Abtourk Pty Limited v Leichhardt Municipal Council [1996] NSWLEC 88 (26 March 1996)

[1996] NSWLEC 88

Land and Environment Court

of New South Wales

CITATION:	ABTOURK PTY LIMITED v. LEICHHARDT MUNICIPAL COUNCIL [1996] NSWLEC 88 (26 March 1996) [1996] NSWLEC 1
PARTIES:	ABTOURK PTY LIMITED v. LEICHHARDT MUNICIPAL COUNCIL
FILE NUMBER(S):	10925 of 19952002
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:
EX TEMPORE JUDGMENT DATE :	03/26/1996
LEGAL REPRESENTATIVES:

JUDGMENT:

I am unconvinced that the hearing dates should be vacated and they are confirmed. As to the alternatives in the Notice of Motion, no satisfactory reasons have been given why the issues should be permitted to be expanded at this point in time, only a few days from the hearing. I refuse leave to add issues 6, 7 and 8 in annexure `A' to the Notice of Motion.

The only question that really remains is what the council should be permitted to do in terms of filing and serving any expert reports. The hearing is to commence on Wednesday 3 April 1996 and para 2 of the Motion seeks, in the alternative, that council's expert reports sought to be relied upon be served by Monday 1 April.

Mr Parry, on behalf of the applicant, for reasons that he expounded, suggests that the most laxity that should be given to the council in terms of service of expert reports be 5pm today. I think that is unreasonable. There is however not much leeway for the council. Indeed, the later that the council serves any expert reports, the more difficult it is for the applicant. One has to accept that. At the same time, notwithstanding the way in which this matter has developed, insofar as it is possible, council should be able to present its evidence on the identified issues which remain in the case, although not the new issues which I have refused to permit to be raised.

A weekend intervenes and it seems that the best I can do in fairness to both parties (insofar as time allows) is to give the council until 5pm on Friday of this week, 29 March 1996 to serve, any expert reports it proposes to rely on.

At the hearing to commence on 3 April, no doubt leave will be granted to the applicant to reply in oral form, if it is not in a position to do otherwise. I would perfectly understand if that be the case.

I refuse leave to the respondent to rely upon new issues 6, 7 and 8 in annexure `A' to the Notice of Motion filed 26 March 1996. I give leave to the respondent to serve any expert reports on or before 5pm on 29 March 1996.

PARRY: Would your Honour extend that leave to the applicant as well, I've indicated that there are reports ready and there's no reason why it shouldn't be filed today but in fairness in those circumstances we'd ask for in effect that exchange occur of reports.

HIS HONOUR: There's no reason it seems to me why the reports haven't already been served. This idea that they've always got to be exchanged and so there's no perceived advantage and one having a bit of a look see before you get the others, I'm surprised they haven't already been served and I don't see why they shouldn't be served if they're ready.

PARRY: Might we have a direction that we serve that evidence by 5pm today.

HIS HONOUR: Applicant to serve any expert reports by 5pm 26 March 1996.

Anything else?

PARRY: Yes we would seek costs of the motion. Can your Honour hear me on costs?

HIS HONOUR: I think I need to hear Mr McEwen on costs rather than hear you, what do you say Mr McEwen why shouldn't you be ordered to pay the costs of the motion?

MCEWEN: Very little I can say except this, the affidavit of Miss Blackah does indicate efforts by the council to try to resolve this matter or to proceed on a proper basis. It is therefore appropriate that the matter be brought back before you, there's nothing further I wish to say, your Honour.

HIS HONOUR: Council almost wholly failed on the Notice of Motion. I think that costs should follow the event of Motion. I order the respondent to pay the applicant's costs for the Notice of Motion.