Mourched v Transport for NSW [2020] NSWSC 1766 | Case summary

What happened

George Mourched and Anthony Mourched sought an easement over land owned by Transport Asset Holding Entity of New South Wales (TAHE). The proposed easement was a right of carriageway intended to provide access to the plaintiffs’ land at Leppington. Their existing pleading described a proposed car park for 259 vehicles associated with access to Leppington Train Station and referred to Development Application 2019/308/1. It also asserted that, without access from Bringelly Road or Ricard Road, the relevant land would have no street access or would be landlocked.

The plaintiffs applied for leave to file an amended statement of claim. This was their second amendment application. Their earlier proposed amendment had been refused by Darke J on 14 September 2020. In the application considered by Ward CJ in Eq, TAHE did not oppose changes reflecting the correct defendant and the discontinuance of Transport for NSW. It opposed the substantive pleading, arguing that the draft omitted material facts required for relief under s 88K of the Conveyancing Act 1919 (NSW).

The judge dealt with the application on the papers. The issue was not whether the easement should ultimately be imposed. It was whether the proposed pleading stated an arguable cause of action, with sufficient material facts to address the statutory conditions. The judge found the pleading adequate on the public-interest condition, but deficient as to compensation and attempts to obtain an easement. Leave to file that draft was refused. The plaintiffs were given an opportunity to serve a further proposed amended statement of claim by 16 December 2020. TAHE was to notify them by 4 pm on 17 December whether it opposed leave for that further draft. The notice of motion was stood over to 18 December 2020.

The decision was therefore procedural, not a final determination of whether the plaintiffs could obtain an easement. It also did not determine the amount or form of any compensation, the exact terms or route of the easement, or whether negotiations had in fact occurred.

Why the court decided this way

Section 88K(1) empowers the Court to impose an easement where it is reasonably necessary for the effective use or development of other land. Section 88K(2) states that an order may be made only if the Court is satisfied about three matters: that use of the benefiting land will not be inconsistent with the public interest; that the owner and relevant interest holders in the burdened land can be adequately compensated for loss or disadvantage; and that all reasonable attempts to obtain the easement, or one with the same effect, have been made unsuccessfully.

The judge treated those conditions as preconditions to the Court’s power, rather than as matters that might arise only after an applicant had established a right to an easement. Drawing on the approach in Vines v Djordevitch, the reasons emphasised that the statutory language and substance determine whether a condition is part of the factual basis that must be established. The judge concluded that an easement under s 88K is possible only if all the s 88K(2) matters are established to the Court’s satisfaction.

The function of a pleading was also central. The reasons relied on the principle that pleadings must state the material facts forming the cause of action and give the other party fair notice of the case it must meet. A pleading that simply asserts a desired outcome, without the facts supporting the relevant statutory conditions, may fail to disclose an arguable cause of action. Leave to amend should not be granted where the proposed amendment would be liable to be struck out.

The judge treated the public-interest condition differently from the other two disputed conditions. The draft set out the intended use as a 259-vehicle car park connected with the train station, identified a development application, and described the asserted access problem. The reasons considered those facts sufficient to identify the proposed land use and the basis on which the plaintiffs would contend that it was not inconsistent with the public interest. The judge also noted that any uncertainty about the relevant public interest could be clarified through particulars.

The compensation condition was not addressed in the proposed pleading. It did not state whether the plaintiffs alleged there would be no loss or disadvantage, identify any possible loss, or explain the factual basis for saying that any loss could be adequately compensated. The judge noted that the amount of compensation and how it might be provided could be matters for evidence, but the underlying material facts supporting the precondition still needed to be pleaded.

The reasonable-attempts condition was also missing. The draft referred to Rail Corporation of NSW refusing to enter certain agreements. But the reasons noted that Rail Corporation was not the current owner of the burdened land, and the pleading did not identify attempts to obtain an easement from TAHE or allege facts showing that all reasonable attempts had failed. The judge described the absence of those allegations as a gap in the pleading.

