The Owners - Strata Plan No 1731 & Anor v Bailey & Ors

adley Rees Hogan (Plaintiffs) Szabo & Associates (First Defendant) File Number(s): 2013/386224

Judgment 1The First Plaintiff, The Owners - Strata Plan 1731 ("Owners Corporation"), is the owners corporation of a substantial block of 79 units situated in Tamarama, New South Wales, known as "Glenview Court". The Second Plaintiff, Mr Robert Linke is, or claims to be, authorised by the Owners Corporation to conduct the proceedings on its behalf and also owns, together with his family, 13 of the 79 residential units in that block of units. 2The First Defendant, Mrs Pamela Bailey, is the proprietor, under the old system, of lots 1 and 2 in DP 1147729. The southern boundary of the property occupied by Glenview Court adjoins the northern boundary both of Mrs Bailey's land and of lot 12 in DP 1153358, as to which the Estate of Ellen Fletcher (who died on 4 April 1908) is the last old system proprietor ("Fletcher land"). A track, which is presently poorly maintained, passes through the Fletcher land by which persons resident in that block of units claim to have previously accessed Tamarama Park and, through Tamarama Park, Tamarama Beach. That path is presently blocked by a gate installed by Mrs Bailey. Alternative road access is available, although it appears that access by road would take longer than access through Tamarama Park. 3Mrs Bailey has made a primary application to have her land consolidated with the Fletcher land and a small part of land, of which Waverley Council is the documentary owner, known as "Tamarama Park" ("Tamarama Park land"). That primary application was lodged with the Registrar-General under ss 14, 14A and 17 of the Real Property Act 1900 (NSW). Section 14 of the Real Property Act deals with applications to bring land under the Real Property Act, s 14A with consolidation with adjoining land and s 17 with the creation of a folio for land that is the subject of a primary application. It is well established that a person may bring an application under s 14 of the Real Property Act although he or she has acquired his or her estate in the land by adverse possession: see authorities cited in P Young et al, Annotated Conveyancing & Real Property Legislation 2010-2011 (2011, LexisNexis Butterworths) at [40360.5). 4By notice dated 10 October 2013, the Registrar-General advised the Owners Corporation, which was identified as a person with an interest in the application, that the Registrar-General: "intends to grant this application on the expiration of forty-two (42) days from the date of this notice, unless before the expiration of that time an objection is lodged in the form of a caveat pursuant to section 74B of the Real Property Act 1900. The land will otherwise be consolidated and comprise 1 ordinary folio of the register." 5The Owners Corporation lodged a caveat on 15 November 2013 and notice of that caveat was given to Mrs Bailey by the Registrar-General on 18 November 2013. The terms of that caveat stated that: "The Owners - Strata Plan No 1731 has enjoyed a pedestrian right of way and access from number 20 Illawong Avenue Tamarama to the Tamarama Park since the 1950s. The legal or equitable interest in the land the subject of the primary application claimed by the caveator is more fully set out in letter and attachments dated 1 July 2013 from Alistair Linke to Greg Stilianou of Land and Property Information New South Wales." There is obviously an issue as to whether the interest claimed was a caveatable interest and the Owners Corporation no longer presses a caveat on that basis. 6On or about 11 December 2013, Mrs Bailey served a lapsing notice on the Owners Corporation in respect of that caveat under s 74C of the Real Property Act, so that the caveat would lapse by 2 January 2014, unless the Owners Corporation commenced a proceeding to establish the caveatable interest claimed or obtained an order from the Court extending the operation of the caveat by that date. 7The Plaintiffs filed and served a Summons commencing these proceedings on 24 December 2013, which sought a declaration that Mrs Bailey does not have title by way of possession adverse to Waverley Council in respect the Tamarama Park land and adverse to Ms Ellen Fletcher (deceased) in respect of the Fletcher land. The Plaintiffs also seek an order under s 65 of the Supreme Court Act 1970 (NSW) restraining the Registrar-General of New South Wales (which has filed a submitting appearance in the proceedings) from granting a primary application for unqualified title to that land to be brought under the provisions of the Real Property Act pursuant to s 14 of the Act. Alternatively, the Plaintiffs claim an order imposing an easement over part of the land for the benefit of the Owners Corporation. 8On 31 December 2013, without admission of liability by the Defendants, and by consent of the parties other than the Registrar-General which took a neutral position, Rothman J restrained the Registrar-General from granting the primary application lodged by Mrs Bailey until the hearing and determination of a notice of motion filed by the Plaintiffs on 7 February 2014. On 7 February 2014, Ball J ordered that that interlocutory injunction should continue until further order. 