2024 Cases

[NB easement and covenant cases are marked with **]

Litigation

Bugeja v Bugeja (2024) NSWSC 927 – Represented the successful plaintiffs in a suit for the specific performance of a deed concerning the sale of valuable farming land.

The case involved two brothers and their wives, owners of productive land in Agnes Bank, on the Hawkesbury River. A nearby desirable farm, Stewart’s Farm, was put up for auction. The plaintiffs claimed they had an agreement with the defendants, documented by a solicitor and signed on the back of a ute in a shed, with counterparts exchanged. The agreement stipulated:

1. The plaintiffs would not bid at the auction for Stewart’s Farm.
2. In return, if the defendants won the auction, they would transfer another property adjacent to the plaintiffs’ existing turf farm to the plaintiffs, at a price determined by a formula stipulated in the deed.

The defendants won the auction and acquired Stewart’s Farm. However, they refused to transfer the adjacent property when requested. The male defendant denied executing the counterpart of the deed, and the defendants presented expert handwriting evidence to support this denial. Ultimately, orders were made in the plaintiffs’ favor for the specific performance of the deed under certain conditions. The matter will proceed to a separate hearing on remedies.

Tse v Ngo, Great Current & Smart Shop Pty Ltd (Supreme Court of NSW (Equity Division)) – Acting for plaintiffs who seek a declaration that parties were in a partnership involving import from an overseas supplier of car accessories and that defendant is obliged to give an account. Plaintiffs given leave to issue interrogatories and expedition was ordered.

Tse and Chen v Fleur Evans & David Sampson as Trustee In Bankruptcy for Viet Trung Ngo  (Federal Court of Australia, July 2024) – Successful application before Federal Court for leave to proceed against the natural defendant in the above Supreme Court proceedings, under s 58 of the Bankruptcy Act.

Wandy Rarung & Chris Davies v The Owners – Strata Plan No 88165 – Acting for the Applicants. Undertakings given by respondent Owner’s Corp on the day matter listed for hearing and thus the application did not need to proceed to hearing on the merits. Application for costs successfully sought by the Applicants on the basis that special circumstances could be demonstrated within the NCAT rules, on grounds of capitulation by the Respondent.

NSW Supreme Court Equity Division Proceedings (Real Property List) 2021/75630 – See 2023 entry. Awaiting judgment.

** NSW Supreme Court Equity Division Proceedings (Real Property List) 2024/XXXXX – Act for the defendant in proceedings where the plaintiff’s pleadings seek an order for the imposition of a statutory easement for carriageway under s 88K of the Conveyancing Act. Matter being case managed in the Real Property List to final hearing.

NSW Supreme Court Equity Division Proceedings (Real Property List) 2022/99206 – Action for specific performance of a contract for the sale of development land. Various defences raised. Notice of Motion as to whether the proceedings have been settled. Being case managed to final hearing.

** Expert determination: Appointed to act for one of the parties in a dispute where Neighbour 1 has easement rights to use parts of the property of Neighbour 2. Issues involved include the true construction of an easement and associated covenant.

Applications

** Application to the Registrar-General to expunge from the record an easement on the basis that the dominant owners and their predecessors in title have not used it for over 20 years and are thus presumed under s 49 of the Real Property Act to have abandoned it.

** Application to the Department of Industry that a “paper”/Crown road be sold to my client free of any easement for carriageway in favour of a neighbouring property.

Major Advices

Whether certain restraint of trade clauses were binding upon a high-profile real estate agent having regard to both the geographic compass and temporal extent of the restraint.

** Whether certain activities by servient owners constituted a substantial interference with the dominant owners’ rights of way relating to a large seaside property in Sydney’s suburbs. Also addressed questions of nuisance and trespass.

** Considered question of reasonable necessity for effective use of land, whether a Court is likely to favourably consider the applicants’ request for a statutory easement for vehicle manoeuvre pursuant to s 88K of the Conveyancing Act.

Advice to purchasers who had purchased off-the-plan from developers who subsequently entered receivership regarding the nature of the purchasers’ rights against the receiver.

** Advice relating to right of carriageway in rural setting where the carriageway exceeds one kilometre. Servient owner wishes to erect gates and dominant owner asserts that this would constitute an unreasonable interference with his rights of carriageway.

Mediations

NSW District Court Case No. 2024/XXXXX – Acting as mediator in a professional negligence/misleading and deceptive conduct claim with regard to the purchase of a property off-the-plan by way of a put and call option deed.

NSW Supreme Court Case No. 2024/XXXXX – Acting for a liquidator in Supreme Court proceedings. Liquidator asserted that one of the defendants’ acquisition of interests in real property was void or voidable under s 121 of the Bankruptcy Act.