Ashworth v Terrill [2019] NSWSC 1596

Supreme Court New South Wales

Medium Neutral Citation: Ashworth v Terrill [2019] NSWSC 1596 Hearing dates: On the papers. Date of orders: 18 November 2019 Decision date: 18 November 2019 Jurisdiction: Common Law Before: Adamson J Decision: See [16] Catchwords: ADMINISTRATIVE LAW – procedural fairness – notice not given by Registrar General when primary application made by neighbour to bring land under Real Property Act 1900 (NSW) – relief granted Legislation Cited: Interpretation Act 1987 (NSW), s 33 Real Property Act 1900 (NSW), ss 12, 14, 14A, 17, 42 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: Electrolux Home Products Pty Limited v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Category: Principal judgment Parties: Faye Ashworth (First Plaintiff) Scott Robertson (Second Plaintiff) Robert Terrill (First Defendant) Jennifer Milne (Second Defendant) James Morley (Third Defendant) Registrar General (Fourth Defendant) Representation: Solicitors: PTW Law (Plaintiffs) Wright Lawyer (First, Second and Third Defendants) NSW Department of Finance, Services and Innovation (Fourth Defendant) File Number(s): 2019/230614 Publication restriction: Nil

Judgment

Introduction 1. By summons filed on 25 July 2019, Faye Ashworth (the first plaintiff) and Scott Robertson (the second plaintiff) (together, the plaintiffs) seek to have a decision of the Registrar General, the fourth defendant, set aside on the grounds of denial of procedural fairness. The plaintiffs also seek consequential orders to undo the consequences of the decision. The Registrar General purported to bring land which comprised a lane between two properties, one of which belonged to the plaintiffs and the other which belonged to Robert Terrill, the first defendant, under the provisions of the Real Property Act 1900 (NSW) (the Act). The decision led to the creation of a folio of the Register for the lane of which the first defendant became registered as proprietor. 2. Jennifer Milne (the second defendant) and James Morley (the third defendant) jointly own neighbouring land in xxxxxx xxxxxx. They have filed submitting appearances, as has the Registrar General. 3. The matter, which was listed for hearing before me on 19 November 2019, was resolved by consent on 15 November 2019. The parties provided short minutes of order to my chambers with a view to the orders being made by consent. As the relief sought falls within this Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW), it is necessary for me to satisfy myself that it is appropriate to make the orders. The plaintiff and the first defendant, who are the only active parties to the proceedings, consent to the making of the orders. In these circumstances, it is sufficient to set out a brief outline of the facts as established by the evidence which is contained in the Court Book which was provided to me for this purpose.