Partington v Newcastle City Council [2014] NSWSC 1315

Supreme Court New South Wales

Medium Neutral Citation: Partington v Newcastle City Council [2014] NSWSC 1315 Hearing dates: 2 June 2014 Decision date: 02 June 2014 Jurisdiction: Common Law Before: Adams J Decision: 1. Summons dismissed. 2. Plaintiff to pay the defendant's costs. Legislation Cited: Enclosed Land Protection Act 1901 (NSW). Impounding Act 1993 (NSW) Cases Cited: Partington v Newcastle City Council [2014] NSWSC 352 Category: Interlocutory applications Parties: Ricky Partington (plaintiff) Newcastle City Council (defendant) Representation: Counsel: No appearance (plaintiff) F Maher (defendant) Solicitors: File Number(s): 2014/57910

ex tempore Judgment 1The facts in this matter are helpfully set out in the judgment of Garling J of 26 February 2014: Partington v Newcastle City Council [2014] NSWSC 352. Certain procedural steps were taken following his Honour's orders refusing interlocutory relief as claimed by the plaintiff, ordering the plaintiff to pay the defendant's costs and standing the summons over before the Registrar on 12 March 2014. 2On 4 March 2014, by email, the plaintiff demanded that the Council pay him $40,000 for the caravan, which was the subject of his action, failing which, he would file an amended summons for damages for that amount. The Council responded that it would not pay the demand. 3At the directions hearing on 12 March 2014, the plaintiff had neither filed nor served a motion for leave to amend the summons. Nor did he put on any further evidence. The Registrar ordered that he file a motion, together with a supporting affidavit by 14 March 2014, and that the Council file and serve any motion and supporting affidavit by 18 March 2014, (presumably a motion to dismiss the proceedings), and that both motions would be returnable on 20 March 2014. 4On 12 March 2014 the plaintiff filed a motion for leave to amend his summons, together with an affidavit, sworn 10 March 2014, a draft amended summons, and a further "draft" affidavit, also sworn 10 March 2014. He did not serve these documents on the Council until the afternoon of 17 March 2014. 5In his draft amended summons, the plaintiff sought an order for damages for the "sale amount" of the caravan of $44,000, and an order to allow him to enter and exit Stockton Caravan Park at any time. 6The so-called draft affidavit (also of 10 March 2014, which does not appear to be on the court file), a copy of which has been handed to me by counsel for the defendant, attaches emails between the plaintiff and the defendant, on the one hand, informing the defendant of the intention of the plaintiff to seek $40,000 for the sale price of the caravan, giving the defendant an opportunity to make payment prior to the directions hearing, and on the other, the response of the Council refusing the demand. There was further communication from the plaintiff increasing the demand for damages to $44,000, the extra $4,000 said to be referable to the value of the contents of the caravan, and notifying the Council of his intention to seek an injunction permitting him to enter and exit the park at any time "to visit friends", and annexing further correspondence, to which it is unnecessary to refer. 7At the hearing of the plaintiff's motion on 20 March 2014, the Council contended that no reasonable cause of action had been disclosed and sought dismissal of the summons in the absence of any amendment, which the defendant did not oppose, providing orders were made for the proceedings to continue by way of pleadings. The orders made were as follows - "1. Note the undertaking given to the Court by Newcastle City Council that it will not dispose off or sell the caravan, it's annexe and contents prior to 24 April 2014 or further order of the Court. 2. The plaintiff have leave to file and serve the amended summons by 5pm on Thursday 20 March 2014. 3. The plaintiff to file and serve a statement of claim fully setting out the factual and legal basis for his claim by 5pm on Thursday 3 April 2014. 4. The defendant (if so advised) to file and serve a motion for summary dismissal and/or strike out by 5pm on Thursday 17 April 2014. 5. The proceedings be listed for further directions on Thursday 24 April 2014. 6. Any motion referred to in order 4 is to be returnable on 24 April 2014. 7. Stood over to 24 April 2014. 8. Leave to Mr Partington to file and serve his statement of claim via email with the Court at supremecourt.enquiries@courts.nsw.gov.au 9. Note Council will accept service via email from Mr Partington. 10. Note defendant's contention re amended summons." 8At the hearing, counsel for the defendant informed the Court that the defendant undertook not to sell or otherwise dispose of the caravan before 24 April 2014. The plaintiff did not serve a statement of claim by the ordered date, but on 22 April 2014, five days out of time (without having received the plaintiff's statement of claim) the defendant filed and served the present motion, together with an affidavit of Donald James Marshall. 