9In separate proceedings 2013/386046, Waverley Council seeks a declaration that it is the owner of the Tamarama Park land and alternatively a declaration that Mrs Bailey is not entitled to that land by adverse possession to Waverley Council. On 7 February 2014, Ball J also made orders that the hearing of the proceedings brought by the Owners Corporation and Mr Linke and the proceedings brought by Waverley Council be heard together and that the evidence in one be evidence in the other. 10By Amended Notice of Motion dated 13 June 2014, Mrs Bailey seeks the following orders: "1. Order pursuant to Part 13.4(1)(a) of the [Uniform Civil Procedure] Rules that the First Plaintiff's claim in prayers 1 and 2 in its Summons filed on 24 December 2013 be struck out being frivolous or vexatious by reason of their failure to lodge with the [Registrar-General] a caveat under section 74B(1) of the Real Property Act 1900 ("the Act") within 42 days from 4 October 2013 the date of the section 12A Notice referred to in prayer 2(a) of the Summons, [the Owners Corporation's] right to object to the [Registrar-General] granting of the primary application PA 83046 lapsed. 2. In the alternative, order pursuant to [UCPR] Part 13.4(1)(a) by reason of neither of the Plaintiffs having a legal or equitable estate or interest in the land which is the subject of the primary application for the purposes of s 74B(1) of the Act the plaintiffs' claims in prayers 1 and 2 be struck out being frivolous or vexatious. 3. Order pursuant to [UCPR] Part 13.4(1)(a) that prayer 3 be struck out being frivolous or vexatious for the reason that neither plaintiff has demonstrated in paragraphs 46 to 49 in [Mr Linke's] affidavit sworn on 24 December 2013 that the easement is reasonably necessary for either the effective use or any development of [the Owners Corporation's] land for the purpose of s 88K(1) of the Conveyancing Act 1919. 4. In addition, order pursuant to [UCPR] Part 13.4(1)(c) the Plaintiffs' Summons be struck out as constituting an abuse of process for the reasons set out in [Mrs Bailey's] submissions dated 30 May 2014." 11The first three orders set out above were amended on 13 June to identify that relief was sought under r 13.4(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") and no objection was taken by the Owners Corporation and Mr Linke to that amendment. That rule provides that if, in any proceedings, it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in them, the proceedings are frivolous or vexatious, the Court may order that the proceedings be dismissed generally or in relation to that claim. 12The fourth paragraph was introduced in an Amended Notice of Motion on 13 June 2014 and the Plaintiffs objected to leave to amend to introduce that paragraph. That paragraph relies on UCPR r 13.4(1)(c) which applies where proceedings are an abuse of process of the Court. I reserved the question whether leave should be granted to introduce that paragraph to be dealt with having regard to the substantive issues addressed in this judgment. In the event, Mr Van Aalst, who appears for Mrs Bailey, accepted in oral submissions that the outcome in respect of that paragraph of the relief sought would depend upon the outcome in respect of the previous three paragraphs of the relief sought. Scope of UCPR r 13.4 13As I noted above, UCPR r 13.4 relevantly provides that if, in any proceedings, it appears to the Court that the proceedings generally or any claim for relief in them are frivolous or vexatious, or the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be dismissed generally or in relation to that claim. The Court's power to dismiss proceedings under this rule is exercised with caution but may be exercised where a plaintiff's case is so weak that it would be futile to permit the proceedings to go to trial: see Ritchie's Uniform Civil Procedure NSW at [13.4.15]. 14The relevant principles have been identified in the case law. In Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 99-100, Higgins J observed that the power to strike out a claim: "... has been held not to apply except in plain or obvious cases; and if there is a point of law that requires any serious discussion, it should be set down for argument: Hubbuck v Wilkinson. The pleading must be "obviously frivolous or vexatious, or obviously unsustainable," if it is to be struck out (per Lindley LJ in Attorney General of the Duchy of Lancaster v London and North Western Railway Co). The pleading must be "so clearly frivolous that to put it forward would be an abuse of the process of the Court": Young v Holloway." 