Wirepa v Hill

EX TEMPORE Judgment

1. This is the Court's second judgment in these proceedings. In the Court's first judgment given on 23 November 2023, the Court dismissed the plaintiff's Summons under Civil Procedure Act 2005, s 61 and under the Uniform Civil Procedure Rules 2005 ("UCPR"), r 12.7 and ordered that the plaintiff pay 80% of the defendants' costs of the proceedings on the ordinary basis: Wirepa v Hill [2023] NSWSC 1394. This judgment should be read with the Court's first judgment and events, persons and things are referred to in both judgments in the same way.
2. The Court also ordered in its first judgment that the plaintiff may not commence further proceedings seeking relief in substantially the same form as the relief sought in the Summons without first paying the defendants' costs, and that upon dismissal of the Summons, the defendants' Cross Claim should be transferred to the District Court under Civil Procedure Act, s 146.
3. But the operation of these orders was stayed until 8 December 2023 upon terms. The stay was granted to permit Ms Wirepa to take advantage of the funds she anticipated would become available to her through the sale of the New Zealand property or from the sale of the Kotara property following the outcome of the Family Law proceedings.
4. The stay effectively allowed Ms Wirepa two months from the principal hearing dates of 6 and 13 October 2023, to get her procedural house into order. Ms Wirepa was clearly warned in early to mid-October to attend to her procedural defaults in this action. But when the matter came before the Court today, Ms Wirepa did not present to the Court any evidence that conformed with the terms of the stay on the first judgment.
5. Those orders would have permitted the stay to continue, had Ms Wirepa complied with them. Those orders were as follows: "(1) For the purpose of these orders (a) "the Land" means all the land in title references 123/DP[number not published], 1/DP[number not published], 30/CD[number not published] and 18/DP[number not published], (b) "the Summons" means the Summons filed by the plaintiff on 9 November 2022, (c) the Cross Claim means the Cross Claim filed by the defendants/cross claimants on 17 March 2023, (d) "the Motion" means the defendants' Notice of Motion filed on 5 July 2023, and (e) "the easement" means the easement claimed in prayer for relief 9 in the Summons. (2) The plaintiff's Summons is dismissed on the following grounds, namely: (a) that the plaintiff is a party to these proceeding to whom the Court has given a direction (by means of the Court accepting the undertaking of the plaintiff in the Court's consent orders dated 17 November 2022) that the plaintiff will at her cost: (i) conduct a survey of the Land that is sufficient to enable the easement to be registered ("the survey task"); and (ii) have drawn up all necessary documentation for the registration of the easement in the nature of a right of way ("the survey and registration undertaking") but the plaintiff has failed since 17 November 2022 to complete a survey task, or have the necessary registration documentation drawn up. (b) under Uniform Civil Procedure Rules 2005 ("UCPR"), r 12.7 because the plaintiff has not conducted the proceedings with due dispatch by reason of the conduct identified in sub-paragraph (a) of this order, by failing to comply with the survey and registration undertaking. (3) Order that the plaintiff (a) shall pay 80% of the defendants' costs of these proceedings on the ordinary basis; and (b) may not commence further proceeding seeking relief substantially the same as the relief sought in the Summons, without first paying the defendants' costs ordered in (a). (4) Note that the defendants no longer seek the relief sought in prayer for relief 1 of the Motion. (5) Upon the dismissal of the Summons pursuant to Order 2 of these orders, the defendants' Cross Claim will also be transferred to the District Court for hearing and determination, pursuant to Civil Procedure Act 2005, s 146. (6) Stay the operation of Orders (1) - (5) until 8 December 2023. (7) The stay provided for in Order (6) may be ordered to continue and then these proceedings may be listed for hearing, if the plaintiff can satisfy the Court on the basis of evidence filed and served on or before 8 December 2023 that: (a) the plaintiff has engaged a surveyor to undertake and complete the survey task and the plaintiff has set aside or secured sufficient funds to pay that surveyor; (b) the plaintiff has engaged lawyers to assist the plaintiff to fulfill the survey and registration undertaking and has set aside or secured sufficient funds to pay those lawyers; and (c) the plaintiff has paid into Court, or otherwise set aside or secured, sufficient funds to meet, (i) the defendants' reasonable costs of registering the deposited plan to create the easement; and (ii) the consideration for the transfer of the easement to the plaintiff."