The Owners - Strata Plan No 1731 & Anor v Bailey & Ors [2014] NSWSC 875

The Owners - Strata Plan No 1731 & Anor v Bailey & Ors [2014] NSWSC 875

The amended notice of motion was dismissed because the plaintiffs' claims were not so plainly untenable, frivolous, vexatious or abusive that they should be summarily dismissed. It was seriously arguable that the caveat provisions and s 12A of the Real Property Act 1900 (NSW) did not oust the Court's jurisdiction under ss 65 and 66 of the Supreme Court Act 1970 (NSW). Although the plaintiffs no longer asserted a caveatable interest, the Owners Corporation at least arguably had a sufficient special interest, given its adjoining land, claimed use of the path, notice from the Registrar-General, and evidence concerning property values. The easement claim involved questions of fact and degree...

Jurisdiction
Australia
Judgment Date
30 June 2014
Procedural Posture
Interlocutory Application for Summary Dismissal or Strike Out Under Uniform Civil Procedure Rules 2005 (nsw) R 13.4 / Amended Notice of Motion Before Final Hearing
Outcome
Defendant's amended notice of motion dismissed with costs.
Legal Topics
['summary Dismissal' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'torrens Title' 'caveats Against Primary Applications' 'primary Applications' 'standing to Seek Declaratory and Injunctive Relief' 'easements Under S 88 K of the Conveyancing Act 1919 (nsw)']
['procedure' 'real Property' 'equity'] ['summary Dismissal' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'torrens Title' 'caveats Against Primary Applications' 'primary Applications' 'standing to Seek Declaratory and Injunctive Relief' 'easements Under S 88 K of the Conveyancing Act 1919 (nsw)']

Case Brief

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Procedural Posture

Interlocutory Application for Summary Dismissal or Strike Out Under Uniform Civil Procedure Rules 2005 (nsw) R 13.4 / Amended Notice of Motion Before Final Hearing

Legal Issues

  1. 1 ["Whether the plaintiffs' claims in prayers 1 and 2 should be struck out as frivolous or vexatious because the Owners Corporation failed to lodge or maintain a caveat under s 74B of the Real Property Act 1900 (NSW)." "Whether lodgement of a caveat under s 74B of the Real Property Act 1900 (NSW) is the exclusive means to prevent grant of a primary application, ousting the Court's jurisdiction under ss 65 and 66 of the Supreme Court Act 1970 (NSW)." 'Whether the plaintiffs lacked standing to seek relief under ss 65 and 66 of the Supreme Court Act 1970 (NSW) because they did not have a legal or equitable estate or interest in the land sufficient to support a caveat.' "Whether the claim for an easement should be struck out because the plaintiffs had not shown that the easement was reasonably necessary for the effective use or development of the Owners Corporation's land under s 88K(1) of the Conveyancing Act 1919 (NSW)." 'Whether the summons constituted an abuse of process.']

Ratio Decidendi

The amended notice of motion was dismissed because the plaintiffs' claims were not so plainly untenable, frivolous, vexatious or abusive that they should be summarily dismissed. It was seriously arguable that the caveat provisions and s 12A of the Real Property Act 1900 (NSW) did not oust the Court's jurisdiction under ss 65 and 66 of the Supreme Court Act 1970 (NSW). Although the plaintiffs no longer asserted a caveatable interest, the Owners Corporation at least arguably had a sufficient special interest, given its adjoining land, claimed use of the path, notice from the Registrar-General, and evidence concerning property values. The easement claim involved questions of fact and degree...

Court Disposition

Defendant's amended notice of motion dismissed with costs.

Orders

  • ['Leave was not granted to amend the motion to include the abuse of process paragraph.' "The Defendants' motion was dismissed with costs."]