Sakha and Sons Pty Ltd v Prime Gordon Pty Ltd

[2018] NSWSC 1827

Supreme Court

New South Wales

Medium Neutral Citation:	Sakha & Sons Pty Ltd v Prime Gordon Pty Ltd and Another [2018] NSWSC 1827
Hearing dates:	23 November 2018
Decision date:	23 November 2018
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	Ex tempore - application dismissed
Texts Cited:	n/a
Category:	Consequential orders (other than Costs)
Parties:	Sakha & Sons Pty Ltd (plaintiff) Prime Gordon Pty Ltd (first defendant) TQM Design & Construction Pty Ltd (second defendant) Prime Gordon Pty Ltd (cross claimant) Sakha & Sons Pty Ltd (cross defendant)
Representation:	J Emmett SC (plaintiff) G Sirtes SC (defendant) J Smith (applicant on the motion)
File Number(s):	2018/284411

Judgment – ex tempore - Revised

On joinder

1. This is an application pursuant to rr 6.26 and/or 6.27 of the Uniform Civil Procedure Rules 2005 (NSW) for the applicant Northern Group 3 Pty Limited to be joined as a party to these proceedings and the cross-claim.

2. In brief, the main proceedings involve a dispute between the current owner of the property and the adjacent landowner in relation to issues concerning easements, damages for trespass and proposed consequential orders.

3. The Plaintiff in the main proceedings is Sakha & Sons Pty Ltd, which has filed an Amended Statement of Claim seeking damages, including exemplary and aggravated damages, against the First Defendant Prime Gordon Pty Ltd and TQM Design & Construct Pty Ltd concerning rock anchors and crane swing imposed over its property.

4. Prime Gordon Pty Ltd has also issued a cross-claim, seeking easements in respect of its rock anchors and crane swing into the Plaintiff’s property.

5. The Plaintiff in the main proceedings, which if these easements are granted would be the servient tenant, has subsequently sold its property (at 860 Pacific Highway Gordon 2072) to Northern Group 3 Pty Limited (Northern Group) pursuant to a contract which will be completed, I am told, sometime in April 2019.

6. Mr Smith, who today appears for the applicant on the motion for joinder Northern Group, submits that by reason of that contract and by reason in part of the lodgement of caveat, there is an estate or interest in the land such that it should be joined to the proceedings, either pursuant to s 88K(2)(b) of the Conveyancing Act 1919 (NSW) or, alternatively, as a matter of general principle.

7. In my view, the application for joinder is misconceived and should be refused. In broad terms, whilst it is true that a party pursuant to a contract for the purchase has certain equitable rights, in my view the question of who should or should not be party and, therefore, who should or should not be heard in relation to an easement application under s 88K is governed by s 88K(2)(b). That section identifies as the principal party interested, the owner of the land.

8. In addition s 88K(2)(b) refers to “each other person having an estate or interest in that land” importantly “that is evidenced by an instrument registered in the General Register of Deeds or the Register kept under the Real Property Act 1900”.

9. I will not at this stage set out the balance of that section. In my view the equitable interest created by the purchase agreement is insufficient for the purposes of s 88K(2)(b).

10. In addition, the mere fact that a caveat has been lodged which, upon examination, does no more than refer back to this contract in a rather ambiguous fashion and does not itself qualify as an “instrument” registered accordingly. A caveat does not fall within s 88K(2)(b) in my view because a caveat is in my view correctly characterised as simply a mechanism for devising the protection of rights pending proper determination: Barry v Heider (1914) 19 CLR 197; [1914] HCA 79.

11. Further in my view, s 88K(2)(b) covers the field, as it were, in relation to the easement claim and as far as I am concerned there is no general principle over and above that which applies by which I could exercise my discretion consistent with the principles in “Super League” (that is, News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; [1996] FCA 870) and other cases to join.

12. In addition, however, it is said that Northern Group has an interest in the trespass allegations because once it becomes the registered proprietor it would have ongoing concerns about those issues and is entitled to seek compensation in relation to trespass. As best I can understand the argument, it seems to me that this is premature prior to Northern Group becoming a registered proprietor or going into possession.

13. There is no doubt equally that so far as the application which is mooted for today by Mr Sirtes’ client, namely, an easement for a crane swing, may well in due course affect Northern Group as well once it becomes a registered proprietor.

14. It seems to me, however, that once it does become a registered proprietor all of its rights can be pursued. Those rights could well involve an application to extinguish or vary whatever easement it may or may not be granted in due course.

15. Secondly, if there is ongoing trespass which then affects Northern Group as a registered proprietor, it may or may not have an action against Mr Sirtes’ client at that point.

16. At the moment, at least, I see no legal basis for the joinder and I therefore dismiss the application.

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