Gee v Burger [2009] NSWSC 149

Gee v Burger [2009] NSWSC 149

The Plaintiffs' proposed amended claims concerning interference with the right of way, possible erection of a gate or obstruction, video surveillance, nuisance, privacy, standing and joinder were arguable and depended on facts to be determined at a final hearing. The claims were not shown to be hopeless or doomed to failure, and alleged defects in the prayers for relief or prolixity did not justify refusing leave to amend or striking out the pleading. Jessie Noel Shaw was an appropriate party because she owned part of the alleged servient tenement.

Jurisdiction
Australia
Judgment Date
13 March 2009
Procedural Posture
Practice and Procedure Pleadings Application for Leave to Amend Statement of Claim and Application to Strike Out Pleading / Interlocutory Notices of Motion
Outcome
Plaintiffs' notice of motion granted; First Defendant's notice of motion dismissed.
Legal Topics
['amendment of Pleadings' 'strike Out for No Reasonable Cause of Action' 'easement and Right of Way' 'declaratory Relief' 'nuisance' 'privacy' 'standing' 'joinder of Defendant' 'prolixity of Pleading']
['practice and Procedure' 'property Law' 'equity' 'torts'] ['amendment of Pleadings' 'strike Out for No Reasonable Cause of Action' 'easement and Right of Way' 'declaratory Relief' 'nuisance' 'privacy' 'standing' 'joinder of Defendant' 'prolixity of Pleading']

Case Brief

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Procedural Posture

Practice and Procedure Pleadings Application for Leave to Amend Statement of Claim and Application to Strike Out Pleading / Interlocutory Notices of Motion

Legal Issues

  1. 1 ['Whether the Plaintiffs should be granted leave to file an amended statement of claim.' 'Whether the proposed amended statement of claim disclosed a reasonable cause of action or was liable to be struck out.' 'Whether claims concerning interference with an easement and proposed gate or obstruction were arguable rather than hypothetical.' 'Whether the Plaintiffs had an arguable cause of action in nuisance or privacy arising from video or digital camera surveillance of the access road.' 'Whether certain Plaintiffs had sufficient standing to seek relief in respect of the easement.' 'Whether Jessie Noel Shaw should be joined as a defendant.' 'Whether alleged prolixity or argumentative drafting justified refusing leave to amend or striking out the pleading.']

Ratio Decidendi

The Plaintiffs' proposed amended claims concerning interference with the right of way, possible erection of a gate or obstruction, video surveillance, nuisance, privacy, standing and joinder were arguable and depended on facts to be determined at a final hearing. The claims were not shown to be hopeless or doomed to failure, and alleged defects in the prayers for relief or prolixity did not justify refusing leave to amend or striking out the pleading. Jessie Noel Shaw was an appropriate party because she owned part of the alleged servient tenement.

Court Disposition

Plaintiffs' notice of motion granted; First Defendant's notice of motion dismissed.

Orders

  • ['Orders as sought in paragraphs 1, 2 and 3 in the notice of motion filed by the Plaintiffs on 8 February 2008.' 'The notice of motion filed by the First Defendant on 20 March 2008 be dismissed.' 'The costs of the notice of motion filed by the Plaintiffs on 8 February 2008 be the costs of the Plaintiffs in the...