Burwood Council v Ralan Burwood Pty Ltd

[2014] NSWCA 106

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Burwood Council v Ralan Burwood Pty Ltd [2014] NSWCA 106

Hearing dates:

31/03/2014

Decision date:

31 March 2014

Before:

Leeming JA

Decision:

(1) Direct that Ralan file and serve by 9am Thursday 3 April 2014 a notice of motion, affidavit and submissions.

(2) Direct that the Council file and serve its submissions in response, and any evidence on which it seeks to rely in response, by 4pm Monday 7 April 2014.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE - case management - application for late filing of notice of objection to competency for want of parties - time limits on oral address

Legislation Cited:

Supreme Court Act 1970 (NSW), s 46(4)
Uniform Civil Procedure Rules 2005 (NSW), r 51.36

Cases Cited:

Ross v Lane Cove Council [2014] NSWCA 50

Category:

Interlocutory applications

Parties:

Burwood Council (appellant)
Ralan Burwood Pty Ltd (first respondent)
Lyall Ernest Dix (second respondent)
John Morgan (third respondent)
William Peter O'Dwyer (fourth respondent)
The Owners - Strata Plan No 88309 (fifth respondent)

Representation:

Counsel:
T Hale SC with S Nash (appellant)
P Tomasetti SC with J Johnson (first to fourth respondents)
Solicitors:
Houston Dearn O'Connor (appellant)
Storey & Gough (first to fourth respondents)

File Number(s):

2013/339576

 Decision under appeal 

Citation:

[2013] NSWLEC 173

Date of Decision:

2013-10-16 00:00:00

Before:

Sheahan J

File Number(s):

2013/40091

Judgment

1. LEEMING JA: This appeal has been case managed by me since December 2013. On 9 December 2013 the appeal was set down for hearing on 9 and 10 April 2014 (Wednesday and Thursday next week) over the opposition of the respondent (Ralan). Ralan's opposition was not based on any claimed inability to prepare the matter for hearing in the following four months. Rather it was said that it was an appeal that would take longer than two days. Against this, senior counsel for the appellant (Council) said that the appeal was important and urgent and, importantly, subjected himself to a time restriction for oral address.

1. Given that the appellant bears the burden of exposing the underlying facts and reasoning of the primary judge to this Court, which in this case includes a large redevelopment and its plans and specifications, as well as advancing submissions on the appeal, it seemed entirely probable to me that the complaint advanced on behalf of Ralan that it would take longer than two days should be discounted. That complaint was advanced prior to Ralan seeing Council's submissions on the appeal and prior to senior counsel for the Council subjecting himself to a time limitation.

1. Accordingly, on 9 December 2013 I put in place a timetable for submissions and appeal books with a case management directions hearing before me at 9.30 am on 5 March 2014 (after the parties' submissions had been filed). The directions made this note:

"Note that senior counsel for the appellant will complete oral submissions in chief on the appeal in no more than four hours, on the strength of which this appeal has been set down for hearing on 9 and 10 April 2014."

1. Those procedural directions were complied with or at least substantially complied with. On 5 March 2014 senior counsel for Ralan expressed what he called "grave concerns" as to whether the appeal could be heard and determined in two days. He did not apply for the appeal to be vacated. There was a minor amendment to the notice of appeal (which was not opposed) and a document was directed to be filed to respond to the appellant's Uniform Civil Procedure Rules 2005 (NSW), r 51.36 statement in order to assist the smooth running of the appeal. I granted liberty to approach my associate on 48 hours' notice in the event that any further application was required. I confess I had in mind that Ralan might obtain instructions to apply for the appeal to be vacated by motion supported by evidence (all of which were absent on 5 March 2014). In any event there is, in my view, good reason for any appeal listed for more than a day for the parties to be able to apply to a judge for directions if an issue arises; after all, what is at stake is at least six judge days and considerable inconvenience to the parties if the appeal cannot proceed.

1. The liberty I granted has been exercised but not in the way I intended. Ralan has approached my associate and there has been a hearing this morning directed ultimately, as clarified by Mr Tomasetti SC, for directions that he be permitted, late, to file a notice of motion objecting to competency. The reason for that motion is his submission that it was the obligation of Council to join most, if not all, registered proprietors and lessees of the lots in the strata plan, or at least those lots which are or might be adversely affected by the orders sought by Council on appeal. Mr Tomasetti relies upon this Court's decision in Ross v Lane Cove Council [2014] NSWCA 50, dealing with necessary and proper parties to enforcement proceedings in the Land and Environment Court. The position seems to be that the strata plan was lodged, and the new lots thereby created, after judgment was reserved by the primary judge and before judgment was delivered. Against that, it would seem that if Mr Tomasetti's point be correct, the same purchasers who had bought "off the plan" would also have been affected by the orders sought by Council when it approached the Court at first instance. The Council does not object to directions permitting the late filing of a motion objecting to the competency of this appeal (and, in my view, that stance is appropriate having regard to the issues now raised by Mr Tomasetti).

1. It is common ground at the Bar table that I ought not (and, indeed, probably lack power) to deal with this motion in advance of the appeal. I agree. The adjudication by me of the question of parties could itself be the subject of review pursuant to s 46(4) of the Supreme Court Act1970 (NSW) at the instance of the side which is dissatisfied by the outcome. Moreover, in terms of efficiency, it is, so far as I presently see it, far more desirable for this point, which turns upon the nature and likelihood of Council obtaining substantive orders (either from this Court, or on remitter by the primary Court where I have been told questions of discretion have not yet been determined) to take place in light of the submissions on the appeal.

1. I have expressed the view to the parties that, for reasons summarised above, an efficient way forward for the hearing of the appeal would be for Council to address first, thereby explaining the factual position to the Court, and indicating squarely, and, in light of the notice of objection to competency, what remedies it seeks either from this Court or from the Court below, and for Ralan then to advance argument on its notice of motion. However, it will of course be a matter for the Court as constituted next week to adjudicate what is the most fair and efficient way for the two day hearing to proceed. Mr Hale SC has, again (because I asked him to do so) confirmed that he will be able to complete his oral submissions on the appeal by 3.45pm on its first day.

1. There is the possibility that there will be inefficiency in the hearing of the appeal, to the extent that there is force in Ralan's motion. Views have been canvassed informally before me this morning as to that and one large issue which has been mentioned from the Bar table is the extent to which what Ralan now seeks is consistent or otherwise with its stance at first instance, when it applied for release from an undertaking proffered either by it or its principal, Mr O'Dwyer (I am not sure which) last year. That is a matter for determination by the Court of Appeal next week. Notwithstanding those doubts, I remain of the view that this appeal and the motion can be determined fairly within the two days that have been set down.

1. The only orders that I make today are:

(1)   Direct that Ralan file and serve by 9am Thursday 3 April 2014 a notice of motion, affidavit and submissions.

(2)   Direct that the Council file and serve its submissions in response, and any evidence on which it seeks to rely in response, by 4pm Monday 7 April 2014.

I make no order as to costs.

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Decision last updated: 03 April 2014