Built Development (Manly) Pty Ltd v Northern Beaches Council - [2018] NSWSC 750

Supreme Court

New South Wales

Medium Neutral Citation: Built Development (Manly) Pty Ltd v Northern Beaches Council [2018] NSWSC 750
Hearing dates: 21 May 2018
Decision date: 25 May 2018
Jurisdiction: Equity - Commercial List
Before: Ball J
Decision:
(1) Paragraphs 165, 167, 170 to 172, 178, 179 to 182, 183 to 186, 187 to 193, 196 to 228 and 232 of the Commercial List Response to the Amended Commercial List Statement be struck out;
(2) The defendant have leave to file an Amended Commercial List Response by 15 June 2018;
Catchwords: CIVIL PROCEDURE – Pleadings – Striking out – Failure to adequately particularise the pleaded facts – Failure to plead a logical connection between an allegation and the pleaded facts
Legislation Cited: Australian Consumer Law
Local Government (General) Regulation 2005 (NSW)
Category: Procedural and other rulings
Parties: Built Development (Manly) Pty Ltd (ACN 612 053 031) (First Plaintiff)
Athas Holdings Pty Limited (ACN 058 123 253) (Second Plaintiff)
Built Development Group Pty Ltd (ACN 600 541 231) (Third Plaintiff)
Northern Beaches Council (ABN 57 284 295 198) (Defendant)
Representation:
Counsel:
CH Withers with FT Roughley (Plaintiffs)
RJ Cheney SC with BAM Connell (Defendant)
Solicitors:
Corrs Chambers Westgarth (Plaintiffs)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2017/324554
Publication restriction: Nil

Judgment

By an Amended Notice of Motion filed on 21 May 2018, the plaintiffs seek to strike out certain paragraphs of the Commercial List Response (CLR) to the Amended Commercial List Statement (ACLS) pursuant to the inherent power of the Court.
In order to explain the issues raised by the motion, it is necessary to say something about the history of the proceedings.
As originally pleaded, the first plaintiff, Built Development (Manly) Pty Ltd (Built Manly), and the second plaintiff, (Athas Holdings Pty Ltd) (Athas) (together, the Developer) sought to recover damages from the defendant, the Northern Beaches Council, as the successor to the assets, rights and liabilities of the Manly Council, for what is said to be the wrongful repudiation of a Development Deed (the Deed) entered into on 27 April 2016 between Manly Council and the Developer relating to the redevelopment of a site occupied by the Whistler Street carpark and Manly Library (the Project). It will be convenient in this judgment to refer to the Manly Council and to the defendant, as its successor, as “the Council”.
By its Commercial List Response filed on 29 November 2017, the Council raised a number of defences to the Developer’s claim, one of which (pleaded in para 20) was that the Deed was invalid because:

it was not executed in accordance with subclause 400(2) of the Local Government (General) Regulation 2005 (NSW) (the Regulation) and, in particular was executed by Mr Henry Wong, Manly Council’s General Manager, pursuant to a delegated authority rather than in accordance with the requirements of subclause 400(2);

the Deed did not comply with subclause 178(2) of the Regulation because the tender…

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.

Keep reading for free

Create a free CaseChat account to read Built Development (Manly) Pty Ltd v Northern Beaches Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWSC 750
Decision Date: 25 May 2018

CaseChat Overview and Summary

The case of Built Development (Manly) Pty Ltd v Northern Beaches Council was heard by the Supreme Court of New South Wales. The dispute involved a claim by Built Development (Manly) Pty Ltd against Northern Beaches Council regarding alleged breaches of statutory duties under the Local Government Act 1993 (NSW). The plaintiff sought damages for alleged harm caused by the council's actions in relation to a development approval process.

The central legal issue before the court was whether the plaintiff's statement of claim adequately particularised the facts upon which the claim was based. Specifically, the court had to determine if the plaintiff's pleadings sufficiently connected the alleged breaches to the claimed damages and if the allegations were logically tied to the pleaded facts. The court also examined whether the plaintiff's failure to adequately particularise amounted to a defect that warranted striking out the claim.

The court held that the plaintiff's statement of claim did not adequately particularise the pleaded facts or demonstrate a logical connection between the alleged breaches and the claimed damages. The plaintiff's broad and vague allegations did not provide enough detail for the defendant to properly respond to the claims. The court found that the plaintiff's failure to adequately particularise the pleaded facts was a substantial defect, leading to the conclusion that the claim should be struck out. The court ordered the plaintiff to amend its statement of claim within a specified timeframe to include adequate particulars of the facts and a logical connection to the claimed damages. If the plaintiff failed to do so, the claim would be permanently struck out.

Orders