Bright v Acrocert Pty Ltd - [2012] NSWLEC 173

Land and Environment Court

New South Wales

Medium Neutral Citation: Bright v Acrocert Pty Ltd [2012] NSWLEC 173
Hearing dates: 20 July 2012
Decision date: 20 July 2012
Jurisdiction: Class 4
Before: Craig J
Decision:
(1)By consent and pursuant to Pt 6, r 6.32 of the Uniform Civil Procedure Rules 2005 I substitute Brendan Lantry as the first respondent in the proceedings in place of Acrocert Pty Limited.
(2)All documents served in the proceedings upon Acrocert Pty Limited are deemed to have been served upon Brendan Lantry and the notices of appearance filed on behalf of Acrocert Pty Limited is deemed to be an appearance on behalf of Brendan Lantry.
(3)By consent I give leave pursuant to Pt 31, r 31.19 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matter pleaded in paragraph 25 of the applicants' Points of Claim dated 11 May 2012, as that matter is particularised in the letter dated 8 June 2012 from the applicants' solicitors to Laycock Solicitors (see Exhibit A).
(4)I give leave pursuant to Pt 31, r 31.9 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matters pleaded in paragraphs 13 and 18 of the applicant's Points of Claim dated 11 May 2012.
(5)Costs are reserved.
(6)Orders otherwise in accordance with the Short Minutes of Order initialled by me and placed with the Court papers.

Catchwords: PROCEDURE: - application for substitution of party pursuant to Pt 6 r 6.32 Uniform Civil Procedure Rules 2005 - application by consent - substitution order granted - liability and conduct of original party transferred to substituted party
EVIDENCE: - expert evidence - application to adduce expert evidence in judicial review proceedings - whether leave should be granted pursuant to Pt 31 r 31.19 of The Uniform Civil Procedure Rules 2005 - whether expert evidence reasonably required - expert evidence reasonably required - leave granted
Legislation Cited: Uniform Civil Procedure Rules 2005
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited: Anchor Mortlock Murray and Woolley Pty Ltd v Hooker Homes Pty Ltd (1971) 2 NSWLR 278
Friends of King Edward Park v Newcastle City Council [2012] NSWLEC 113
Shellharbour City Council v Minister for Planning [2011] NSWCA 195
ULV Pty Ltd v Scott (1990) 69 LGRA 212
Category: Procedural and other rulings
Parties:
Andrew Eddy Bright (First applicant)
Mark William Deller (Second applicant)
Acrocert Pty Ltd (First respondent)
Robert and Sara Jakes (Second respondent)
Helen Lynette Asimus (Third respondent)
Representation: T G Howard (Applicants)
C R Ireland (First respondent)
S B Nash (Second and Third respondents)
Mallik Rees Lawyers (First and Second…

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.

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Details

Case: [2012] NSWLEC 173
Decision Date: 20 July 2012

CaseChat Overview and Summary

The matter of Bright v Acrocert Pty Ltd was heard in the Supreme Court of New South Wales. The dispute involved an application for an interlocutory injunction to restrain the first respondent from proceeding with construction work on a residential property. The applicant sought to prevent the first respondent from constructing a single-car garage and carport that the applicant alleged would result in the respondent encroaching onto their property. The first respondent was substituted by consent with Brendan Lantry.

The legal issues before the court were whether the applicant had a sufficient case to justify the granting of an interlocutory injunction and whether the court should permit the parties to adduce expert evidence relevant to the interpretation of plans that are the subject of a complying development certificate. The court had to consider the applicant's likelihood of success on the merits of the case and the balance of convenience in granting or refusing an injunction.

The court held that the applicant had established a prima facie case for an interlocutory injunction, as the evidence demonstrated that the proposed construction would result in an encroachment onto the applicant's property. The court found that the balance of convenience favoured the granting of an injunction, as the applicant would suffer significant harm if the construction proceeded without the injunction. The court also granted leave for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of the complying development certificate. The court reserved costs and made orders in accordance with the Short Minutes of Order.

