The Owners – Strata Plan 61233 v Arcidiacono (No 2) [2019] NSWSC 1876

The Owners – Strata Plan 61233 v Arcidiacono (No 2) [2019] NSWSC 1876

Leave to re-open was refused because the plaintiff’s failure to adduce sufficient evidence to support the s 88K easements for drainage and sewerage was attributable to its own conduct and oversight, not to any error by the court or other party. The new evidence was available or could have been procured with proper diligence prior to the hearing or before judgment. The discretion to re-open is only exercised in exceptional cases, which this was not; finality and efficient conduct of proceedings outweigh re-opening in these circumstances.

Jurisdiction
Australia
Judgment Date
20 December 2019
Procedural Posture
Civil / Post Judgment Motions, Costs, and Orders
Outcome
Leave to re-open refused; costs apportioned.
Legal Topics
['application to Re Open Hearing' 'easements' 'costs' 'finality of Litigation' 'section 88 K Conveyancing Act' 'access to Neighbouring Land']
['civil Procedure' 'property Law' 'equity'] ['application to Re Open Hearing' 'easements' 'costs' 'finality of Litigation' 'section 88 K Conveyancing Act' 'access to Neighbouring Land']

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Procedural Posture

Civil / Post Judgment Motions, Costs, and Orders

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to re-open its case to adduce further evidence regarding easements for drainage and sewerage under s 88K of the Conveyancing Act 1919 (NSW)' 'Proper orders for easements relating to repairs and services under s 88K' "Appropriate order for costs based on parties' success on various claims"]

Ratio Decidendi

Leave to re-open was refused because the plaintiff’s failure to adduce sufficient evidence to support the s 88K easements for drainage and sewerage was attributable to its own conduct and oversight, not to any error by the court or other party. The new evidence was available or could have been procured with proper diligence prior to the hearing or before judgment. The discretion to re-open is only exercised in exceptional cases, which this was not; finality and efficient conduct of proceedings outweigh re-opening in these circumstances.

Court Disposition

Leave to re-open refused; costs apportioned.

Orders

  • ['Declaration of right of carriageway granted to plaintiff over Lot 2 in Deposited Plan 1052948 as specified.' 'Order for defendants to take all steps necessary to record easements in the Register.' "Easements for repairs, services, overhanging, and encroaching structures imposed pursuant to section 88K of the...