The Owners – Strata Plan No 61233 v Arcidiacono [2018] NSWSC 1260

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan No 61233 v Arcidiacono [2018] NSWSC 1260 Hearing dates: 25 July 2018 Date of orders: 14 August 2018 Decision date: 14 August 2018 Jurisdiction: Equity Before: Darke J Decision: Leave to file cross claim refused. Catchwords: PRACTICE AND PROCEDURE – pleadings – application for leave to file cross claim – leave to file cross claim refused because proposed claims untenable and bound to fail – clear that legal easements were validly created in 1839 – entitlement to set aside orders made ex parte resides in the person not given the opportunity to be heard – right is personal not proprietary in nature – cross-claimants lack standing to seek to set aside orders made in earlier proceedings Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 58 Conveyancing Act 1919 (NSW), s 88K Real Property Act 1900 (NSW), ss 28I, 28K Uniform Civil Procedure Rules 2005 (NSW), rr 14.18, 14.28 Cases Cited: BP Australia Ltd v Brown (2003) 58 NSWLR 322; [2003] NSWCA 216 Cameron v Cole (1944) 68 CLR 571 Doe ex diem Antil v Hodges (1835) NSW Sel Cas (Dowling) 701; [1835] NSWSupC 36 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Category: Procedural and other rulings Parties: The Owners – Strata Plan No 61233 (Plaintiff/First Respondent) John Anthony Arcidiacono (First Defendant/First Applicant) Anna Marie Arcidiacono (Second Defendant/Second Applicant) The Owners – Strata Plan No 17719 (Second Respondent) The Owners – Strata Plan No 73850 (Third Respondent) Registrar-General for NSW (Fourth Respondent) Representation: Counsel: Mr A Rogers (Plaintiff/First Respondent) Mr C A Sweeney QC with Mr R Higgins (Defendants/Applicants) Ms K Rees SC (Second Respondent) Mr D F Elliott (Third Respondent) Ms L Walsh (Fourth Respondent)