95 Regent Street Kogarah Pty Ltd v Georges River Council (No 2)

[2019] NSWLEC 1390

Land and Environment Court

New South Wales

Medium Neutral Citation:	95 Regent Street Kogarah Pty Ltd v Georges River Council (No 2) [2019] NSWLEC 1390
Hearing dates:	13 August 2019
Date of orders:	27 August 2019
Decision date:	27 August 2019
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The Court orders that: (1) Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) that Lot 122 in DP 1106586 be included in the identification of the land to which consent applies detailed in Annexure D, the Conditions of Consent, to the decision in 95 Regent Street Pty Ltd v Georges River Council [2019] NSWLEC 1206 as set out in Schedule A.
Catchwords:	PROCEDURE – Notice of Motion – Uniform Civil Procedure Rules – Rule 36.17
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005
Cases Cited:	95 Regent Street Pty Ltd v Georges River Council [2019] NSWLEC 1206 Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195
Category:	Procedural and other rulings
Parties:	95 Regent Street Kogarah Pty Ltd (Applicant) Georges River Council (Respondent)
Representation:	Counsel: B Salon (Solicitor) (Applicant) J Ware (Solicitor) (Respondent)   Solicitors: Mills Oakley (Applicant) Georges River Council (Respondent)
File Number(s):	2018/140943
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings came before me on a Notice of Motion (Motion) filed on 29 July 2019 and heard on 13 August 2019. The applicant seeks an amendment with respect to my judgment in the substantive proceedings: 95 Regent Street Pty Ltd v Georges River Council [2019] NSWLEC 1206 (the Judgment). The amendment is consented to by the Respondent.

2. The amendment sought by the applicant is described in the affidavit of Mr B Salon annexed to the Motion as follows:

“… an application seeking an order to correct the accidental omission of Lot 122 in DP 1106586 from the descriptive header in Annexure D, the Conditions of Consent, to the decision of Commissioner Dickson in 95 Regent Street Pty Ltd v Georges River Council [2019] NSWLEC 1206 handed down on 14 May 2019.”

3. There was no objection raised by Ms Ware to the affidavit sworn by Mr B Salon or the application made by the Applicant.

4. It is agreed between the parties that the development application form, which formed part of the Class 1 Application on appeal, relevantly states that the development was proposed to be undertaken at 71-97 Regent Street, Kogarah, identified as being: Lots 105 to Lot 112, 115, 123-124 Sec B DP 1397, Lot 1 to Lot 2 DP 555070, Lot 1 DP 975014, Lot 1 DP952666, Lot 1 DP 954762, Lot 1 DP 345773 and relevantly Lot 122 DP 1106586. A copy of the relevant development application was annexed to the affidavit of Mr B Salon. Equally the survey plan which formed part of the development application included Lot 122 DP 1106586.

5. My earlier judgment refers to the development for which consent was sought being at: 71-97 Regent Street Kogarah NSW 2217. The applicant has undertaken a street address search of the NSW Torrens Title Register for 97 Regent Street. The Street Address register search confirms that 97 Regent Street, to which order (4) of the judgment refers in granting consent to the development, comprises Lots 123-124 Dec B 1397 and Lot 122 DP 1106586.

6. I am satisfied that the development application to which consent was granted in the judgment included the development of Lot 122 in DP 1106586 as part of the collection of properties referred to as 71-97 Regent Street Kogarah NSW 2217.

7. Further the applicant has confirmed, by title search, that the registered owner of Lot 122 in DP 1106586 is the Applicant.

8. The motion seeks to effect the amendment sought, refer to [2], pursuant to the Court’s power pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (UCPR), referred to as the ‘slip rule’.

9. Despite the acceptance by the parties that the mistake is not one of the Court’s, they submit that this power under rule 36.17 of the UCPR is available to the Court on the following grounds:

1. the amendment sought is consistent with, and distinguished from, the decision of Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [266] as the requested amendment does not seek to alter the land to which consent was granted in the judgment. The amendment sought under rule 36.17 is to ensure that the descriptive header to the conditions annexed to the judgment is consistent with land described in order (4) of the judgment;

2. the amendment sought is to correct a mistake or error in the decision of the Court in order to carry into effect the intent of the Commissioner. This is consistent with the decision of the Court in Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc (2007) 70 NSWLR 411; [2007] NSWCA 195;

3. the Court’s use of the power under rule 36.17 of the UCPR is not limited to an error arising from the Court itself. In support of this submission the parties rely on the decision of the High Court: L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594 which states that the application of the rule ‘extends to authorize an omission resulting from the inadvertence of a party’s legal representative’ (citations omitted).

10. Following a review of the material annexed to the motion and consideration of the grounds on which the parties rely, I am satisfied that the order sought can be made under rule 36.17 of the UCPR for the reasons relied on by the parties and summarised at [9].

11. Further, I am satisfied that it was not the intention of my judgment to omit Lot 122 DP 1106586 from the descriptive header to the conditions annexed to the judgment and that it is appropriate for the correction sought to be made.

Orders

12. The Court orders that:

1. Pursuant to rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) that Lot 122 in DP 1106586 be included in the identification of the land to which consent applies detailed in Annexure D, the Conditions of Consent, to the decision in 95 Regent Street Pty Ltd v Georges River Council [2019] NSWLEC 1206 as set out in Schedule A.

……………………….

D M Dickson

Commissioner of the Court

Schedule A (9.67 KB, pdf)

Decision last updated: 27 August 2019