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[2012] NSWSC 1461
defendant. Notice of Motion dismissed. The plaintiff must pay the defendant's costs. Exhibits to be returned. Court indicated contempt motion might be stood over to the trial and requested consideration of...
The plaintiffs sought to set aside an ex parte injunction obtained by the defendants on the basis of alleged non-disclosure and procedural defects. Windeyer AJ found no material non-disclosure, accepted that counsel is not obliged to lecture on the law in ex parte applications, noted the plaintiffs had avenues to address the lack of an undertaking and had consented to continuation on the return date, and dismissed the motion with costs to the defendant. The court suggested the contempt proceedings be stood over to the trial.
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1,957 words · generated 16/07/2026
This was a procedural application in the Equity Division of the Supreme Court of New South Wales. Ward J had, on 13 June 2012, made an ex parte injunctive order restraining the plaintiffs from carrying out building or construction works on the defendant's land (Lot 21 DP 4311, 83 Bay Street, Mosman) until 2 July 2012 ([1]–[2]). The background was that the plaintiffs, owners of a dominant tenement, obtained access to their building site via a right of carriageway over the defendant's land; they required a further Development Consent for certain works which would affect the area of that right of carriageway, and the defendant had not given the required consent ([3]–[5]).
No linked legislation citations have been extracted yet.
The plaintiffs were the applicants to set aside Ward J's ex parte order. Their grounds were procedural and focused on alleged non-disclosure to Ward J at the ex parte hearing, in particular, that the judge had not been taken to relevant principles of easement law and to the proposition that a dominant owner may carry out certain works on a right of way without consent; and that the order was made without the ordinary undertaking as to damages ([11]–[15]). The defendants had also commenced contempt proceedings alleging breach of the injunction; that litigation provided the immediate impetus for the plaintiffs' Notice of Motion ([13]).
Windeyer AJ heard the motion on 27 November 2012 and dismissed it. The judge found the plaintiffs had not established that matters which ought to have been put to Ward J, and which might have affected the decision, were omitted. The court also rejected the proposition that counsel on an ex parte application was obliged to give extended expositions of the law, and noted the conventional remedies available for challenging the absence of an undertaking to damages or for other procedural complaints, typically an application on the return date or appellate review ([12], [15]–[19]). The plaintiffs were ordered to pay the defendant's costs; exhibits were to be returned; and Windeyer AJ suggested the contempt motion be stood over to the trial, with a view to concentrating on bringing the substantive proceedings on efficiently ([19]–[20]).
The court's decision rests on several connected propositions expressed by Windeyer AJ.
Materiality threshold for setting aside ex parte orders. Windeyer AJ emphasised that for an ex parte order to be set aside on grounds of non-disclosure, it is not enough to show that some aspect of the applicant's case was omitted. The applicant must show that matters were not put which ought to have been put and which might have had an effect on the judge's decision to grant the injunction ([12], [19]). The judge concluded the plaintiffs had not made that showing.
Scope of counsel's duty on ex parte applications. The court held that counsel is not ordinarily required to mount detailed expositions of the law on ex parte applications; rather counsel's duty is to avoid misleading the judge as to matters or facts relevant to the claim for interlocutory relief. In the present case the judge was expected to know, within limits, the basic principles of easement law; the omission to cite particular cases about rights of the dominant and servient tenants did not amount to a material failure of duty ([17]).
Procedural remedies and the undertaking to damages. Windeyer AJ accepted that it is unusual to grant interlocutory injunctions without an undertaking as to damages but noted the ex parte order had expressly been stood over to 2 July 2012 with liberty to apply, and that the ordinary remedy if one wishes to challenge the absence of an undertaking is to apply to the Court of Appeal or to another judge on the return date. The plaintiffs had that route open and, in fact, orders were continued by consent before White J on 2 July; their subsequent position did not justify setting aside the order ([14]–[16]).
Binding effect of consent. The court emphasised that where parties consent to continuation of interlocutory orders, they will usually be bound by that consent unless very unusual circumstances exist; no such circumstances were shown here ([16], [18]).
