Crawley v Baxter [2022] NSWSC 1493

Crawley v Baxter [2022] NSWSC 1493

Leave to re-open was granted because the defendant's proposed evidence about post-hearing works to Craddock's Creek Trail was fresh, relevant and potentially important to the defence of the plaintiff's s 88K claim concerning alternative access; the motion was brought promptly; the re-opened evidence was relatively confined; and the interests of justice were best served by considering that evidence together with the plaintiff's responsive affidavits and submissions, without determining the evidentiary conflicts on the interlocutory application.

Jurisdiction
Australia
Judgment Date
02 November 2022
Procedural Posture
Application for Leave to Re Open Case to Adduce Further Affidavit Evidence in Proceedings Seeking an Easement Under S 88 K of the Conveyancing Act 1919 (nsw) / On the Papers After Completion of Hearing and While Judgment Reserved
Outcome
Application for leave to re-open granted.
Legal Topics
['application to Re Open Case' 'further Affidavit Evidence After Judgment Reserved' 'easement Under S 88 K of the Conveyancing Act 1919 (nsw)' 'alternative Access Route to Land' 'overriding Purpose']
['civil Procedure' 'equity' 'property Law'] ['application to Re Open Case' 'further Affidavit Evidence After Judgment Reserved' 'easement Under S 88 K of the Conveyancing Act 1919 (nsw)' 'alternative Access Route to Land' 'overriding Purpose']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Re Open Case to Adduce Further Affidavit Evidence in Proceedings Seeking an Easement Under S 88 K of the Conveyancing Act 1919 (nsw) / On the Papers After Completion of Hearing and While Judgment Reserved

Legal Issues

  1. 1 ['Whether the defendant should be granted leave to re-open his case to file, serve and rely on further affidavit evidence after the hearing had concluded and judgment had been reserved.' "Whether the further evidence concerning works to Craddock's Creek Trail was relevant and potentially important to the issue of alternative access to the plaintiff's land." "Whether the interests of justice favoured admitting the defendant's further evidence on terms allowing the plaintiff to rely on responsive affidavits and submissions."]

Ratio Decidendi

Leave to re-open was granted because the defendant's proposed evidence about post-hearing works to Craddock's Creek Trail was fresh, relevant and potentially important to the defence of the plaintiff's s 88K claim concerning alternative access; the motion was brought promptly; the re-opened evidence was relatively confined; and the interests of justice were best served by considering that evidence together with the plaintiff's responsive affidavits and submissions, without determining the evidentiary conflicts on the interlocutory application.

Court Disposition

Application for leave to re-open granted.

Orders

  • ["The defendant be given leave to re-open his case to file and rely on the affidavit of Damien O'Brien affirmed 16 September 2022 and his outline of submissions dated 13 September 2022." 'The plaintiff be given leave to file and rely on the affidavit of Bernard William Finlay affirmed 10 October 2022 and the...