Before and after state of the law

The decision did not replace or overrule the authorities it discussed. It applied existing principles about pleading material facts, amendment applications and statutory conditions to a proposed claim under s 88K. The broader procedural principles included the requirement to give fair notice of the case to be met, reflected in Banque Commerciale SA (in Liq) v Akhil Holdings Ltd, and the approach to leave to amend under the Civil Procedure Act 2005 (NSW), including the consideration of justice and case-management concerns discussed in Aon Risk Services Australia Ltd v Australian National University.

The particular clarification made in this decision was how the judge understood s 88K(2) for pleading purposes. The conditions in paragraphs (a), (b) and (c) were treated as preconditions to the statutory power. Consequently, a plaintiff seeking an easement under s 88K needed to plead material facts supporting those conditions, not merely plead that an easement was reasonably necessary.

The decision also explained the distinct focus of the public-interest inquiry. It is whether use of the land benefiting from the easement would be inconsistent with the public interest, not whether the easement itself is affirmatively in the public interest. The reasons referred to authorities including Evans v Cornish Nominees Pty Ltd, City of Canterbury v Saad and Shi v ABI-K Pty Ltd when explaining that the proposed use of the applicant’s land is central to that inquiry.

The judgment did not determine the substantive meaning of adequate compensation in every s 88K case, prescribe a standard form of negotiation, or specify what evidence would ultimately prove the conditions. Its direct holding concerned what this proposed pleading needed to allege and what deficiencies made it liable to be struck out.

Key passages with plain-English translation

The supplied judgment text has no continuous paragraph numbering. The passages below are therefore identified by their subject in the reasons rather than by paragraph number.

The statutory preconditions. Ward CJ in Eq stated that an easement is possible only if all the matters in s 88K(2) are established to the Court’s satisfaction. In plain English, showing that an easement is reasonably necessary does not by itself complete the statutory case. The applicant must also establish the public-interest, compensation and reasonable-attempts conditions.

What must be pleaded about public interest. The judge said that material facts should concern the proposed use of the land and any relevant development consents or authorisations. In plain English, a pleading should tell the defendant what use is proposed and identify the factual basis for saying that the use will not conflict with the public interest. The judge considered the proposed commuter car park, development application and alleged access problem sufficient at this stage.

Compensation. The reasons stated that the pleading failed to address the material facts supporting the proposition that the second defendant could be adequately compensated. In plain English, it was not enough to ask for an easement without saying anything about the possible consequences for the landowner or why compensation could adequately address them. The judge’s example of an unconditional and irrevocable undertaking was illustrative, not a finding that such an undertaking existed or would necessarily satisfy the statutory test.

Reasonable attempts. The judge said that attempts to negotiate an easement, including particulars of what attempts had been made, would need to be pleaded. In plain English, the draft needed to identify the efforts relied on and explain how they were unsuccessful. The reference to a refusal by a former landowning entity did not, by itself, state attempts to obtain an easement from TAHE.

The result on leave. The judge refused leave because the proposed pleading would be liable to be struck out, while allowing a further proposed pleading to be served if the plaintiffs wished to pursue the application. In plain English, the draft was not approved, but the underlying application was not finally dismissed at that point.

What fact patterns trigger this precedent

The decision is most directly relevant where a party seeks a court-imposed easement under s 88K and applies to amend a pleading that does not clearly address the statutory conditions. Its practical significance arises where the proposed claim identifies a desired access route or development but does not set out facts supporting compensation for the burdened owner or unsuccessful reasonable attempts to obtain an easement.

It may also be relevant when considering whether a pleading gives fair notice of a claim based on a statutory power. The decision links the need for material facts to the nature of the statutory preconditions: if a matter must be established before the Court can exercise its power, the pleading must identify the factual basis on which the applicant says that matter is satisfied.

The decision should not be read as deciding that every s 88K pleading must set out evidence in detail. The judge distinguished between pleading the material facts and proving them at a later evidentiary stage. For example, the amount of compensation and the manner in which it would be provided could be matters for evidence, but a pleading still needed to address the underlying proposition that adequate compensation was possible.

The public-interest discussion may be relevant where the proposed benefiting use is permissible or subject to a development application. The reasons state that the focus is the proposed use of the applicant’s land. They do not say that a development application or consent automatically satisfies the condition in every case. The application of the test depends on the facts.