Because these conclusions were reached, the alleged non-disclosure and procedural irregularity did not establish a basis to set aside the ex parte order: the motion was dismissed and costs were awarded to the defendant ([19]).
The judgment is principally an application of settled interlocutory and procedural principles rather than a statement of new doctrine. The aspects affirmed in the decision are:
The judgment neither purports to alter the settled doctrines of the duty of full and frank disclosure nor to create novel categories of procedural relief. Rather, Windeyer AJ applied established thresholds and insisted on pragmatism: where the return date and liberty to apply had been provided and the parties later consented to continuation, the proper course is to resolve substantive disputes rather than reopen interim orders on technicalities ([14]–[18], [20]).
"It is fair to say that I think this is a somewhat technical matter. The only reason for bringing this Motion to set aside the orders is that the defendant has alleged breach of the injunction and has taken proceedings for contempt of Court." ([13])
Plain English: The motion is largely technical and was started because the defendant began contempt proceedings after claiming the plaintiffs breached the injunction.
"it is highly unusual to grant an interlocutory injunction unless there is an undertaking for damages given" ([15])
Plain English: Normally, the court requires the party seeking a temporary injunction to promise to pay damages if the injunction turns out to have been wrong.
"I remain of the view it is not the duty of counsel to give expositions of the law on these applications. It is of course important not to mislead the judge as to matters or facts relevant to the claim for injunction but I do not consider there was any failure as to duty here." ([17])
Plain English: Lawyers do not have to teach the judge the relevant law in an ex parte hearing; they must not mislead the judge, and in this case they did not.
"I have come to the view that the plaintiff has not established that matters were not put to her Honour which ought to have been put which might have had an effect on her decision to grant the injunction. In those circumstances, the Notice of Motion is dismissed." ([19])
Plain English: The plaintiffs failed to show that important information was hidden from Ward J that could have changed her mind, so the application to overturn the injunction fails.
"This Motion should have been heard at the same time as the Motion for contempt. I am inclined to the view that it is in the interests of the parties to concentrate on getting the substantive proceedings heard..." ([20])
Plain English: The judge considers it more efficient and fair to deal with the main dispute at trial rather than fight over interim procedural matters now.
This decision is directly relevant where an applicant seeks to set aside an ex parte interlocutory order on grounds of non-disclosure or procedural irregularity. The following fact patterns are particularly resonant:
If these elements are present, practitioners should note the difficulty of persuading a court to set aside an ex parte order unless they can point to omissions that were both material and likely to have affected the initial discretionary decision.
The judgment itself does not catalogue or rely upon later decisions, nor does it report subsequent appellate treatment. The decision is rooted in the established expectations of duty and procedure for ex parte applications and return dates. Because this deep dive must not invent or assert post-2012 treatments that are not present in the source material, it is only possible to note that:
For how later courts have treated this specific decision, and whether it has been cited or distinguished, users should consult an updated citator service (such as AustLII or commercial citators) for authorities referring to Peter Dimitri Papas v Warwick Sutton Grave [2012] NSWSC 1461.
The judgment leaves some issues open or as matters for the substantive hearing:
Whether the plaintiffs' subsequent conduct constituted contempt or an abuse of process. Windeyer AJ noted there are differing views and did not decide that question on the motion; it remains for the substantive proceedings or the contempt hearing ([9], [20]).
The exact limits of the duty to present legal authority on ex parte applications. Windeyer AJ framed the duty narrowly in this context, not to mislead and not to be obliged to provide full exposition, but did not attempt to define strict boundaries for every conceivable factual context. That leaves room for argument in more marginal cases where non-disclosure of legal propositions might be material ([17]).
The circumstances that would qualify as 'very unusual' to allow a party to avoid being bound by consent to continuation of orders. Windeyer AJ applied the ordinary rule but did not enumerate what would meet that high threshold ([16], [18]).
The interplay between the need for an undertaking as to damages and equity's discretion in categories of cases where the undertaking might be dispensed with. Windeyer AJ accepted there may be a particular class of cases where not requiring an undertaking is defensible but did not fully delineate that class here ([15]).