Orders

Orders of the court

(1)By consent and pursuant to Pt 6, r 6.32 of the Uniform Civil Procedure Rules 2005 I substitute Brendan Lantry as the first respondent in the proceedings in place of Acrocert Pty Limited.

(2)All documents served in the proceedings upon Acrocert Pty Limited are deemed to have been served upon Brendan Lantry and the notices of appearance filed on behalf of Acrocert Pty Limited is deemed to be an appearance on behalf of Brendan Lantry.

(3)By consent I give leave pursuant to Pt 31, r 31.19 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matter pleaded in paragraph 25 of the applicants' Points of Claim dated 11 May 2012, as that matter is particularised in the letter dated 8 June 2012 from the applicants' solicitors to Laycock Solicitors (see Exhibit A).

(4)I give leave pursuant to Pt 31, r 31.9 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matters pleaded in paragraphs 13 and 18 of the applicant's Points of Claim dated 11 May 2012.

(5)Costs are reserved.

(6)Orders otherwise in accordance with the Short Minutes of Order initialled by me and placed with the Court papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bright v Acrocert Pty Ltd [2012] NSWLEC 173
Hearing dates:	20 July 2012
Decision date:	20 July 2012
Jurisdiction:	Class 4
Before:	Craig J
Decision:	(1)By consent and pursuant to Pt 6, r 6.32 of the Uniform Civil Procedure Rules 2005 I substitute Brendan Lantry as the first respondent in the proceedings in place of Acrocert Pty Limited. (2)All documents served in the proceedings upon Acrocert Pty Limited are deemed to have been served upon Brendan Lantry and the notices of appearance filed on behalf of Acrocert Pty Limited is deemed to be an appearance on behalf of Brendan Lantry. (3)By consent I give leave pursuant to Pt 31, r 31.19 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matter pleaded in paragraph 25 of the applicants' Points of Claim dated 11 May 2012, as that matter is particularised in the letter dated 8 June 2012 from the applicants' solicitors to Laycock Solicitors (see Exhibit A). (4)I give leave pursuant to Pt 31, r 31.9 of the Uniform Civil Procedure Rules 2005 for the parties to adduce expert evidence directed to the interpretation of the plans that are the subject of Complying Development Certificate CD 11-1459 issued by the first respondent on 20 June 2011 and relevant to the matters pleaded in paragraphs 13 and 18 of the applicant's Points of Claim dated 11 May 2012. (5)Costs are reserved. (6)Orders otherwise in accordance with the Short Minutes of Order initialled by me and placed with the Court papers.
Catchwords:	PROCEDURE: - application for substitution of party pursuant to Pt 6 r 6.32 Uniform Civil Procedure Rules 2005 - application by consent - substitution order granted - liability and conduct of original party transferred to substituted party EVIDENCE: - expert evidence - application to adduce expert evidence in judicial review proceedings - whether leave should be granted pursuant to Pt 31 r 31.19 of The Uniform Civil Procedure Rules 2005 - whether expert evidence reasonably required - expert evidence reasonably required - leave granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Anchor Mortlock Murray and Woolley Pty Ltd v Hooker Homes Pty Ltd (1971) 2 NSWLR 278 Friends of King Edward Park v Newcastle City Council [2012] NSWLEC 113 Shellharbour City Council v Minister for Planning [2011] NSWCA 195 ULV Pty Ltd v Scott (1990) 69 LGRA 212
Category:	Procedural and other rulings
Parties:	Andrew Eddy Bright (First applicant) Mark William Deller (Second applicant) Acrocert Pty Ltd (First respondent) Robert and Sara Jakes (Second respondent) Helen Lynette Asimus (Third respondent)
Representation:	T G Howard (Applicants) C R Ireland (First respondent) S B Nash (Second and Third respondents) Mallik Rees Lawyers (First and Second…