15In Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713, the High Court exercised the power to summarily dispose of proceedings. However, the exceptional character of the jurisdiction to do so was emphasised by Sir Owen Dixon who observed that (at 720): "It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. But the Court is not concluded by the manner in which the litigant formulates his case in his pleadings. It may consider the undisputed facts. Further, it is not limited to cases where there is no dispute of fact." 16Similarly, in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 944-945, Cross J observed that "the fundamental principle is that prima facie a plaintiff is entitled to have his case come to trial; and applications to deprive him of that right will succeed only in the clearest of cases" and that "fatal defects in the plaintiff's case must be very clear before the court will intervene in this fashion". In Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607, after undertaking a comprehensive review of the case law, Rothman J observed that the Court has an inherent jurisdiction, described in the rule, to strike out a plaintiffs' case because it is so weak and/or because it depends upon facts, which, on the plaintiffs' case, cannot be proven, but observed (at [29]) that the Court would take that course "only in exceptional circumstances and only where it came to the view that to proceed further would be futile." 17The Plaintiffs draw attention to the authorities in respect of the test to be applied for an application for summary dismissal, and particularly refer to the observations of the plurality of the High Court in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57] that: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." (footnote omitted) That formulation has been adopted in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24] and Shaw v New South Wales [2012] NSWCA 102 at [30]. In exercising the Court's power to strike out proceedings, the Court must also give effect to the overriding purpose stated in s 56(1) of the Civil Procedure Act 2005 (NSW), namely "to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings". Section 58(1) requires the Court to act in accordance with the dictates of justice, and s 58(2) requires that the overriding purpose specified in s 56(1) be taken into account: Shaw v New South Wales above at [128]ff. The first paragraph of Mrs Bailey's motion 18As noted above, the first paragraph of Mrs Bailey's motion seeks an order that: "Order pursuant to Part 13.4(1)(a) of the [Uniform Civil Procedure] Rules that the First Plaintiff's claim in prayers 1 and 2 in its Summons filed on 24 December 2013 be struck out being frivolous or vexatious by reason of their failure to lodge with the [Registrar-General] a caveat under section 74B(1) of the Real Property Act 1900 ("the Act") within 42 days from 4 October 2013 the date of the section 12A Notice referred to in prayer 2(a) of the Summons, [the Owners Corporation's] right to object to the [Registrar-General] granting of the primary application PA 83046 lapsed." 19That paragraph depends upon the claim that the Owners Corporation did not lodge a caveat under s 74B of the Real Property Act within 42 days from 4 October 2013, the date on which the Registrar-General issued a notice under s 12A of the Real Property Act. I have referred above to the terms of the notice dated 10 October 2013 given by the Registrar-General. That notice did not expressly recognise the possibility - which is recognised by s 12A of the Real Property Act, to which I will refer below - that the Court might make an order restraining the Registrar-General from granting the primary application, and also did not expressly recognise the powers conferred on the Court to do so under ss 65 and 66 of the Supreme Court Act. However, there can be no suggestion that the Registrar-General, by the terms of that notice, could exclude the Court's powers to make such orders. 20Section 12A of the Real Property Act in turn provides that the Registrar-General may, before taking any action that alters the register, give notice of the proposed action to any person that the Registrar-General considers should be notified of it. Section 12A(2) in turn provides that: "Where the Registrar-General has given notice pursuant to the powers conferred upon the Registrar-General by [s 12A(1)], the Registrar-General may refuse to take the action until after the expiration of a period specified in the notice and the Registrar-General may proceed to take the action at or after the expiration of the period so specified unless the Registrar-General is first served with, or with written notice of, an order of the Supreme Court restraining the Registrar-General from so doing." It will be immediately noted that s 12A(2) merely provides a permission to the Registrar-General to proceed to take the relevant action (in this instance, registering the dealing) after the expiry of the period specified in the notice, rather than requiring it to do so, and is in any event subject to the service of an order of this Court restraining the Registrar-General from so acting. Such an order was made by the Court and served on the Registrar-General, which has in turn submitted to any further orders that may be made by the Court in the proceedings. 