Norris v Hamberger [2008] NSWSC 785

Norris v Hamberger [2008] NSWSC 785

The plaintiff did not show a proper basis to depart from UCPR 42.19. The first defendant reasonably defended the proceedings because he denied the alleged agreement and maintained that it could not be performed as he did not own the closed road. The Minister's later proposal was a supervening event but did not...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
01 August 2008
Procedural Posture
Supreme Court of New South Wales Equity Division Civil Proceedings Concerning Property, Alleged Agreement, Encroachment and Costs / Plaintiff's Notice of Motion for Leave to Discontinue Proceedings and Costs
Outcome
Leave granted to discontinue the proceedings; plaintiff ordered to pay the first defendant's costs.
Legal Topics
['leave to Discontinue Proceedings Under UCPR 12.1' 'costs on Discontinuance Under UCPR 42.19' 'alleged Oral Agreement for Adjustment of Boundaries' 'specific Performance' 'encroachment of Buildings' 'closed Road and Crown Land']
['civil Procedure' 'costs' 'property Law' 'equity'] ['leave to Discontinue Proceedings Under UCPR 12.1' 'costs on Discontinuance Under UCPR 42.19' 'alleged Oral Agreement for Adjustment of Boundaries' 'specific Performance' 'encroachment of Buildings' 'closed Road and Crown Land']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Supreme Court of New South Wales Equity Division Civil Proceedings Concerning Property, Alleged Agreement, Encroachment and Costs / Plaintiff's Notice of Motion for Leave to Discontinue Proceedings and Costs

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave under UCPR 12.1 to discontinue the proceedings.' "Whether the Court should order otherwise than the statutory costs consequence in UCPR 42.19 that the plaintiff pay the first defendant's costs on discontinuance." 'Whether the plaintiff acted reasonably in commencing the proceedings and whether the first defendant acted reasonably in defending them.' "Whether the Minister's later proposal concerning the closed road justified a different costs order."]

Ratio Decidendi

The plaintiff did not show a proper basis to depart from UCPR 42.19. The first defendant reasonably defended the proceedings because he denied the alleged agreement and maintained that it could not be performed as he did not own the closed road. The Minister's later proposal was a supervening event but did not resolve or modify the pleaded dispute concerning enforcement of the alleged agreement against the first defendant, and the plaintiff had not demonstrated that commencing those proceedings against him was justified or that his conduct made them necessary. The plaintiff therefore had to pay the first defendant's costs of the discontinued proceedings.

Court Disposition

Leave granted to discontinue the proceedings; plaintiff ordered to pay the first defendant's costs.

Orders

  • ['I grant leave to the plaintiff in accordance with UCPR 12.1 to discontinue the proceedings.' "I order the plaintiff to pay the first defendant's costs."]