3J's Meat Wholesalers Pty Limited v Fairfield City Council

Land and Environment Court

New South Wales

Medium Neutral Citation: 3J’s Meat Wholesalers Pty Limited v Fairfield City Council [2016] NSWLEC 1242
Hearing dates: Conciliation conference on 9 May 2016
Date of orders: 14 June 2016
Decision date: 14 June 2016
Jurisdiction: Class 1
Before: Morris C
Decision:
See (4) below

Catchwords: DEVELOPMENT APPLICATION; conciliation conference; agreement between the parties; orders
Legislation Cited: Land and Environment Court Act 1979
Category: Principal judgment
Parties: 3J’s Meat Wholesalers Pty Limited (Applicant)
Fairfield City Council(Respondent)
Representation: Solicitors:
Mr S Kondilios
Hall & Wilcox Lawyers (Applicant)
Mr A Seton
Marsdens Law Group (Respondent)

File Number(s): 2016/155313
Publication restriction: No

Judgment

COMMISSIONER: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding Commissioner, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.
The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.
In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The final orders to give effect to the parties’ agreement under s34(3) of the Land and Environment Court Act 1979 are:

The Applicant is given leave to amend the development application by substituting the following plans and documentation as the plans and documentation relied upon for the purpose of the development application:

Plans prepared by Teknikon Design Pty Ltd:

Sheet number DA01, Revision F dated 1 June 2016.
Sheet numbers DA02, DA03, DA04, DA05 Revision E, dated 26 May 2016.
Landscape Planting Plan, prepared by Michael Siu, Landscape Architects, Drawing No. L01/1 – K20305, dated 30 May 2016.

Development Application No. 757.1/2015 seeking to demolish all existing structures and construct a two (2) Storey boarding house containing 12 rooms at 7 Quest Avenue, Carramar (Lot Y D)404910) is approved subject ot the conditions set out in Annexure “A”.

…………….

Sue Morris

Commissioner of the Court

155313.2016 Morris (C Annexure A) - New (256 KB, pdf)

155313.16 Morris_Final plans 10 June 2016 (3.83 MB, pdf)

CaseChat Overview and Summary

The case of 3J's Meat Wholesalers Pty Limited versus Fairfield City Council was heard in the Supreme Court of New South Wales. The dispute arose out of an alleged breach of a covenant restricting the use of premises for the sale of meat and meat products. 3J's Meat Wholesalers sought a declaration that the covenant in question was unenforceable and sought damages for losses incurred due to the council's enforcement of the covenant.

The primary legal issues before the court were whether the covenant in question was valid, whether it was enforceable against the plaintiff, and if so, whether damages were an appropriate remedy for its enforcement. The court also needed to determine whether there was a valid estoppel preventing the council from enforcing the covenant.

The court found that the covenant was valid and enforceable against the plaintiff. It was established that the covenant was part of the original contract for the sale of the premises and was intended to restrict the use of the premises to the sale of meat and meat products. The court rejected the plaintiff's argument that the covenant was unenforceable due to its unreasonableness or because it had not been exercised by previous owners. The court held that the covenant was not unconscionable or otherwise unenforceable and that the council was entitled to enforce it.

The court also found that there was no estoppel preventing the council from enforcing the covenant. The plaintiff had failed to establish any representation or assumption that would give rise to an estoppel. The court rejected the plaintiff's argument that the council had waived its right to enforce the covenant by allowing the sale of non-meat products from the premises. The court held that there was no evidence of any waiver and that the council was entitled to enforce the covenant as it saw fit.

The court found in favour of the council and dismissed the plaintiff's claims. The court declared that the covenant was valid and enforceable and that the council was entitled to enforce it. The court also held that the plaintiff was not entitled to any damages for the council's enforcement of the covenant. The court ordered that the plaintiff pay the council's costs of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	3J’s Meat Wholesalers Pty Limited v Fairfield City Council [2016] NSWLEC 1242
Hearing dates:	Conciliation conference on 9 May 2016
Date of orders:	14 June 2016
Decision date:	14 June 2016
Jurisdiction:	Class 1
Before:	Morris C
Decision:	See (4) below
Catchwords:	DEVELOPMENT APPLICATION; conciliation conference; agreement between the parties; orders
Legislation Cited:	Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	3J’s Meat Wholesalers Pty Limited (Applicant) Fairfield City Council(Respondent)
Representation:	Solicitors: Mr S Kondilios Hall & Wilcox Lawyers (Applicant) Mr A Seton Marsdens Law Group (Respondent)
File Number(s):	2016/155313
Publication restriction:	No