Practitioners confronting similar scenarios should therefore prepare to demonstrate, with precision, any omission that was both material and likely to have altered the ex parte judge's exercise of discretion; where possible they should also address these questions in fuller submissions on the return date or by timely appeal rather than by separate post facto motions to set aside interim orders.
EX TEMPORE Judgment 1HIS HONOUR: This is an application to set aside an ex parte injunctive order made by Ward J on 13 June 2012. 2The order was that the plaintiffs be restrained by themselves, their employees or contractors from undertaking any building or construction works in or on the defendant's land, being the land lot 21 in Deposited Plan 4311 known as 83 Bay Street, Mosman. The order was expressed to operate up to 2 July 2012. 3As I understand the evidence that has been put before me, the plaintiffs obtain access to their property upon which they are constructing a new dwelling by means of a right of carriageway over land of the defendant. 4To do the work which was required for their new building the plaintiffs obtained a Development Consent which does not concern what is happening here, but to do some further work, including work on the area of the right of carriage way, it is accepted that they need to obtain an additional Development Consent. As the land upon which the work is intended to be carried out, at least in part, is the land of the defendant, subject to the right of way in favour of the plaintiffs, it is necessary to have the Development Application consented to by the defendant owner of the servient tenant. 5The required consent has not been given. Under the Further Amended Statement of Claim filed on 11 May 2012 the relief sought is an order that the defendant sign a statement to the effect they consent to the lodging of the relevant Development Application, to make alterations and improvements to the driveway. 6It is not for me to decide whether or not the defendants are bound to sign that application. There may be some reason why they are not bound to do so although, as I understand the cases, there seems to me to be little doubt about it. In any event, on the application before her Honour Justice Ward, it was put that the plaintiffs, after the proceedings had been commenced, were continuing to do work on the right of carriageway. It was to stop the continuance of any such work that the application was made ex parte before her Honour. 7It was put by counsel for the defendant on the application to her Honour that there was a factual contest between the parties as to whether or not the work said to be required was reasonable or necessary. Whether that is an issue which is properly to be determined in proceedings, to require signature to a development application, is not something which I need decide. It seems rather to be something that might go to the reasonable use of the right of carriageway. 8What was put to her Honour was that once proceedings had been commenced of the nature of these proceedings, then the plaintiffs commencing those proceedings must await the outcome of those proceedings and not take the matter into their own hands and carry out work for which the signature on a Development Application was sought. 9Mr Kalyk, who appeared before her Honour, said that there were two schools of thought about this. One, that it might be contempt to continue to do work, and the other that it was an abuse of process of the court to act in that way. 10There is no doubt that her Honour understood what was being put to her, but in the application before me Mr Newlinds, senior counsel for the plaintiffs, says that her Honour was not fully appraised of the relevant law, and that it was not necessarily an abuse of process unless the action being taken was contradictory to the relief being sought, in that if the action was taken then there would be no point in the proceedings at all. 11The difficulty as is put by counsel in this matter is that the relief sought is to force the defendant to consent to a development application being lodged with council, whereas, a person or who has a right of carriageway is entitled, in any event, to carry out certain work on that way, and no consent of anybody in many cases is required for that. 12What really seems to be put is that there was a failure to disclose material matters to her Honour, in that there was a failure to take her to the necessary principles of law which, if gone into in detail, might have, at least, caused some doubt as to whether or not there was an abuse of process in this particular case. Her Honour had to decide whether there was a serious issue to be tried, and the question I think is whether or not what is said to be non-disclosure could in anyway be thought to have borne on a decision her Honour was required to make. 13It is fair to say that I think this is a somewhat technical matter. The only reason for bringing this Motion to set aside the orders is that the defendant has alleged breach of the injunction and has taken proceedings for contempt of Court. If the orders are set aside there can be no contempt because those orders would not exist. 