Mourched v Transport for NSW [2020] NSWSC 1766

Mourched v Transport for NSW [2020] NSWSC 1766

Leave to file the proposed amended statement of claim is refused as it fails to plead material facts necessary to establish two preconditions for relief under s 88K(2) of the Conveyancing Act 1919 (NSW): (1) that the owner of the burdened land can be adequately compensated for any loss or disadvantage; and (2) that all reasonable attempts have been made and failed to obtain the easement. The absence of those allegations makes the proposed pleading liable to be struck out and thus precludes leave to file it.

Jurisdiction
Australia
Judgment Date
08 December 2020
Procedural Posture
Application for Leave to Amend Pleading / Interlocutory
Outcome
Leave to file the proposed amended statement of claim refused; directions made for further pleading and notification by parties; plaintiffs' notice of motion stood over.
Legal Topics
['pleadings' 'court Imposed Easements' 'amendment of Statement of Claim' 'elements of Claim Under S 88 K Conveyancing Act 1919 (nsw)']
['civil Procedure' 'equity' 'real Property'] ['pleadings' 'court Imposed Easements' 'amendment of Statement of Claim' 'elements of Claim Under S 88 K Conveyancing Act 1919 (nsw)']

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Procedural Posture

Application for Leave to Amend Pleading / Interlocutory

Legal Issues

  1. 1 ['Whether the proposed amended statement of claim discloses a reasonable cause of action under s 88K of the Conveyancing Act 1919 (NSW)' 'Whether the plaintiffs have pleaded all material facts necessary as preconditions for relief under s 88K(2)' 'Whether leave should be granted to file the proposed amended statement of claim, or refused as it would be liable to be struck out']

Ratio Decidendi

Leave to file the proposed amended statement of claim is refused as it fails to plead material facts necessary to establish two preconditions for relief under s 88K(2) of the Conveyancing Act 1919 (NSW): (1) that the owner of the burdened land can be adequately compensated for any loss or disadvantage; and (2) that all reasonable attempts have been made and failed to obtain the easement. The absence of those allegations makes the proposed pleading liable to be struck out and thus precludes leave to file it.

Court Disposition

Leave to file the proposed amended statement of claim refused; directions made for further pleading and notification by parties; plaintiffs' notice of motion stood over.

Orders

  • ['Refuse leave for the filing of the proposed amended statement of claim.' 'Direct the plaintiffs, if they wish to pursue this application, to serve by 16 December 2020 a further proposed amended statement of claim which addresses the pleading issues set out in these reasons.' 'Direct the second defendant to notify...