21Mrs Bailey contends that the 42 day period specified in the Registrar-General's notice expired on either 15 or 16 November 2013 and the consequence of the expiration of that period was that the Registrar-General would grant Mrs Bailey's application on either of those dates. I noted above that the Owners Corporation in fact lodged a caveat on 15 November 2013 and notice of that caveat was given to Mrs Bailey by the Registrar-General on 18 November 2013. Mrs Bailey also relies on the fact that the Plaintiffs did not make an application to the Court for an extension of the time by which the caveat lapsed on either 15 or 16 January 2014. Section 74C(1) of the Real Property Act in turn provides that a caveat which has not otherwise ceased to have effect lapses on the expiration of three months after the date it was lodged, unless the caveator before the end of that period obtained from the Supreme Court an order extending its operation. The Owners Corporation did not make an application to the Court to seek to extend that caveat although they did, as noted above, make a successful application to the Court to enjoin the Registrar-General from granting the primary application. 22On one view, this ground of the Plaintiffs' application could be dealt with simply. The Registrar-General's notice was, at its highest, a notice of its intention to grant the application on the expiration of the 42 day period, unless a caveat was lodged. Such account was lodged under s 74B(1) of the Real Property Act, arguably within the 42 day period from 4 October 2013, although the Plaintiffs allowed that caveat to lapse after they had obtained an interlocutory injunction restraining the Registrar-General from granting the primary application. I should, however, address a more substantive issue that underlies the first paragraph of the Plaintiffs' motion and was addressed by the parties in submissions, whether the lodgement of a caveat under s 74B of the Real Property Act is the exclusive means to avoid the grant of a primary application, ousting the Court's jurisdiction to make an order under s 65 of the Supreme Court Act or grant an injunction under s 66 of the Supreme Court Act. 23The Plaintiffs draw attention to the decision in Walsh v Alexander [1913] HCA 24; (1913) 16 CLR 293 where Barton ACJ at 303-304 and Isaacs J at 305-306 (with whom Gavin Duffy J agreed) held that the procedure for lodgement of a caveat did not exclude the Court's jurisdiction to grant other available remedies. The Plaintiffs also point to Public Trustee v Murray (1922) 22 SR (NSW) 555 at 558, where an interlocutory injunction was sought to restrain a defendant from proceeding with a primary application and Street CJ observed that the then sections providing for the lodgement of caveats was permissive and not mandatory and that those provisions did not, expressly or by necessary implication, exclude the Court's ordinary jurisdiction to protect rights of property. Mrs Bailey seeks to distinguish that decision on the basis that it turned on the position where a party had a caveatable interest which it had allowed to lapse. There is force in that distinction, since Street CJ there referred to the protection of rights of property which would ordinarily be sufficient to support a caveatable interest. However, the circumstances in which the courts have been prepared to grant injunctive relief, or at least recognise standing to seek such relief, have expanded since 1922 and his Honour's reasoning as to the structure of the legislative provisions permitting the lodgement of a caveat, and particularly their permissive character, is of general application. It might also be put that it would be less, not more likely, that the provisions dealing with the lodgement of a caveat would restrict the Court's power to grant injunctive or other relief where they were not in fact applicable. 24In Halaga Developments Pty Ltd v Grime (1986) 5 NSWLR 740, Waddell CJ Eq followed the decision in Public Trustee v Murray in holding that the procedure for lodgement of a caveat, which in that case had lapsed, did not exclude the Court's power to grant injunctive relief in respect of a primary application. The Plaintiffs accept that they no longer assert that they have a legal or equitable estate or interest in the land capable of supporting a caveat, and they recognise that their position is different from earlier cases in which parties who had a caveatable interest instead claimed injunctive relief. They point, however, to the proposition that the Court's jurisdiction to grant injunctive relief would not be ousted other than by express words or necessary implication of a statute, and contend that the Real Property Act does not contain either such express words or such an implication. 