Bayside Council v Morton - [2025] NSWSC 483

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bayside Council v Morton [2025] NSWSC 483
Hearing dates: 16 May 2025
Date of orders: 16 May 2025
Decision date: 16 May 2025
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1) Pursuant to s 149B(2) of the Civil Procedure Act 2005 (NSW), that these proceedings be transferred to the Land and Environment Court and be heard together with proceedings number 2024/00338108 in that Court.
(2) Each party bear its own costs of the Motion.

Catchwords:
CIVIL PROCEDURE – consent judgment – transfer of proceedings to the Land and Environment Court – parties have agreed proceedings be transferred to be heard with related proceedings – proceedings transferred to Land and Environment Court

Legislation Cited:
Civil Procedure Act2005 (NSW)
Environmental and Planning and Assessment Act 1979 (NSW)
Land and Environment Court Act 1979 (NSW)

Cases Cited:
Young v King [2016] NSWCA 282

Category: Principal judgment
Parties: Bayside Council (Plaintiff)
Dean Morton (Defendant)
Representation: Solicitors:
Lindsay Taylor Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2025/138247
Publication restriction: Nil

JUDGMENT

By motion supported by an affidavit of its solicitor Ms Hawley, the Council sought orders transferring these proceedings to the Land and Environment Court for hearing, there being related other proceedings on foot between them in that Court. This Court has power to make such an order under s 149B of the Civil Procedure Act2005 (NSW). The parties have now agreed to the transfer and ask the Court to order it, by consent.
Such an order depends on satisfaction “that it is more appropriate for the proceedings to be heard in the other court”: s 149B(1). Factors to be considered being the nature of the proceedings and the relief sought: Young v King [2016] NSWCA 282 at [15].
Transfer can be ordered so that these proceedings can be heard together with related proceedings, on satisfaction that there are related proceedings pending in the Land and Environment Court and that it is more appropriate for these proceedings to be heard together with the related proceedings in that Court: s 149B(2).
These proceeding were brought in September 2024 in pursuit of claimed unpaid development contributions of over $3 million, in breach of the Environmental and Planning and Assessment Act 1979 (NSW), in circumstances where Mr Morton, the defendant certifier, had issued an occupation certificate in relation to a large residential development at Arncliffe to Arncliffe Investments No 1 Pty Ltd. It then completed the sale of the site and entered as voluntary liquidation.
It is Mr Morton’s alleged breach of that Act, an applicable Regulation and the duty which he owed the Council which is pursued in these proceedings. In the Land and Environment Court it is the recovery of contributions required under that Act which are pursued, those proceedings falling within s 20(1)(e) of the Land and Environment Court Act 1979 (NSW), which could not have been pursued in this Court: s 71(1).
The claims are all defended, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bayside Council v Morton

Details

AGLC: Bayside Council v Morton [2025] NSWSC 483
Case: [2025] NSWSC 483
Decision Date: 16 May 2025

CaseChat Overview and Summary

The parties to this case were Bayside Council and Mr Morton. The dispute between them was related to the enforcement of local planning laws. The matter was heard and determined in the Supreme Court of New South Wales. The primary issue before the court was whether the proceedings, which had been initiated in the Supreme Court, should be transferred to the Land and Environment Court due to the parties' agreement and the related proceedings already being heard in that court. The court also needed to consider the procedural fairness in making such a transfer and whether it was appropriate under the circumstances.

The court considered that the primary purpose of transferring proceedings was to achieve a just and efficient resolution of disputes. In this case, the parties had reached an agreement to transfer the proceedings to the Land and Environment Court, where related matters were already being heard. The court found that transferring the proceedings would facilitate a comprehensive and coordinated resolution of the issues, and that there was no prejudice to either party in doing so. The court further held that it had the discretion to order the transfer under the relevant legislation and procedural rules. Consequently, the court determined that it was appropriate to transfer the proceedings to the Land and Environment Court.

The Supreme Court ordered that the proceedings be transferred to the Land and Environment Court, in accordance with the parties' agreement and for the reasons outlined above. This decision allowed the parties to have their disputes resolved in a single forum, which was seen as promoting efficiency and fairness in the judicial process. The court's decision was based on the consent of the parties and the benefits of transferring the proceedings to a court with relevant expertise in the subject matter of the dispute.

Orders