Hi v Hecker [2013] NSWSC 1024

Hi v Hecker [2013] NSWSC 1024

The appeal was out of time, but the question of an extension of time was reserved for the judge hearing the appeal. The Court rejected the contention that the appeal was vexatious, frivolous or an abuse of process because it was an attempt to exercise a statutory right of appeal in the same proceedings. Prayer 5 was beyond any power the Court could exercise under s 19 of the Dividing Fences Act 1991 (NSW) and was struck out. Grounds 3 to 9 could not be construed as raising complaints solely based on points of law and were struck out. Grounds 1 and 2 were permitted to stand because, on a restricted basis, they were capable of raising points of law: denial of natural justice and a Hope v...

Jurisdiction
Australia
Judgment Date
26 July 2013
Procedural Posture
Appeal to the Supreme Court From a Local Court Order Under the Dividing Fences Act 1991 (nsw); Notice of Motion for Summary Dismissal / Interlocutory Application Before Hearing of the Appeal
Outcome
Defendant's notice of motion for summary dismissal was allowed in part; prayer 5 and grounds 3 to 9 were struck out, grounds 1 and 2 were allowed to stand on a limited basis, the appeal was fixed for hearing, the extension of time question was reserved, and security for costs was refused.
Legal Topics
['summary Dismissal Under UCPR R 14.28' 'appeal on a Point of Law' 'extension of Time to Appeal' 'natural Justice' 'security for Costs']
['practice and Procedure' 'local Court Appeals' 'dividing Fences'] ['summary Dismissal Under UCPR R 14.28' 'appeal on a Point of Law' 'extension of Time to Appeal' 'natural Justice' 'security for Costs']

Case Brief

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Procedural Posture

Appeal to the Supreme Court From a Local Court Order Under the Dividing Fences Act 1991 (nsw); Notice of Motion for Summary Dismissal / Interlocutory Application Before Hearing of the Appeal

Legal Issues

  1. 1 ['Whether the appeal should be summarily dismissed under UCPR r 14.28 as incompetent, vexatious, frivolous or an abuse of process.' "Whether the plaintiff's grounds of appeal raised a complaint that the Local Court order was erroneous in point of law within s 19(2) of the Dividing Fences Act 1991 (NSW)." 'Whether prayer 5 in the amended summons was beyond the power of the Supreme Court on the statutory appeal.' 'Whether time for bringing the appeal should be extended.' 'Whether security for costs should be ordered against the plaintiff.']

Ratio Decidendi

The appeal was out of time, but the question of an extension of time was reserved for the judge hearing the appeal. The Court rejected the contention that the appeal was vexatious, frivolous or an abuse of process because it was an attempt to exercise a statutory right of appeal in the same proceedings. Prayer 5 was beyond any power the Court could exercise under s 19 of the Dividing Fences Act 1991 (NSW) and was struck out. Grounds 3 to 9 could not be construed as raising complaints solely based on points of law and were struck out. Grounds 1 and 2 were permitted to stand because, on a restricted basis, they were capable of raising points of law: denial of natural justice and a Hope v...

Court Disposition

Defendant's notice of motion for summary dismissal was allowed in part; prayer 5 and grounds 3 to 9 were struck out, grounds 1 and 2 were allowed to stand on a limited basis, the appeal was fixed for hearing, the extension of time question was reserved, and security for costs was refused.

Orders

  • ['I strikeout prayer five pursuant to the provisions of rule 14.28 in the Uniform Civil Procedure Rules 2005.' 'I strikeout grounds three to nine inclusive pursuant to rule 14.28.' 'I fix the matter for hearing on 21 August 2013 at 10:00 am with an estimate of two hours.' 'I reserve to the judge hearing the appeal...