Young v Richmond Valley Council [2020] NSWSC 514

Supreme Court New South Wales

Medium Neutral Citation: Young v Richmond Valley Council [2020] NSWSC 514 Hearing dates: On the papers Date of orders: 08 May 2020 Decision date: 08 May 2020 Jurisdiction: Equity Before: Darke J Decision: Plaintiff's Statement of Claim ordered to be struck out. Catchwords: CIVIL PROCEDURE — summary disposal — dismissal of proceedings — claim to ownership of lands by virtue of adverse possession – Defendant Council contends that claim is bound to fail because lands are public roads that vested in it pursuant to s 232 of the Local Government Act 1919 (NSW) and remain so vested pursuant to s 145(3) of the Roads Act 1993 (NSW) – whether roads closed in 1963 pursuant to Public Roads Act 1902 (NSW) – where evidence of historical ownership of lands not sufficient to show that Plaintiff's claim will almost certainly fail – proceedings not appropriate for summary dismissal

CIVIL PROCEDURE – pleadings — striking out – plaintiff filed Statement of Claim claiming entitlement to lands by virtue of adverse possession – lands claimed not precisely identified or defined – lands in part owned by State of New South Wales – State not joined as a party to proceedings – Statement of Claim does not recite material facts to show how title by adverse possession came to be acquired by Plaintiff – Statement of Claim plainly inadequate for the purpose of identifying Plaintiff's claims to ownership of lands by adverse possession – appropriate to order that Statement of Claim be struck out – leave granted to file amended Statement of Claim Legislation Cited: Local Government Act 1919 (NSW), ss 224(3)(d), 232 Public Roads Act 1902 (NSW) Roads (Public) Act 1833 (NSW) (4 William IV No 11) Roads Act 1993 (NSW), s 145(3) Uniform Civil Procedure Rules 2005, rr 13.4, 14.28 Cases Cited: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 Casson v Leichhardt Council (2011) 186 LGERA 34; [2011] NSWLEC 243 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Weber v Ankin [2008] NSWSC 106 Category: Procedural and other rulings Parties: Gary Young (Plaintiff) Richmond Valley Council (Defendant) Representation: Counsel: Mr S Fitzpatrick (Defendant)