Peter Dimitri Papas -v- Warwick Sutton Grave [2012] NSWSC 1461

Peter Dimitri Papas -v- Warwick Sutton Grave [2012] NSWSC 1461

The plaintiffs did not establish that material matters or legal principles were omitted from the ex parte application which ought to have been put to Ward J and which might have affected the decision to grant the injunction. There was no breach of counsel's duty on the ex parte application, the complaint about the absence of an undertaking as to damages did not justify revisiting the order on this motion, and the plaintiffs had consented to continuation of the orders without showing unusual circumstances. The Notice of Motion was therefore dismissed.

Jurisdiction
Australia
Judgment Date
27 November 2012
Procedural Posture
Equity Proceedings Concerning an Ex Parte Injunction Over Building or Construction Works on Land Subject to a Right of Carriageway / Notice of Motion to Set Aside an Ex Parte Injunctive Order Made on 13 June 2012
Outcome
Notice of Motion dismissed. Plaintiff to pay defendant's costs.
Legal Topics
['ex Parte Injunctions' 'duty of Disclosure on Ex Parte Applications' 'undertaking as to Damages' 'easements and Rights of Carriageway' 'abuse of Process' 'contempt of Court']
['equity' 'civil Procedure' 'property Law'] ['ex Parte Injunctions' 'duty of Disclosure on Ex Parte Applications' 'undertaking as to Damages' 'easements and Rights of Carriageway' 'abuse of Process' 'contempt of Court']

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Procedural Posture

Equity Proceedings Concerning an Ex Parte Injunction Over Building or Construction Works on Land Subject to a Right of Carriageway / Notice of Motion to Set Aside an Ex Parte Injunctive Order Made on 13 June 2012

Legal Issues

  1. 1 ['Whether the ex parte injunctive order made by Ward J should be set aside for alleged failure to disclose material matters or relevant law.' 'Whether counsel on the ex parte application breached obligations by the way the abuse of process or contempt argument was put.' 'Whether the absence of an undertaking as to damages justified setting aside the interlocutory injunction.' 'Whether the plaintiffs were bound by their consent to continuation of the orders on 2 July 2012 absent unusual circumstances.']

Ratio Decidendi

The plaintiffs did not establish that material matters or legal principles were omitted from the ex parte application which ought to have been put to Ward J and which might have affected the decision to grant the injunction. There was no breach of counsel's duty on the ex parte application, the complaint about the absence of an undertaking as to damages did not justify revisiting the order on this motion, and the plaintiffs had consented to continuation of the orders without showing unusual circumstances. The Notice of Motion was therefore dismissed.

Court Disposition

Notice of Motion dismissed. Plaintiff to pay defendant's costs.

Orders

  • ['Notice of Motion dismissed.' "Plaintiff to pay defendant's costs." 'The exhibits can be returned.']