How later courts have treated it

The supplied judgment provides no information about how later courts treated Mourched v Transport for NSW. It is therefore not possible, on this source alone, to say whether a later court followed, distinguished, confined or reconsidered its reasoning.

The judgment itself relied on earlier authorities. For the general approach to conditions precedent and the burden of proof, it discussed Vines v Djordevitch. For the onus in an s 88K application, it referred to Tenacity Investments v Ku-Ring-Gai Council and 117 York St. Pty Ltd v Proprietors of Strata Plan 16123. For the public-interest condition, it discussed authorities including D & D Investments Pty Ltd v Yiasemides, Bloom v Lepre, City of Canterbury v Saad, Evans v Cornish Nominees Pty Ltd and Shi v ABI-K Pty Ltd. For reasonable attempts to obtain an easement, it referred to Coles Myer NSW Ltd v Dymocks Book Arcade Ltd, Tregoyd Gardens Pty Ltd v Jervis and Smith v Woodley-Beattie.

Those citations show the doctrinal sources used by Ward CJ in Eq, not how subsequent courts have treated this judgment. Any account of later treatment would require later decisions not included in the supplied material.

Still-open questions

The decision left the substantive application unresolved. It did not determine whether the plaintiffs had in fact made all reasonable attempts to obtain an easement, whether future negotiations were extremely unlikely to succeed, or whether any proposed route or terms of access would be acceptable.

It also did not decide whether TAHE would suffer loss or disadvantage from the easement, what that loss might be, or whether compensation would be adequate. The judge observed that the answer could depend on the precise extent and terms of the right of carriageway, including the part of TAHE’s land over which it was sought. Those matters would depend on the further pleading and, if the claim proceeded, the relevant evidence.

The judgment did not decide the final public-interest question either. It held that the pleaded facts were sufficient to identify the proposed use and the basis for the plaintiffs’ contention at the pleading stage. Whether the use would, on the evidence, be inconsistent with the public interest remained open.

Finally, the procedural orders contemplated another proposed pleading and a later consideration of whether leave should be granted. The supplied text does not record what happened after the matter was stood over to 18 December 2020. It therefore cannot establish whether a further pleading was served, whether leave was later granted, or how the proceeding ultimately concluded.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.

Judgment (9 paragraphs)

[1]

