Caverstock Group Pty Limited v Minister for Planning

[2008] NSWLEC 225

Land and Environment Court

of New South Wales

CITATION:	Caverstock Group Pty Limited v Minister for Planning [2008] NSWLEC 225
PARTIES:	APPLICANT Caverstock Group Pty Limited RESPONDENT Minister for Planning
FILE NUMBER(S):	10448 of 2008
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- ex parte application for freezing order
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s96 Land and Environment Court Act 1979 s39A Uniform Civil Procedure Rules 2005 Pt 25 r 25.11, r 25.13
DATES OF HEARING:	4 July 2008
EX TEMPORE JUDGMENT DATE:	4 July 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr J Ayling SC SOLICITOR Mallesons Stephen Jaques RESPONDENT No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

4 July 2008

10448 of 2008 Caverstock Group v Minister for Planning

EX TEMPORE JUDGMENT

1 Her Honour: I have before me an urgent ex parte motion filed today seeking an order as set out in the motion, that:

Until further order, pursuant to Part 25.11 of the Uniform Civil Procedure Rules 2005, Newcastle City Council by itself, its officers, employees, agents or otherwise, be restrained from transferring, disposing of, or dealing with money obtained by it having on 23 June 2008 called upon the Commonwealth Bank to transfer money to its account under a bank guarantee delivered by the Applicant to the First Respondent on 21 December 2007.

The other orders sought in the motion are not pressed today.

2 The application has been supported by two affidavits of Mr Causer, the Applicant’s solicitor, both sworn today which I have given leave to file in Court. The relevant background which has been explained by Mr Ayling is as set out in those affidavits. The case essentially concerns a payment of money by the Applicant ultimately to the Newcastle City Council under the terms of a development consent issued by the Minister to the Applicant. These are Class 1 proceedings seeking a modification under s 96 of the Environmental Planning and Assessment Act 1979 of the condition of consent concerning the payment of that money, seeking a variation of the condition which would result in part or all of the money being refunded to the Applicant.

3 The second affidavit of Mr Causer sets out correspondence with Newcastle City Council’s solicitors which confirms that an undertaking was sought by the Applicant’s solicitor from the Council’s solicitors by 2pm today asking them to preserve in their account the money in issue, which undertaking has not been forthcoming.

4 I note that an order is being sought under Pt 25 r 25.11 of the Uniform Civil Procedure Rules 2005. That specifically provides for an order to freeze assets such as the order sought before me without the relevant Respondent being before the Court. Further under r 25.13, it is contemplated that an entity that is not a party in the proceedings may be the subject of such an order. The motion seeks orders in relation to Newcastle City Council who is not a party in these proceedings, the Respondent being the Minister for Planning.

5 Having heard Mr Ayling’s submissions, I consider I should make orders in the terms sought in order 1 in the motion filed today with the return of that order being next Tuesday before the duty judge at a time to be advised. There is a serious question to be tried in relation to the money in issue in that it is central to the Applicant’s s 96 modification application. If not preserved the utility of the proceedings is lost to the Applicant. I therefore order that the matter be stood over to Tuesday 8 July and make an order for service of these orders by facsimile today.