Kelly v Samiri & Anor [1989] NSWLEC 222

Kelly v Samiri & Anor [1989] NSWLEC 222

The proceedings were not oppressive or an abuse of process despite concurrent Supreme Court proceedings because apparent fragmented jurisdictions, the advanced listing of the Land and Environment Court hearing, the much longer likely delay in the Supreme Court, and the likelihood that the Applicant would not continue the Supreme Court proceedings if successful in this Court displaced the prima facie presumption against concurrent proceedings. Any possible prejudice to the 1st Respondent, including inability to pursue Encroachment of Buildings Act relief in this Court, did not outweigh the prejudice to the Applicant from substantial delay.

Jurisdiction
Australia
Judgment Date
11 August 1989
Procedural Posture
Class 4 Proceedings Seeking Prohibitory and Mandatory Injunctions Concerning Building Works and Alleged Encroachments / 1st Respondent's Notice of Motion to Strike Out or Stay the Proceedings for Abuse of Process, With Alternative Relief to Vacate the Hearing Date
Outcome
Motion dismissed with costs; alternative request to vacate the hearing date refused.
Legal Topics
['abuse of Process' 'concurrent Proceedings' 'stay of Proceedings' 'injunctive Relief' 'pendent Jurisdiction' 'encroachment of Buildings' 'environmental Law Enforcement']
['land and Environment' 'civil Procedure' 'property' 'equity'] ['abuse of Process' 'concurrent Proceedings' 'stay of Proceedings' 'injunctive Relief' 'pendent Jurisdiction' 'encroachment of Buildings' 'environmental Law Enforcement']

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

Class 4 Proceedings Seeking Prohibitory and Mandatory Injunctions Concerning Building Works and Alleged Encroachments / 1st Respondent's Notice of Motion to Strike Out or Stay the Proceedings for Abuse of Process, With Alternative Relief to Vacate the Hearing Date

Legal Issues

  1. 1 ['Whether the class 4 proceedings should be struck out or stayed as an abuse of process because the Applicant commenced Supreme Court proceedings on the same day seeking identical injunctive relief.' 'Whether the listed hearing date should be vacated.' 'Whether the existence of separate causes of action and possible jurisdictional limitations displaced the prima facie objection to concurrent proceedings.']

Ratio Decidendi

The proceedings were not oppressive or an abuse of process despite concurrent Supreme Court proceedings because apparent fragmented jurisdictions, the advanced listing of the Land and Environment Court hearing, the much longer likely delay in the Supreme Court, and the likelihood that the Applicant would not continue the Supreme Court proceedings if successful in this Court displaced the prima facie presumption against concurrent proceedings. Any possible prejudice to the 1st Respondent, including inability to pursue Encroachment of Buildings Act relief in this Court, did not outweigh the prejudice to the Applicant from substantial delay.

Court Disposition

Motion dismissed with costs; alternative request to vacate the hearing date refused.

Orders

  • ["The 1st Respondent's alternative relief seeking vacation of the hearing date is refused." 'The Motion is dismissed with costs.']