9At the hearing on 24 April 2014, given the lateness of its motion, the defendant sought orders standing over the hearing for seven days. The plaintiff had not attended the hearing, having emailed the Court that he was overseas for an unspecified time. The Registrar ordered that the defendant's motion be returnable on 8 May 2014 and, if a further adjournment was sought by the defendant, an affidavit setting out all the information in support of such an application, to be served by email both to the Court and the defendant's solicitor. Nothing further has been done by the plaintiff, and having been served with a notice of the present hearing, the plaintiff has not attended. 10In his email to the Court concerning the proposed hearing on 8 May 2014, the plaintiff had asked for an adjournment "until some time early in June as I will be back on 28 May". Accordingly, Button J stood over the hearing to 2 June 2014, before the Common Law Registrar in the first instance. The plaintiff did not appear before the Registrar, who accordingly referred the motion to me. By 10.45am the plaintiff had not come to court. It is now 11.10am and he is still not here. 11Button J had ordered that the plaintiff should be informed of his Honour's orders by way of email to the address disclosed in the email from the plaintiff to the Court. I am informed that the plaintiff is in a position to establish that this was done, but not presently with an affidavit. Provided an affidavit is served within 24 hours, the orders I propose to make will take effect. I do not see why the defendant should be put to further expense arising out of this action. 12The judgment of Garling J, to which I have adverted, states the facts as alleged by the plaintiff himself. In summary, establishing "a bill of sale" for the caravan in question by the previous owners. As it happened, their entitlement to occupy the site at the caravan park had been terminated on 1 November 2013, and accordingly, the vendors were required to deliver up vacant possession of the site to the defendant on or before 29 March 2014. 13The management of the park informed the plaintiff that the owners had not consented to his occupying a site on the park, and would not be offering him an occupation agreement for the particular site on which the caravan was situated, and prohibited the plaintiff from entering or remaining in the park after 5pm on February 2014, requiring him to remove the caravan and annexe no later than that time and date. The owners informed him that failure to remove the caravan and annexe from the site, and entering and remaining in the park after the specified time, would result in a prosecution for trespass under the Enclosed Land Protection Act 1901 (NSW). This letter produced a defiant response by the plaintiff, in which, in substance, he declined to comply with the demand. 14On 21 February 2014 the defendant sent the plaintiff a notice under the Impounding Act 1993 (NSW) relating to the caravan and annexe. The plaintiff sought the relief claimed upon his evidence that he had an oral agreement with the manager of the caravan park, permitting him to access the park for a period of three weeks, to undertake repairs and remove the caravan. As Garling J noted, the defendant did not adduce any evidence before him from the manager of the caravan park, but disputes the plaintiff's account by reference to contemporaneous documents. 15Garling J noted that the plaintiff, by way of submissions, answering questions from the Court, said that the conversation with the manager occurred in the week of, or a few days leading up to15 February 2014. However, contemporaneous emails set out about that time, and shortly afterwards, by the plaintiff, do not support, as his Honour found, the making of such an oral agreement. His Honour set out those emails. In particular, that of 17 February 2014, to the following effect. "As from 16th onwards, I have now become the official owner of the caravan site and number 133. I would just like to make arrangements with you to pay the fees for the site. Can you please contact me via email in regards to this please". If I may say so respectfully, as his Honour rightly noted, this email was sent when the plaintiff said he had already entered into an agreement with the park manager. His Honour concluded that it was inconsistent with such an agreement. I am of the same opinion as his Honour. There had been a number of other email exchanges between the plaintiff and the defendant from as early as 18 February 2014, the latter having refused to accept the plaintiff's claim to occupy the site in question. It is surprising that in the plaintiff's responses, although otherwise in emphatic terms, he did not manage to point out that he had the alleged agreement with the manager. 16In these circumstances it is simply impossible to accept that such an agreement existed. It follows therefore that the only basis put forward by him to resist the rights of the defendant is not credible. I would have at all events dismissed the plaintiff's summons for failure to prosecute the action. But it seems to me the defendants are entitled to a substantive order dismissing the summons on the ground that it discloses no arguable cause of action. 17The plaintiff must pay the defendant's costs.