Caverstock Group Pty Ltd v Minister for Planning (No.2)

[2008] NSWLEC 215

Set aside by Appeal: [2008] NSWCA 249

Land and Environment Court

of New South Wales

CITATION:

Caverstock Group Pty Ltd v Minister for Planning (No.2) [2008] NSWLEC 215

PARTIES:

APPLICANT
Caverstock Group Pty Ltd
RESPONDENT
Minister for Planning
RESPONDENT ON THE NOTICE OF MOTION
Newcastle City Council

FILE NUMBER(S):

10448 of 2008

CORAM:

Sheahan J

KEY ISSUES:

Interlocutory Relief :- freezing order; payment of money into the Court

LEGISLATION CITED:

Public Trustee Act 1913
Uniform Civil Procedure Rules 2005

CASES CITED:

Caverstock Group Pty Ltd v Minsiter for Planning [2008] NSWLEC 208

DATES OF HEARING:

24 July 2008

EX TEMPORE JUDGMENT DATE:

24 July 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Ayling SC
SOLICITORS
Mallesons Stephen Jaques

RESPONDENT
Mr M McDonald, Solicitor of Department of Planning

RESPONDENT ON THE NOTICE OF MOTION
Mr P Larkin
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

24 July 2008

10448 of 2008 Caverstock Group Pty Ltd v Minister for Planning (No.2)

EXTEMPORE JUDGMENT

1 His Honour: I delivered a judgment on 9 July 2008 granting to the Applicant in these proceedings a freezing order against Newcastle City Council in respect of funds Council obtained from the Applicant pursuant to Council calling up a bank guarantee. See judgment [2008] NSWLEC 208. I need not repeat here the background recounted in that judgment.

2 The Applicant has now pressed its Notice of Motion for an order that the disputed monies in this matter, frozen as a consequence of that order of 9 July, be paid into court to secure the Applicant’s position in regard to possibly seeking a refund.

3 The Council resists such an order, and indeed has asked me to discharge my orders of 9 July altogether. Given that I have today declined so to do, the Council now has asked me to substitute for my freezing order of 9 July an order requiring the Council to so organise its banking arrangements that the balance on its General Fund account will not fall below a credit balance equal to the amount of the disputed fund, namely $953,561.83, until further order.

4 I am satisfied that this Court has the power to direct the payment into Court of such an amount by the Council. I accept Mr Ayling’s submissions to this effect, relying upon Rules 25.3 and 41.1 to 41.8 of the Uniform Civil Procedure Rules 2005. He has made the entirely sensible suggestion that, in the event that I make such an order, once the Court receives the payment, the monies should be paid in turn to the Public Trustee to be invested pursuant to, or as if pursuant to, the provisions of s.36A of the Public Trustee Act 1913.

5 The tenor of Ms Simmons’ affidavit asserting on Council’s behalf some “ambiguity” in the freezing order, meaning that there has to be some doubt about the Council’s compliance with it, leaves me in no doubt at all that I should make the directions sought by Mr Ayling, rather than the order suggested by Mr Larkin.

6 I do so in the comfort that I can today also note Mr Ayling’s undertaking as to damages on behalf of the Applicant, in respect of the interlocutory relief the Court has so far granted, and is now about to grant, in favour of the Applicant against the Newcastle City Council.

7 The interests of all concerned appear to be more than adequately protected by what Mr Ayling has proposed, and I will give those directions namely:

(i) Direct the Respondent Newcastle City Council to pay into Court the sum of $953,561.83 by 4pm 28 July 2008.

(ii) Direct the Registrar within 24 hours of receipt of the said money to pay the same to the Public Trustee for payment into the common fund of the Public Trustee for investment pursuant to or as if pursuant to section 36A of the Public Trustee Act 1913.

8 Exhibit A1 may be returned.

9 There remains the outstanding question of the costs of this Notice of Motion.

10 [Counsel addressed on costs].

11 I order that the Respondent Newcastle City Council pay the Applicant’s costs of this motion, including those of the proceedings heard on 8 July 2008 and today, on a party/party basis, as agreed, or, in default of agreement, as assessed.