25As the Plaintiffs also point out, the provisions of the Real Property Act concerning caveats considered in earlier case law were repealed in 1986 and Pt 7A of the Real Property Act was added in their place, by Schedule 1(1) of the Real Property (Caveats) Amendment Act 1986. Section 74B of the Real Property Act continued to be expressed in permissive rather than imperative language following that amendment and Pt 7A of the Real Property Act does not expressly oust the Court's jurisdiction to grant injunctive relief. It also seems to me that there is no room for an implied ouster of that jurisdiction, since s 74R of the Real Property Act expressly provides that nothing in that Part shall be construed as preventing or restricting the caveator from applying for and obtaining injunctive relief to restrain the Registrar-General from bringing land under the provisions of the Real Property Act. 26Section 12A of the Real Property Act was inserted into the Act by the Real Property (Amendments) Bill 1970 (NSW) and the Explanatory Note to that Bill stated that one of its objects was to: "authorise the Registrar-General temporarily to delay registration of a dealing while he notifies a person whom he considers may contest the dealing that he proposes to register the dealing after the expiration of a specified period and to absolve him from liability for registering the dealing if he is not, before the expiration of that period, restrained by the Court from so doing." That section was in turn amended by Schedule 1 of the Real Property (Amendment) Act 1996 (NSW) to extend its application from a "dealing" to any action of the Registrar-General that altered the register. The legislature did not restrict the persons to whom notice should be given under s 12A of the Real Property Act to those who had a caveatable interest in the land, as it could readily have done if that was the legislative intent. 27Mr Van Aalst contended that the statutory purpose of s 12A of the Real Property Act was to create a bar against claims against the Registrar-General in respect of the relevant alteration to the register and the section plainly has that effect: Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; (2013) 247 CLR 149 at [26] - [29]. However, it seems to me that the legislative purpose of the section, indicated by its terms, was at least not inconsistent with preserving the right of an interested person to seek relief from the Court, having received notice of an application under that section. The fact that such relief is available, in a proper case, is a matter that supports the bar on claims against the Registrar-General, by allowing a party with an appropriate interest to restrain the alteration of the register, before it occurred, so that it has no need to claim damages against the Registrar-General after the event. The Plaintiffs contend, and I accept, that it is seriously arguable that that section does not indicate any intention to oust the Court's jurisdiction under ss 65-66 of the Supreme Court Act and, indeed, appears to be at least consistent with the existence of that jurisdiction. 28I do not consider that this matter rises to the level that it could be said that the Plaintiffs' claim to relief was unarguable by reason that they allowed the caveat they had lodged to lapse or that a determination of their claim on its merits would be futile for that reason. The second paragraph of Mrs Bailey's motion 29As I noted above, the second paragraph of Mrs Bailey's motion seeks an order that: "In the alternative, order pursuant to [UCPR] Part 13.4(1)(a) by reason of neither of the Plaintiffs having a legal or equitable estate or interest in the land which is the subject of the primary application for the purposes of s 74B(1) of the Act the plaintiffs' claims in prayers 1 and 2 be struck out being frivolous or vexatious." 30Mrs Bailey contends, in effect, that in order to lodge a proper caveat under s 74B of the Real Property Act to prevent the grant of a primary application, a person must claim and establish a legal or equitable estate or interest in the land that is the subject of the primary application. As I noted above, the Owners Corporation initially claimed a caveatable estate or interest that: "it enjoyed a pedestrian right of way and access from number 20 Illawong Road, Tamarama to Tamarama Park since 1950". Mrs Bailey responds that there is no substance in that assertion, because any owners or occupiers of lots in the relevant strata plan who accessed Tamarama Park by crossing any of the land the subject of the primary application were trespassers and that could not found any estate or interest in any part of the subject land. It is not necessary to address that contention since the Owners Corporation no longer seeks to claim a caveatable interest in the land. 31The fundamental premise of this aspect of Mrs Bailey's application is that the Plaintiffs can only establish a right to injunctive relief if they have a caveatable interest in the land. That premise is relied upon to support the conclusion that, since the Plaintiffs do not now claim such an interest, they cannot have a right to injunctive relief and their claim to it should be struck out. If that premise is not correct, then, notwithstanding that the Plaintiffs do not have a legal or equitable estate or interest in the land which is the subject of the primary application for the purposes of s 74B(1) of the Real Property Act, that would not support a strike-out of the Plaintiffs' claim. 