Arinson Pty Limited v City of Canada Bay Council (No 2)

[2014] NSWLEC 167

Land and Environment Court

New South Wales

Case Title:	Arinson Pty Limited v City of Canada Bay Council (No 2)
Medium Neutral Citation:	[2014] NSWLEC 167
Hearing Date(s):	22 October 2014
Decision Date:	22 October 2014
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	By consent, Order 2 made on 2 May 2014 is stayed pending determination of the appeal to the Court of Appeal.
Catchwords:	PRACTICE AND PROCEDURE - stay of an order for payment within 28 days of compensation for an easement granted by the Court pending determination of an appeal.
Legislation Cited:	Conveyancing Act 1919 s 88K
Cases Cited:	Arinson Pty Limited v City of Canada Bay Council [2014] NSWLEC 43
Category:	Procedural and other rulings
Parties:	Arinson Pty Limited (First Plaintiff) Omaya Holding Pty Limited (Second Plaintiff) Omaya Investments Pty Limited (Third Plaintiff) City of Canada Bay Council (Defendant)
Representation
- Counsel:	COUNSEL: S Sattout, solicitor (Plaintiffs) S Jacobs, solicitor (Defendant)
- Solicitors:	SOLICITORS: Sattouts Legal (Plaintiffs) Maddocks (Defendant)
File Number(s):	40092/14

EX TEMPORE JUDGMENT

1. On 2 May 2014 I made the following orders in this proceeding (Arinson Pty Ltd v City of Canada Bay Council [2014] NSWLEC 43):

   1. Pursuant to section 88K of the Conveyancing Act 1919, that the easements identified in Annexure A to these Orders be created burdening the land identified on the Plan of Easements over Lot 1 in Deposited Plan 1059024, which forms part of Annexure A to these Orders, and benefiting Lots 9, 10, 11, 12 and 14 in Deposited Plan 2409 and Lot 13 in Deposited Plan 589132 (the Easements).
   2. The plaintiffs pay compensation, pursuant to section 88K(2)(b) and 88K(4) of the Conveyancing Act 1919, in the sum of $550,000 to the defendant, within 28 days of the date of these Orders.
   3. Upon, but not before, confirmation by the defendant of receipt of the compensation referred to in Order 2 (such confirmation not to be unreasonably withheld), the plaintiffs are to execute a Request Form to enable the Easements to be registered on title, and lodge the Request Form with Land and Property Information for registration.
   4. Upon confirmation by the defendant of the receipt of the compensation referred to in Order 2 (such confirmation not to be unreasonably withheld), the defendant is to immediately remove any fencing owned by the defendant that prevents lawful access to the Easements by the plaintiffs.
   5. The plaintiffs, jointly and severally, are to pay the defendant's costs as agreed or assessed.

2. The plaintiffs now move for a stay of Orders 2-5 pending hearing and determination of their appeal to the Court of Appeal, in which they seek to set aside those orders and (among other things) seek a declaration that compensation is not payable because of the special circumstances of the case pursuant to s 88K(4) of the Conveyancing Act 1919. The defendant consents to the stay. In discussion this morning with the parties' legal representatives, they agreed that if a stay were to be granted, it would suffice that it be a stay of Order 2.

3. The notice of appeal was filed on 24 July 2014. On 8 October 2014 at a directions hearing in the Court of Appeal, a direction was made requiring the appellants to file submissions by 21 October 2014. That was yesterday. They are in default of that order but I am assured by the legal representative of the plaintiffs that their submissions are ready and will be filed today. Their uncontested evidence, which I accept, is that otherwise the plaintiffs are doing everything necessary to progress their appeal, and that they would be prejudiced in having to make arrangements to pay the compensation now if the appeal were successful. A further directions hearing in the Court of Appeal is listed on 29 October 2014 when it is expected that a hearing date will be allocated. In the event of a stay, the defendant is protected because the easements cannot be registered unless and until the payment is made, and the plaintiffs acknowledge that if the appeal is unsuccessful, the amount of compensation would be payable with statutory post judgment interest.

4. In the circumstances, I consider that it is appropriate to stay Order 2 pending determination of the appeal to the Court of Appeal.

5. The order of the Court, by consent, is that Order 2 made on 2 May 2014 is stayed pending determination of the appeal to the Court of Appeal.