Background

The plaintiffs commenced proceedings in this Court by statement of claim filed on 14 May 2020, seeking the imposition of a right of carriageway burdening certain land in Leppington, New South Wales (the Land), pursuant to s 88K of the Conveyancing Act 1919 (NSW) (Conveyancing Act).
By reference to the existing pleading, it appears that the plaintiffs wish to develop property held by them in Leppington as a car park for vehicles in respect of access to Leppington Train Station commuter car park (see [4] and [7] of the statement of claim) and Roads and Maritime Services has advised that: both construction access and future access to the proposed car park is to be through the existing station car park access; construction vehicles are to be contained wholly within the site; and no construction zone will be permitted on Bringelly Road or Ricard Road Leppington (at [5]). The plaintiffs have identified the proposed use of the land at [7] as: "a car park for a total of 259 vehicles in respect of access to Leppington Train Station commuter car park being the Defendants [sic] Property, Development Application no 2019/308/1…".
The owner of the Land over which the easement is sought is TAHE, the statutory successor to Rail Corporation of NSW (Railcorp). Prior to the establishment of TAHE on 1 July 2020, Railcorp was the owner of the land (though it was not named as the defendant to the statement of claim).
This is the plaintiffs' second application for leave to file an amended statement of claim. The first application, filed on 26 June 2020, was refused by Darke J on 14 September 2020. At that time his Honour's Associate provided the parties with his Honour's brief reasons for refusing leave for the filing of the amended statement of claim in the proposed form. Those reasons have not be published more broadly. Relevantly, those reasons were that: Order 1 of the proposed relief seeks an order that Transport for NSW issue a direction to TAHE to provide a right of carriageway over the land pursuant to s 3G(1) of the Transport Administration Act 1988 (NSW). The parties are in dispute as to whether Transport for NSW retains a power to give a direction to TAHE, as s 3G(1)(a) was repealed on 1 July 2020 by the Transport Administration Amendment (Transport Entities) Act 2017 (NSW). However, it seems to me that even if Transport for NSW retains the statutory power, an order made in the terms of proposed Order 1 would lack utility, as TAHE has indicated, as it must, that it would comply with any order of the Court for the imposition of the easement sought. Furthermore, the proposed amendments to paragraphs 2, 3, 7-10 and 12 of the Statement of Claim do not disclose any reasonable cause of action against the first or second defendant and would be liable to be struck out pursuant to r. 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). The paragraphs perhaps suggest that by making a certain representation the first defendant engaged in some form of wrongful conduct, and that the plaintiffs will thereby suffer loss and damage. However, the material facts pleaded are essentially confined to the making of the representation. The proposed pleadings do not go on to disclose any causes of action based on the making of the representation. Moreover, damages are not claimed.
His Honour indicated that the plaintiffs should be given the opportunity to decide whether to proceed or to discontinue against the first defendant (TNSW) and to produce a new proposed pleading which named TAHE as the second defendant.
The plaintiffs served a proposed amended pleading on the defendants on 2 October 2020. As noted above, TAHE opposes the grant of leave for the filing of this pleading. It is submitted that the plaintiffs have failed to plead substantive prerequisites to relief under s 88K(2) of the Conveyancing Act and that therefore the pleading discloses no reasonable cause of action. As noted, the defendants do not oppose the removal of TNSW as a party to the proceedings. However, they note that the pleading should be amended to reflect the correct legal name of the second defendant (i.e., Transport Asset Holding Entity of New South Wales), and not Transport Administration Holding Entity of New South Wales as the proposed pleading currently stands. It is submitted (and I accept) that an order should be made formally requiring the plaintiffs to pay TNSW's costs as part of the disposition of the present application.

[2]

Plaintiffs' submissions

The plaintiffs maintain that the proposed amended statement of claim satisfies the pleading requirements in that it contains allegations of fact complying with rr 14.6-14.9 and 14.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
The plaintiffs contend that the preconditions to the relief which is claimed under s 88K of the Conveyancing Act (see s 88K(2) of the Conveyancing Act) are identified for relevant purposes in the proposed pleading at [7], [8], [9], [11] and [12] (where twice appearing). As to the extent and wording of any relevant easement, the plaintiffs say that that is a matter to be determined according to the respective requirements and specific issues associated with the car park over which the easement is sought.
The plaintiffs argue that it is not necessary to plead the specific paragraphs of s 88K(2) of the Conveyancing Act where the underlying facts giving rise to relief have been pleaded.

[3]

Defendant's submissions

As noted, there is no opposition to the amendments relating to the removal of TNSW as a party to the proceedings. Rather, the opposition is to the amendments made to the substantive pleading, most particularly the amendments in [10], 11, 11, 12 and 12 of the proposed pleading. The fundamental basis for objection is that the amended pleading does not disclose all of the material facts necessary to establish the elements of the cause of action that must be pleaded.
TAHE accepts that it is not necessary in a pleading to recite statutory provisions. However, it contends that the underlying facts giving rise to the relief claimed have not been properly pleaded in the amended statement of claim. TAHE cites in this regard the High Court decision in Vines v Djordevitch (1955) 91 CLR 512 (Vines v Djordevitch) at 519-520 for the proposition that, where factual matters operate as preconditions to a cause of action succeeding, the necessary facts to establish them must be pleaded.
In Vines v Djordevitch, where a provision in the Motor Car Act 1951 (Vic) precluded judgment from being obtained in a motor accident case unless the relevant statutory notice of intention to make a claim had been given in accordance with the statute, it was held, at 521, that the notice requirement was a precondition to the cause of action arising, the onus of proving which fell on the plaintiff.
TAHE submits that the matters in s 88K(2) of the Conveyancing Act similarly operate as preconditions to the cause of action succeeding and TAHE argues that the necessary facts to establish them should be pleaded.
In particular, TAHE says that the proposed amended pleading asserts no fact matter or circumstance that would, if established, satisfy the requirements of any of s 88K(2)(a), (b) or (c) (see below).
TAHE thus contends that: the matters contained in s 88K(2) contain substantive prerequisites to the grant of relief under s 88K; the onus of proving the matters contained in s 88K(2) falls on the plaintiffs; the failure of the amended statement of claim to plead the facts giving rise to the matters in s 88K(2) precludes any relevant issue being joined on matters that are required to be proved in order for the grant of relief; and as a consequence of the failure to plead these facts, the amended statement of claim does not disclose a cause of action under s 88K of the Conveyancing Act.