32The Plaintiffs contend that they have standing to seek the relief sought in the first and second paragraphs of the Summons, although they do not have a caveatable interest in the land. They rely on the second limb of the exception to the general principle that a private plaintiff cannot sue to enforce a public right or duty, and point to the recognition of that principle in the judgment of Gibbs J (as his Honour then was) in Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493 at 526 - 531. Gibbs J there noted (at 527) that an actual pecuniary loss was not required to establish a special interest nor need that interest be unique to the particular plaintiff. His Honour also noted (at 529) that: "It is quite clear that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty. There is no difference, in this respect, between the making of a declaration and the grant of an injunction. The assertion of public rights and the prevention of public wrongs by means of those remedies is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so." His Honour noted (at 530-531) that "an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails." 33That test was subsequently applied in, inter alia, Onus v Alcoa of Australia Ltd (1981) 149 CLR 27, where members of an Aboriginal community who sought to prevent Alcoa from carrying out works that could interfere with Aboriginal relics were held to have standing on the basis of a "special interest" in the relics that was greater than that of other members of the public and greater than that of other persons of Aboriginal descent who were not members of that community. Stephen J (at 41-42) noted that it was necessary to conduct an assessment of the concern that a plaintiff has with the particular subject matter and the closeness of the plaintiff's relationship with that subject matter, and the mere absence of a material interest in the subject matter, in the sense of property or possessory rights, would not be a bar to standing. Brennan J (as his Honour then was) there noted (at 73) that a special interest may arise absent a legal or equitable right or a proprietary or pecuniary interest, and referred to several building and planning cases where decisions by public officials have been treated as giving rise to such an interest where they would adversely affect the value of a neighbour's land. 34In Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [46]-[47], Gaudron, Gummow and Kirby JJ observed that: "In the joint judgment of Brennan, Dawson, Toohey, Gaudron and McHugh JJ in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA), reference was made to the requirement that the plaintiff have "a special interest in the subject matter of the action". Their Honours stated that the rule is flexible and continued that "the nature and subject matter of the litigation will dictate what amounts to a special interest". This emphasises the importance in applying the criteria as to sufficiency of interest to support equitable relief, with reference to the exigencies of modern life as occasion requires. It suggests the dangers involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action, where the consequences of doing so may be unduly to constrict the availability of equitable remedies to support that public interest in due administration which enlivens equitable intervention in public law. ... It will be recalled that, in Onus v Alcoa of Australia Ltd, Brennan J warned that to deny standing may be to "deny to an important category of modern public statutory duties an effective procedure for curial enforcement. In Australian Conservation Foundation v Commonwealth Aickin J suggested a course which in the present case would involve asking whether the interest of the respondents in the observance by the appellants of the prohibition in s 11 (1) of the Funeral Funds Act and of the limitations upon their statutory powers is sufficiently related to the relief claimed. His Honour said: "The "interest" of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed ... [T]he plaintiff's interest should be one related to the relief claimed in the statement of claim." Their Honours concluded (at [50]) that: "the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation." A similar approach was also adopted in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; (2000) 200 CLR 591. This test was also treated as applicable to determining whether a plaintiff had standing under s 65 of the Supreme Court Act in Secure Funding Pty Ltd v Coughlin [2009] NSWSC 384; (2009) 74 NSWLR 687 at [36]-[38]. 