Young v King (No.2) [2009] NSWLEC 125

Young v King (No.2) [2009] NSWLEC 125

Given the long-running and highly contentious nature of the drainage and retaining wall dispute, the existence of multiple extant Notices of Motion years after final orders, related District Court proceedings, the parties' distrust of each other's experts, the importance of Warringah Council's participation, and the statutory objective of resolving matters completely and finally without multiplicity of proceedings, reopening the proceedings for another adversarial hearing would not achieve the s 22 objective. The circumstances were appropriate to refer the proceedings, except any question of contempt, to mediation under s 26(1) of the Civil Procedure Act 2005.

Jurisdiction
Australia
Judgment Date
31 July 2009
Procedural Posture
Class 4 Proceedings in the Land and Environment Court Concerning Neighbouring Property Drainage and Retaining Wall Works / Determination of Whether Extant Notices of Motion Should Proceed and Whether the Proceedings Should Be Referred to Mediation
Outcome
Proceedings, save for any question of contempt, referred to mediation before the Hon Mahla Liane Pearlman AO.
Legal Topics
['referral to Mediation' 'reopening Completed Proceedings' 'notices of Motion' 'undertakings to the Court' 'neighbouring Property Drainage Dispute' 'contempt Allegations']
['practice and Procedure' 'land and Environment' 'civil Procedure'] ['referral to Mediation' 'reopening Completed Proceedings' 'notices of Motion' 'undertakings to the Court' 'neighbouring Property Drainage Dispute' 'contempt Allegations']

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Procedural Posture

Class 4 Proceedings in the Land and Environment Court Concerning Neighbouring Property Drainage and Retaining Wall Works / Determination of Whether Extant Notices of Motion Should Proceed and Whether the Proceedings Should Be Referred to Mediation

Legal Issues

  1. 1 ['Whether the completed class 4 proceedings should be reopened for further adversarial hearing of the original dispute.' 'Whether the circumstances were appropriate for an order under s 26(1) of the Civil Procedure Act 2005 referring the proceedings, except any question of contempt, to mediation.' 'Whether the mediation should involve Warringah Council and be informed by expert material acceptable to the parties.' 'How the costs of mediation should initially be borne.']

Ratio Decidendi

Given the long-running and highly contentious nature of the drainage and retaining wall dispute, the existence of multiple extant Notices of Motion years after final orders, related District Court proceedings, the parties' distrust of each other's experts, the importance of Warringah Council's participation, and the statutory objective of resolving matters completely and finally without multiplicity of proceedings, reopening the proceedings for another adversarial hearing would not achieve the s 22 objective. The circumstances were appropriate to refer the proceedings, except any question of contempt, to mediation under s 26(1) of the Civil Procedure Act 2005.

Court Disposition

Proceedings, save for any question of contempt, referred to mediation before the Hon Mahla Liane Pearlman AO.

Orders

  • ['Pursuant to the provisions of Part 4 of the Civil Procedure Act 2005, these proceedings, save for any question of contempt, are referred to the Honourable Mahla Liane Pearlman AO for mediation.' 'The parties are to share equally the costs of the mediation but shall have liberty to explore with Warringah Council...