters advanced in my Summons, it does not (and may be immaterial to the relief I seek). Accordingly, there is little point in simply waiting for that to occur, with the parties being under no obligation to otherwise advance the preparation of the case. I also advance the same reasons I provided earlier in the week in support of my proposed directions, which I set out again in these dot points below. Those reasons are: • There are no extant procedural directions made by the Court and your proposal leaves the timing of the proceedings up to third parties, not subject to the Court's directions; • Based on my Summons, it is my position that the boundary issue would not be wholly determinative of the matter. Accordingly, all of the other evidence in the case ought be prepared; • My suggested directions accord directly with the Court's Standard Directions in Class 4 matters; • If the LRS determination is to be evidence in the case in due course, that timing of that can be advised to the Court at the next return on 2 February 2024, and this proposal does not prevent that evidence being prepared and provided to the Court. Given that the parties' proposed directions are quite different, I would not oppose the matter being relisted before her Honour for each party to put their case. Mr Eastman SC is available next week for a morning directions hearing, other than Friday. 1. On Friday, 21 November 2023, my associate wrote to the parties, stating that in light of the urgency with which the applicant brought these proceedings on for hearing ex parte before the duty judge on Sunday, 8 October 2023, and in light of the matters raised by Mr Dunn in his email of Thursday, 16 November 2023, the Court was not inclined to accede to the preparation of the hearing in accordance with the timetable proposed by the applicant on Friday, 17 November 2023. 2. In those circumstances, on Monday, 20 November 2023 I listed the matter for directions for today, Wednesday 22 November 2023. My associate indicated to the parties that the court would be amenable to an application for expedition of these Class 4 proceedings. Parties' proposed orders 1. Yesterday, as directed, and in light of the Court's concern that the Class 4 proceedings be expedited, the applicant provided the following orders: 1. The respondent is to serve its affidavits in chief and bundle of any additional documents by 1 December 2023. 2. The applicant is to serve any affidavits in reply and bundle of any additional documents in reply by 8 December 2023. 3. The matter is fixed for hearing on 7 February 2024. 4. The parties are to confer and prepare a paginated Court Book with a table of contents in a white folder (or folders) containing the following sections with dividers between them: (a) a copy of the summons, each respondent's response to the summons (in judicial review proceedings) and (if applicable) pleadings; (b) an agreed list (or competing lists) of the real issues for determination; (c) a summary of the applicant's argument (not exceeding 10 pages); (d) [in judicial review proceedings only] the decision under review and the statement of reasons (if any) of the decision-maker; (e) any statement of facts able to be agreed between the parties; (f) an agreed chronology or, failing agreement, the parties' respective chronologies; (g) an agreed schedule of any relevant legislative provisions or, failing agreement, the parties' respective schedules of any relevant legislative provisions; (h) each party's list of objections (if any) to evidence; (i) spaces for the summary of the respondent's argument and any summary of the applicant's argument in reply (when filed). 5. The parties are to confer and prepare a paginated Evidence Book in a non-white folder (or folders) with a table of contents containing the following copy documents with dividers between them: (a) documents the parties jointly or separately propose to tender, with a table of contents indicating any objections to admissibility and the grounds; (b) affidavits of the applicant's lay witnesses; (c) affidavit's of the respondent's lay witnesses; (d) expert reports grouped by discipline 6. The applicant, at least 7 working days before the hearing, is to file and serve the Court Book and the Evidence Book. 7. The respondent, at least 4 working days before the hearing, is to file and serve a summary of the respondent's argument (not exceeding 10 pages). 8. The applicant, at least 1 working day before the hearing, is to file and serve a summary of the applicant's argument in reply if the applicant considers a reply is needed (not exceeding 5 pages). 9. The date in orders (5), (6) and (7) made by Pritchard J on 27 October 2023 be extended to 7 February 2024. 10. Liberty to restore on 24 hours' notice. 1. At the hearing today, Mr Eastman SC for the applicant expressed some ambivalence about the orders sought by the applicant having regard to the desirability of avoiding further costs and noting that applications were now foreshadowed by the respondents under the Trees (Disputes Between Neighbours) Act 2006 (NSW) and the Dividing Fences Act 1991 (NSW) which would be heard in Class 2 of the Court's jurisdiction. 2. This morning, the respondents, now represented by Mr Koikas, sought the following orders: 1. The parties are to advise the Court through online Court Communication by 2 February 2024 of the status of the LRS Boundary Determination Application. 2. The proceedings are to be adjourned until 9 February 2024. 3. Liberty to restore on 3 days' notice. Note: The Court notes that the matter has been adjourned pending the LRS providing a boundary determination survey in relation to LOT 165 in DP 5350 and LOT 164 in DP 5350. 1. Today, Mr Koikas confirmed in Court that his clients intend filing applications under the Trees (Disputes Between Neighbours) Act 2006 (NSW) and the Dividing Fences Act 1991 (NSW). Consideration 1. In the circumstances, having regard in particular to the foreshadowed Class 2 applications and the desirability of avoiding costs associated with the further preparation of these Class 4 proceedings, it would be appropriate to adjourn the proceedings until after the LRS boundary determination. 2. I have decided that adjourning the proceedings is more likely to facilitate the just, quick and cheap resolution of the real issues in dispute: s 56 of the Civil Procedure Act 2005 (NSW) (CPA). The resolution of the boundary dispute may dispose of the issues in dispute. In any event, thereafter, it will remain within the power of the Court to order the proceedings again to be referred for meditation, with or without the consent of the parties: s 26 of the CPA. 3. The injunctions will remain in place until 9 February 2024. The Court notes that the applicant will continue the usual undertaking as to damages. 4. There will be no order as to costs of today. Orders and directions 1. I make the following orders and directions: 1. The mention listed on 14 December 2023 is vacated. 2. The parties are to advise the Court through online Court Communication by 2 February 2024 of the status of the LRS Boundary Determination Application. 3. The proceedings are to be adjourned to the List Judge on Friday, 9 February 2024. 4. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on 9 February 2024, David Dunn (the first respondent), and Kim Dunn (the second respondent) be restrained by themselves, their servants, agents or contractors from trespassing or entering upon 53 Mirreen Avenue, Davistown NSW 2251 at Lot 164 DP 5360 (the applicant's property) and interfering with and damaging the existing dividing fence located on or in the vicinity of the contiguous boundary between the applicant's property and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 DP 5350 (the respondents' property). 5. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on 9 February 2024, the respondents are restrained by themselves, their servants, agents or contractors, from interfering with either of the paperbark trees on 53 Mirreen Avenue, Davistown NSW 2251 at Lot 164 in Deposited Plan 5350, in the vicinity of, or located across, the boundary between Lot 164 in Deposited Plan 5350 and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 in Deposited Plan 5350. 6. Upon the applicant giving the usual undertaking as to damages, order that until 5pm on 9 February 2024, the respondents are restrained by themselves, their servants, agents or contractors, from demolishing any part of the concrete slab located on 53 Mirreen Avenue, Davistown NSW 2251 at Lot 164 in Deposited Plan 5350 in the vicinity of, or located across, the boundary between Lot 164 in Deposited Plan 5350 and 51 Mirreen Avenue, Davistown NSW 2251 at Lot 165 in Deposited Plan 5350. 7. Liberty to restore on 3 days' notice. 8. Costs are reserved. Note: The Court notes that the matter has been adjourned pending the LRS providing a boundary determination survey in relation to LOT 165 in DP 5350 and LOT 164 in DP 5350. ********** 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: 22 November 2023