Maurizio v Arif

Legislation Cited: Civil Procedure Act 2005 (NSW) s 140
Encroachment of Buildings Act 1922 (NSW) s 10
Supreme Court Act 1970 (NSW) s 66

Cases Cited: Burgess v Benakis [2024] NSWSC 1436
Ex parte Delponte; Re Thiess Brothers Pty Ltd [1965] NSWR 1468
Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924

Category: Procedural rulings

Parties: Eleonora Maurizio (First Plaintiffs)
Emmanuel Zouvelekis (Second Plaintiff)
Nilofar Arif (First Defendant)
Ahmad Fahim (Second Defendant)

Representation: Counsel:
J Whitaker (Plaintiffs)
Solicitors:
Pinwiset Legal (Plaintiffs)
Aquila Lawyers (Defendants)

File Number(s): 2024/418113

REVISED EX TEMPORE JUDGMENT

1. HIS HONOUR: This matter comes before me today pursuant to a summons filed on 11 November 2024 by the plaintiffs, seeking orders that the current District Court proceedings be transferred to the Supreme Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW) (“CPA”), consequential orders relating to pleadings, and other matters.

2. Mrs Whitaker of counsel appears for the plaintiffs on the application today. She mentions the appearance of the first defendant who consents to the orders sought. There was some uncertainty as to the position of the second defendant, as the second defendant appears to have previously consented to the orders, but the solicitors may have ceased to act between the consent and this application.

3. The matter was called outside the courtroom. There was no appearance for the second defendant. I am satisfied that the second defendant has received notice of the application. The solicitor for the plaintiff, Ms Pinwiset, wrote to the second defendant on 27 February 2026, referring to the nature of the application and the current hearing and seeking some indication as to the second defendant's position. The second defendant has chosen not to appear.

4. The matter has a rather protracted history. Essentially, this is a dispute between neighbouring landowners in North Ryde as to issues arising from the defendants’ use of their property. It seems that in November 2022, Ryde Council (“the Council”) issued a demolition works order to the first defendant in respect of an unauthorised retaining wall on the eastern boundary of the property.

5. For reasons which are unclear, on 6 March 2024, the Council rescinded the works order.

6. The plaintiffs maintain that the defendants are encroaching on their property and are taking this action for a number of reasons, including to remove the encroachment and to sue for damages for nuisance. The proceedings were commenced in the District Court in 2023. The motion to transfer was filed by the plaintiffs in November 2024. It is only just coming on for hearing. At least in part, the reason for that is that (I am told) the parties have been working very hard to resolve their differences. No doubt that is a sensible course, having regard to the costs which have or will be incurred by both parties in pursuing these proceedings firstly in the District Court and now in the Supreme Court.

7. Having said that, as yet, the matter has not yet resolved and thus, the plaintiffs are pursuing this application to transfer to the Supreme Court.

8. Mrs Whitaker submits that the reason that it is necessary that the matter be transferred to the Supreme Court is because, pursuant to an amended statement of claim which the plaintiffs were granted leave to file in the District Court and have actually filed, they seek orders that cannot be made by the District Court.

9. They include orders pursuant to s 66 of the Supreme Court Act 1970 (NSW), that the first defendant do certain things, such as to clear gutters and drains and or move blockages for the purposes of preventing water ingress onto their property. They also seek an order under s 10 of the Encroachment of Buildings Act 1922 (NSW) (“Encroachment of Buildings Act”) that the encroaching retaining wall be removed.

10. Mrs Whitaker submits that the District Court does not have power to make these orders and it is thus necessary to transfer the proceedings to this Court.

11. As set out in s 140 of the CPA, this Court may of its own motion on an application by a party in proceedings before the District Court order that the proceedings be transferred to the Supreme Court. The power of the Court is discretionary. The exercise of the discretion depends on the particular circumstances of the case and whether it is appropriate in all those circumstances to transfer the matter.

12. The usual approach is to consider whether there is sufficient cause for the transfer to be made: see Sanderson Motors Pty Ltd v Kirby [2000] NSWSC 924. One reason why the Court may agree to the transfer is the absence of jurisdiction of a lower Court: Ex parte Delponte; Re Thiess Brothers Pty Ltd [1965] NSWR 1468.

13. Leaving aside what might be viewed as the usual arguments as to the jurisdiction of the District Court, I am satisfied that it is appropriate that the proceedings be transferred to the Supreme Court. I have regard in particular to the provisions of the Encroachment of Buildings Act. Section 10 refers specifically to orders that the Supreme Court may make under that Act: see Burgess v Benakis [2024] NSWSC 1436.

14. In the circumstances, I am satisfied that order 1 sought in the summons should be made. Mrs Whitaker informs me that, despite the fact that the proceedings have been on foot since 2023, the parties have not yet served any evidence. That is somewhat of an unsatisfactory state of affairs but again, I understand that the parties have been working assiduously to try and resolve the matter.

15. Having said that, there must come a point when the parties need to get on with their case if the matter cannot be resolved. At the request of Mrs Whitaker, I will merely make orders dealing with the finalisation of the pleadings at this stage and then refer the matter to the Registrar. I would expect that on the next occasion, that is, when the matter comes back before the Registrar, if it has not been resolved, the Registrar will make orders for the service of evidence of both the plaintiffs and the defendants.

16. I make the following orders:

17. Order that the proceedings between the parties herein numbered 2023/218321 in the District Court of New South Wales, Sydney Registry, be removed into this Court pursuant to s 140 of the Civil Procedure Act 2005 (NSW);

18. Order the plaintiffs to file a document styled “Amended Statement of Claim”, such document being in the same form as that filed in the District Court (removing the word “draft” from the version filed in the District Court), by 13 March 2026;

19. Order the defendants to file defences to the amended statement of claim by 16 April 2026;

20. List the matter for directions before the registrar on 23 April 2026;

21. Costs are reserved.

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