35In the present case, as I have noted above, the units represented by the Owners Corporation directly adjoin the land that is the subject of Mrs Bailey's primary application; the Registrar-General considered the Owners Corporation had sufficient interest in the subject matter of the application to serve the notice under s 12A of the Real Property Act upon it; persons resident in the units claim to have used a pathway across the land which is the subject of the primary application so as to access Tamarama Park and Tamarama Beach; and there is evidence that such access would improve the value of the units and, conversely, the loss of such access (which has occurred by Mrs Bailey installing a gate on the relevant land) would reduce the value of the units. These matters seem to me to be sufficient to indicate that the Plaintiffs, or at least the Owners Corporation, have or has a special interest in the subject matter of the proceedings, which is distinct from the public at large who neither use the relevant path nor stand to have the value of property increased if that usage is available or reduced if it is not. 36The Plaintiffs submit, and I accept, that those matters at least arguably amount to a sufficient interest in the issue to support their standing to seek relief under s 65 of the Supreme Court Act. These matters would also arguably support the Plaintiffs' standing to seek injunctive relief under s 66 of the Supreme Court Act. I also do not consider that this matter rises to a level that it could be said that the Plaintiffs' claim to relief was unarguable by reason of a lack of a caveatable interest in the Fletcher land or the Tamarama Park land or that a determination of their claim on its merits would be futile for that reason. The third paragraph of Mrs Bailey's motion 37The third paragraph of Mrs Bailey's notice of motion seeks to strike out the third prayer in the Summons, on the basis that the matters set out in Mr Linke's affidavit sworn 24 December 2013 do not indicate that the claimed easement is reasonably necessary for the effective use or development of the Owners Corporation's land for the purposes of s 88K(1) of the Conveyancing Act 1919 (NSW). 38The Plaintiffs accept that it will be challenging for them to establish that the proposed easement is reasonably necessary for the effective use or development of the Owners Corporation's land for the purposes of s 88K of the Conveyancing Act. In particular, they accept that the approach adopted by the Court of Appeal to the "reasonably necessary" standard in Moorebank Recyclers Pty Ltd v Tanlan Pty Ltd [2012] NSWCA 445 at [108]-[117] requires that a person seeking to establish an easement show more than a substantial preference. They contend, however, that an argument is open that they may more readily establish reasonable necessity where Mrs Bailey is not yet the owner of the land in respect of which her claim for adverse possession is brought, and they point to the disadvantage suffered by the Owners Corporation (or, more precisely, by the residents in the units) if they are required to use alternate routes on foot to Tamarama Park and Tamarama Beach. They point out that this is at least a factual issue, on which evidence would properly be led at a final hearing. 39There is real force in Mrs Bailey's criticisms of the substance of this claim and, in particular, in her point that, if more convenient access to Tamarama Beach provided a basis for an easement, then not only the Owners Corporation but many others would have claims to such an easement in respect of properties that provided such convenient access. Nonetheless, the claim for an easement involves questions of fact and degree, and it does not seem to me that, as a matter of discretion, the Court should strike out that claim where the matter will go to hearing in respect of the claims to injunctive relief that involve a common factual substratum with the claim to an easement. If the Owners Corporation's claim is weak, then it will fail at such a hearing, but there is likely to be no substantial disadvantage to Mrs Bailey in having to defend that claim as well as the claims for injunctive relief. Mr Van Aalst properly accepted that, if the claims for injunctive relief were to go to a hearing, then the claim for an easement could properly be treated on the same basis. The fourth paragraph of Mrs Bailey's motion 40The fourth basis of Mrs Bailey's motion for abuse of process, which appears to depend on the proposition that, at the time the proceedings were commenced, the application for injunctive relief involved an abuse of process because it raised complex issues as to the Plaintiffs' standing, by contrast with the approach permitted by lodgement of a caveat under the Real Property Act. Mrs Bailey also initially contended that there was no utility in the proceedings where the relief sought by Waverley Council was the same as that sought by the Plaintiffs. To the extent that proposition had any force, it related only to the portion of the Tamarama Park land to which Mrs Bailey lays claim, and not to the portion of the Fletcher land. It also does not seem to me that, because two parties pursue parallel proceedings in which each has an interest, then the pursuit of those proceedings by either one of those parties constitutes an abuse of process. 41In the event, Mr Van Aalst accepted that the claim for an abuse of process was consequential upon the other matters raised by Mrs Bailey, and not an independent source of a basis to strike out the Plaintiffs' claims. Since Mrs Bailey has not succeeded in the other aspects of the application, she would also not succeed in this aspect of the application. For that reason, leave should not be granted to amend the motion to include this paragraph. Outcome 42For these reasons, the Defendants' motion should be dismissed with costs.