[4]

Proposed Amendments

Relevantly, what is proposed to be included in the amended statement of claim is as follows: 10 The Plaintiffs if unable to access Bringelly Road or Ricard Road Leppington will have no street access to enable use and occupation of the Plaintiff's [sic] Property the subject of the Development Application. 11 (a) they will be unable to proceed with the Development Application referred to in paragraph 7 above; and or (b) the portion the subject of the Development Application referred to in paragraph 7 above would be landlocked. 12 Rail Corporation of New South Wales has advised that it refused to enter into any agreements in relation to a proposed commuter car park lease of the property held by the Plaintiff's [sic] or the granting of access rights over the existing commuter car park. [Particulars omitted] 12 [sic] As a consequence of the foregoing: (a) in the absence of the ability to utilise the Defendant's Property for the purpose of access to the portion of the Plaintiff's [sic] Property the subject of the Development Application, the Plaintiffs will be unable to utilise that property; (b) it is reasonable for the Plaintiffs to be able to utilise the Defendants [sic] Property for the purpose of access to the portion of the Plaintiffs Property.

[5]

Relevant provisions

Section 88K of the Conveyancing Act relevantly provides that: 88K Power of Court to create easements (1) The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. (2) Such an order may be made only if the Court is satisfied that - (a) use of the land having the benefit of the easement will not be inconsistent with the public interest, and (b) the owner of the land to be burdened by the easement and each other person having an estate or interest in that land that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900 can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and (c) all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful.

[6]

Relevant Principles

It is well known that, in exercising the discretion to grant leave to amend, regard must be had both to the overriding purpose of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) and the UCPR; and to the dictates of justice (see ss 56, 58 of the Civil Procedure Act). One must consider the nature of the proposed amendment, its consequences for the other parties, and the expeditious conduct of the proceedings. All necessary amendments are to be made in order to enable the determination of the real issues raised in the proceedings (see s 64 of the Civil Procedure Act; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [14] and [71]; and the commentary in Ritchie's Uniform Civil Procedure Rules NSW, 64.5).
As to the exercise of the discretion, the application must be made for a proper purpose; the proposed amendments must be proper in substance and form; the amendment must not cause undue prejudice to the other party; and the amendment must be consistent with the dictates of justice (see Tildesley v Harper (1878) 10 Ch D 393 at 396-397; Cropper v Smith (1884) 26 Ch D 700 at 710, applied in Clough v Frog (1974) 4 ALR 615 at 618 per McTiernan ACJ, Menzies, Gibbs and Mason JJ; 48 ALJR 481; Shannon v Lee Chun (1912) 15 CLR 257; [1912] HCA 52; Horton v Jones (No 2) (1939) 39 SR (NSW) 305 at 309-301 per Jordan CJ; Longhurst-Saunders v Cooper (1956) 73 WN (NSW) 455; Ketteman v Hansel Properties Ltd [1987] 1 AC 189; [1988] 1 All ER 38 at 203 per Lord Keith; Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 106-7 per Waddell AJA, with whom Samuels and Meagher JJ agreed).
Leave will not be granted for an amendment which would be liable to be struck out or which does not disclose an arguable cause of action.
Further, it is relevant here to note that the function of pleadings is (as stated in Banque Commerciale SA (in Liq) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 per Mason CJ and Gaudron J at [18]): … to state with sufficient clarity the case that must be met … In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.
That passage was cited with approval by Ipp JA in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Market Ltd (2008) 73 NSWLR 653; [2008] NSWCA 206 at [422]. In Arthur Young v Tieco International (1999) 182 LSJS 367(which was approved by McDougall J at first instance in Ingot Equity Capital Markets Pty Ltd v Macquarie Equity Capital Investments Ltd [2004] NSWSC 1136 (Ingot) at [46]), Lander J said (at 370) that a Court ought to approach a consideration of the adequacy of a pleading by seeking to answer the ultimate question whether the pleading gives fair notice of the case to be made against the other party at trial, thus minimising the risk of injustice resulting from surprise.

