Chaisumdet v Milperra Hotel [2006] NSWSC 470

New South Wales Supreme Court

CITATION : Chaisumdet v Milperra Hotel [2006] NSWSC 470

HEARING DATE(S) : 03/05/2006

JUDGMENT DATE : 3 May 2006

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 05/03/2006

DECISION : Dismiss the plaintiffs' oral application for leave to join second defendant. Extend time for amended summons. Order that the proceedings continue on pleadings.

CATCHWORDS : PROCEDURE – Joinder – where whereabouts of proposed additional defendant, if alive, not known – where no sufficiently arguable case against proposed additional defendant

Bounchong Chaisumdet (P1) PARTIES : Saming Chaisumdet (P2) Nang Chaisumdet (P3) Milperra Hotel Pty Ltd (ACN 000 213 829)

FILE NUMBER(S) : SC 6350/04

COUNSEL : Mr G K Burton SC (Ps) Mr D H Murr SC (D)

SOLICITORS : Comasters Law Firm and Notary Public (Ps) Anthony Clive Parisi Solicitor (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Wednesday 3 May 2006

6350/04 Bounchong Chaisumdet & 2 Ors v Milperra Hotel Pty Limited

JUDGMENT

1 HIS HONOUR: The plaintiff seeks leave to join as second defendant Colin Michael McIlveen, for the purposes of claiming against him, alternatively to the relief under Conveyancing Act 1919 (NSW), s 88K, which is already sought, (1) a declaration that there is a valid and legally enforceable agreement between the first defendant Milperra and Mr McIlveen - the latter being said to be the predecessor in title of the plaintiffs - to create an easement for right of way in a manner recorded in a letter from Milperra to Fairfield Municipal Council, dated 4 April 1978; and (2) an order that Milperra and Mr McIlveen specifically perform that agreement.