2128 Pty Ltd v Ugarkovic

[2015] NSWSC 962

Supreme Court

New South Wales

Medium Neutral Citation:

2128 Pty Ltd v Ugarkovic [2015] NSWSC 962

Hearing dates:

17 July 2015

Date of orders:

17 July 2015

Decision date:

17 July 2015

Jurisdiction:

Common Law

Before:

Davies J

Decision:

By consent:

 

1. Under reservation of all the Defendants' rights, the Plaintiffs' Summons and Statement of Claim be further amended in terms of the proposed Further Amended Summons and proposed Further Amended Statement of Claim annexed hereto and marked "A" and "B".

 

2. All cost incurred to date be reserved.

 

3. All other Orders/Directions made to date be vacated.

 

4. For the sake of an abundance of certainty it is noted that the return date of the Statement of Claim, i.e. 28 July 2015, and the date on which this matter is listed for hearing, viz 22 July 2015 be vacated.

 

Further order:

Pursuant to s 149B of the Civil Procedure Act 2005 (NSW), an Order made for the proceedings to be transferred to and heard in the Land and Environment Court.

Catchwords:

COURTS – transfer between courts – whether proceedings more appropriately dealt with in the Land and Environment Court – ancillary jurisdiction

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Category:

Procedural and other rulings

Parties:

2128 Pty Ltd (First Plaintiffs)
Alec Sydney Gardner (Second Plaintiffs)
Jennifer Maxine Gardner (Third Plaintiffs)
Anita Ugarkovic (First Defendant)
Carl Georgeson (Second Defendant)
Stephen Clements (Third Defendant)

Representation:

Counsel:
M S Jacobs QC (Plaintiffss)
S Balafoutis (Defendants)

  Solicitors:
Carneys Lawyers (Plaintiffss)
Minter Ellison (Defendants)

File Number(s):

2015/186085

Judgment

1. These proceedings between the Plaintiffs and the Defendants raise for consideration the validity of various acts of the local council in relation to the premises the subject of the claim and notices have been issued by the council in respect of the use of the premises. The Defendants were all officers of the Council.

2. By Notice of Motion filed on 1 July 2015 the Plaintiff sought to join the local council itself as the Fourth Defendant in the proceedings. An order was also sought that pending the determination of the validity of a particular notice referred to in the Plaintiffs’ Amended Statement of Claim the Respondents (by which is meant, the Defendants) be restrained from acting further on the notice or issuing any of the other orders proposed in the Amended Statement of Claim.

3. The Motion was listed for hearing before me on Wednesday 22 July. The parties have settled the Motion and by Consent Orders they propose that amendments should be made to the Plaintiffs’ Summons and Statement of Claim. The Consent Orders also provide for an order to be made under s149B of the Civil Procedure Act 2005 (NSW) that the proceedings be transferred to and heard in the Land and Environment Court. Such an order is not made by consent but is made if the Court is satisfied of the matters in that section.

4. I am satisfied from reading the Statement of Claim in the matter that the issues to be determined by the parties are more appropriately dealt with by the Land and Environment Court. They involve the sort of issues that that Court deals with on a daily basis.

5. One of the claims made in the Statement of Claim is that there be damages against the Defendants for misfeasance in public office. Ordinarily the Land and Environment Court would not have jurisdiction to deal with that matter, however s149E of the Civil Procedure Act gives to the transferee court all of the jurisdiction of the transferor court.

6. It is appropriate therefore to make the order for transfer contained in the documents signed by the legal representatives of the parties. I will make the other orders by consent.

7. The listing on 22 July 2015 is vacated.

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Decision last updated: 17 July 2015