[7]

Determination

The issue in the present case is whether the proposed amended pleading discloses a reasonable cause of action. As stated, the plaintiffs argue that the matters set out in s 88K(2) of the Conveyancing Act are preconditions to the cause of action succeeding, the onus of proving which falls on the plaintiff, and that the proposed amended statement of claim does not plead any fact that, if established, would satisfy the requirements of any of paragraphs s 88K(2)(a)-(c) of the Conveyancing Act.
The High Court in Vines v Djordjevitch discussed the "well understood" distinction between a proviso and an exception (at 519, citing Abbott J in Steel v Smith (1817) 1 B & Ald 94 at 99; 106 ER 35 at 37). The High Court in that case determined that, though the requirement of notice was framed as a proviso, which prima facie supported the view that the burden of proof lay with the defendant to establish non-compliance, the substance of the provision expressed a condition precedent to the cause of action, required to be fulfilled by all, and consequently the onus of proof lay with the plaintiff. The Court stated (at 519): In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications, exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally.
The onus of proof in an application under s 88K of the Conveyancing Act is broadly on the applicant (see Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27 at 84 per Pain J, citing 117 York St. Pty Ltd v Proprietors of Strata Plan 16123 (1998) 43 NSWLR 504 (117 York St)). An order may be made only if the Court is satisfied in all the circumstances of the matters in s 88K(2). In my view, these matters are indeed pre-conditions to the exercise of the power conferred by s 88K(1) (and hence required to be proved by the applicant for such an order). A right to an easement does not arise upon a finding that the easement is "reasonably necessary", only to be denied if matters in s 88K(2) are not satisfied (to use the terminology deployed in Vines v Djordjevitch at 519). Rather, the grant of an easement pursuant to s 88K is only possible if all matters under s 88K(2) are established to the Court's satisfaction (and it is only then that, subject to the Court's discretion, relief will be granted).

[8]

Orders

Accordingly, I order as follows: 1. Refuse leave for the filing of the proposed amended statement of claim. 2. Direct the plaintiffs, if they wish to pursue this application, to serve by 16 December 2020 a further proposed amended statement of claim which addresses the pleading issues set out in these reasons. 3. Direct the second defendant to notify the plaintiffs by 4pm on 17 December 2020 whether it opposes the grant of leave for the filing of that further proposed amended statement of claim. 4. Otherwise stand over the plaintiffs' notice of motion for directions in the Real Property List on 18 December 2020.
I have in mind that on 18 December 2020 either the further proposed amended pleading will be in a suitable form for leave to be granted for it to be filed and directions made for the further conduct of the matter or the notice of motion will simply be dismissed; and in either event that orders will be made to address the costs of the notice of motion.

[9]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2020

Motorist Association Ltd (2004) 51 ACSR 278; [2004] FCA 1393 Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Smith v Woodley-Beattie [2009] NSWSC 380 Steel v Smith (1817) 1 B & Ald 94 Tenacity Investments v Ku-Ring-Gai Council and Ors [2008] NSWLEC 27 Tildesley v Harper (1878) 10 Ch D 393 Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845 Vines v Djordevitch (1955) 91 CLR 512 Wilson v Forrester-Babcock (2000) 10 BPR 18,377; [2000] NSWSC 1208 Texts Cited: Ritchie's Uniform Civil Procedure NSW Category: Principal judgment Parties: George Mourched (First Plaintiff) Anthony Mourched (Second Plaintiff) Transport for New South Wales (First Defendant) Transport Asset Holding Entity of New South Wales (Second Defendant) Representation: Counsel: JT Johnson (Plaintiffs) M Astill (Defendants)

Mourched v Transport for NSW

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Cited legislation

Deep Dive

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Catchwords

Judgment (9 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (30)

AI Analysis