GLMC Properties 2 Pty Ltd v Hassarati & Co Pty Ltd [2016] NSWSC 1642

GLMC Properties 2 Pty Ltd v Hassarati & Co Pty Ltd [2016] NSWSC 1642

The extension of time was granted because the delay was short, adequately explained by waiting for the transcript of the oral Local Court judgment, and caused no real prejudice. The summons was dismissed because the plaintiff failed to establish any appealable error. The challenges to excluding Ms Winning and MFI 1...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
25 November 2016
Procedural Posture
Appeal From Local Court Decision and Application for Leave to Appeal / Supreme Court Determination of Extension of Time, Appeal Grounds and Summons
Outcome
Time extended; summons dismissed; plaintiff to pay the defendant's costs.
Legal Topics
['appeal From Local Court on Question of Law' 'leave to Appeal on Mixed Law and Fact' 'extension of Time' 'trespass to Land' 'continuing Trespass' 'rock Anchors Under Adjoining Land' 'crane Over Airspace' 'discretionary Evidentiary Rulings']
['practice and Procedure' 'torts' 'property Law' 'evidence'] ['appeal From Local Court on Question of Law' 'leave to Appeal on Mixed Law and Fact' 'extension of Time' 'trespass to Land' 'continuing Trespass' 'rock Anchors Under Adjoining Land' 'crane Over Airspace' 'discretionary Evidentiary Rulings']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Appeal From Local Court Decision and Application for Leave to Appeal / Supreme Court Determination of Extension of Time, Appeal Grounds and Summons

Legal Issues

  1. 1 ['Whether time should be extended for the plaintiff to file its summons appealing or seeking leave to appeal from the Local Court decision.' 'Whether the Magistrate erred in refusing to permit Ms Winning to be called as a witness and rejecting the tender of documents marked MFI 1.' "Whether the Magistrate erred in finding that correspondence between Ms Winning's lawyers and the defendant's lawyers constituted consent for installation of rock anchors." 'Whether the Magistrate erred in finding that all 37 rock anchors had been installed by 21 September 2013.' "Whether the continued presence of rock anchors under the plaintiff's land after it became registered proprietor, and after de-stressing, constituted trespass." "Whether the sailing of a tower crane over the plaintiff's land constituted trespass."]

Ratio Decidendi

The extension of time was granted because the delay was short, adequately explained by waiting for the transcript of the oral Local Court judgment, and caused no real prejudice. The summons was dismissed because the plaintiff failed to establish any appealable error. The challenges to excluding Ms Winning and MFI 1 did not identify House v The King error or establish admissible relevant evidence. The findings that Ms Winning consented to the rock anchors and that all 37 anchors were installed by 21 September 2013 were findings of fact supported by evidence and not errors of law. On those findings, the anchors were installed lawfully with the then proprietor's consent and their continued...

Court Disposition

Time extended; summons dismissed; plaintiff to pay the defendant's costs.

Orders

  • ['Extend time for the filing by the plaintiff of its Summons to 23 December 2015.' 'Summons filed 23 December 2015 is dismissed.' "Plaintiff to pay the defendant's costs."]