14There are a few matters against the plaintiff in this. The first is that while the matter was heard ex parte on 13 June 2012, it was stood over until 2 July 2012 before the duty judge, the ex parte injunctive order expiring that day. In addition to that, the plaintiffs were given liberty to apply to vary the orders on one days notice, and because there had been no undertaking as to damages given, to make an application for the provision of the usual undertaking as to damages. 15So far as the undertaking as to damages is concerned, there has been considerable argument before me on that matter. It does not seem to me to be a matter which a judge at the same level as the judge who made the order should embark upon. It is accepted, of course, that it is highly unusual to grant an interlocutory injunction unless there is an undertaking for damages given, and it seems to me that the reasons put before her Honour for not requiring an undertaking in this case may not necessarily have been very cogent, but the simple fact is that order was made, and if the plaintiffs wished to do anything about it then they have had plenty of opportunity before the contempt proceedings were brought rather than because they were brought. The position, I think, is that while her Honour realised that it would be highly unusual not to require an undertaking, she considered that the facts may have been within a particular class, if there were an abuse of process by way of self help. It does not seem to me that I should revisit that. I am of the view, as a general matter, that if an injunctive order is made without an undertaking as to damages and a party wishes to complain about that then the ordinary means of doing so is to apply to the Court of Appeal. In this particular case that was not necessary in view of the lease given so the proper complaint was to another judge, in this case White J, on the return date of the Summons. 16The orders were continued by consent by White J on 2 July 2012. That may have been because the plaintiffs had done all the work which they wished to do at that stage in respect of the right of carriageway, but I do not accept that they ever said that they had done all the work which they intended to do. The works which they had done at that stage allowed them, as I understand it, to continue with their own development on their own land. 17There have been some other matters put to me about the duty to disclose and that duty not having properly been complied with. One of those was, as I understand it, a failure to put to the judge the basic propositions of law as to entitlement of the owner of the dominant tenement to do work on the area of a right of way. I do not think there is anything in this. A judge in this division must be expected to know, within limits, the law relating to easements, and I do not think that real complaint can be made about failure to take her Honour to particular cases which set out the rights of the owners of the dominant and servient tenant in these matters. In my experience it is not done on ex parte applications. Nor do I think that there was a failure to disclose material matters in so far as the counsel for the defendant put to her Honour that there were only two choices in these matters; where self-help was exercised after proceedings for the same help were commenced. It is said that opinion varied as to whether such conduct was contempt of Court and abuse of process. Counsel for the plaintiff says that in putting it this way counsel misled her Honour as it was necessary to see whether the conduct complained of was conduct relevant to the relief sought. I remain of the view it is not the duty of counsel to give expositions of the law on these applications. It is of course important not to mislead the judge as to matters or facts relevant to the claim for injunction but I do not consider there was any failure as to duty here. 18The plaintiffs were perfectly happy to allow the orders to continue because they did not need to do any further work at that time and they had at that stage not been confronted with the proceedings for contempt. That changed once the Motion for contempt was filed, but that does not seem to me to vary the position. They did not need to consent on 2 July 2012 but unless there were very unusual circumstances they would be bound by their consent. No such circumstances have been shown to exist. 19I have come to the view that the plaintiff has not established that matters were not put to her Honour which ought to have been put which might have had an effect on her decision to grant the injunction. In those circumstances, the Notice of Motion is dismissed. The plaintiff is to pay the defendant's costs. The exhibits can be returned. 20This Motion should have been heard at the same time as the Motion for contempt. I am inclined to the view that it is in the interests of the parties to concentrate on getting the substantive proceedings heard and to that end I consider it might be appropriate to have the contempt motion stood over to the trial. Disputes between neighbours need to be disposed of quickly and preliminary skirmishes by motion avoided. I will ask the Chief Judge to consider listing the matter before her to consider appropriate directions to bring the matter on.
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: 29 November 2012
Notice of Motion dismissed. The plaintiff must pay the defendant's costs. Exhibits to be returned. Court indicated contempt motion might be stood over to the trial and requested consideration of directions to facilitate prompt hearing (see [19]–[20]).