Arcidiacono v The Owners – Strata Plan 61233 [2019] NSWCA 46

Arcidiacono v The Owners – Strata Plan 61233 [2019] NSWCA 46

Leave to appeal was refused because the proposed cross-claim was untenable and bound to fail. The 1839 rights of way were enforceable at least in equity and, after reconveyance, by estoppel; the applicants had notice of them, and the interests were subsisting interests for the purposes of the qualified folios. The applicants could not invoke a former owner's personal right to set aside the 2003 orders for denial of procedural fairness. Delay, impending trial, and the need to add parties and adjourn the hearing also supported refusal of leave.

Jurisdiction
Australia
Judgment Date
14 March 2019
Procedural Posture
Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Orders of the Supreme Court of New South Wales, Equity Division, Refusing Leave to File a Cross Claim
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['easements' 'qualified Folios Under the Real Property Act 1900 (nsw)' 'registration of Deeds' 'bona Fide Purchaser for Value Without Notice' 'reopening Ex Parte Proceedings' 'case Management' 'leave to File Cross Claim']
['land Law' 'civil Procedure'] ['easements' 'qualified Folios Under the Real Property Act 1900 (nsw)' 'registration of Deeds' 'bona Fide Purchaser for Value Without Notice' 'reopening Ex Parte Proceedings' 'case Management' 'leave to File Cross Claim']

Case Brief

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Procedural Posture

Application for Leave to Appeal / Court of Appeal Application for Leave to Appeal From Orders of the Supreme Court of New South Wales, Equity Division, Refusing Leave to File a Cross Claim

Legal Issues

  1. 1 ['Whether rights of way purportedly granted by deeds in 1839 were enforceable against the applicants as present owners of the passageways.' 'Whether equitable rights of way created or arising from the 1839 deeds were subsisting interests capable of being recorded on qualified folios under s 28I of the Real Property Act 1900 (NSW).' 'Whether the applicants could rely on absence of notice, or absence of notice by an earlier owner, to avoid the claimed 1839 rights of way.' 'Whether the applicants, as successors in title, could seek to set aside orders made in 2003 under s 88K of the Conveyancing Act 1919 (NSW) in the absence of the then owner of the servient tenement.' 'Whether case management considerations supported refusal of leave to file the proposed cross-claim.']

Ratio Decidendi

Leave to appeal was refused because the proposed cross-claim was untenable and bound to fail. The 1839 rights of way were enforceable at least in equity and, after reconveyance, by estoppel; the applicants had notice of them, and the interests were subsisting interests for the purposes of the qualified folios. The applicants could not invoke a former owner's personal right to set aside the 2003 orders for denial of procedural fairness. Delay, impending trial, and the need to add parties and adjourn the hearing also supported refusal of leave.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Dismiss the application for leave to appeal.' 'Applicant to pay the costs of each of the respondents.']