Davey v North Sydney Council - [2002] NSWSC 662

CITATION: Davey v North Sydney Council [2002] NSWSC 662

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 5131/01

HEARING DATE(S): Friday, 19 April 2002

JUDGMENT DATE: 26 July 2002

PARTIES :

Leath Glenbury Davey (Plaintiff)
North Sydney Council (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : S. Burchett (for Plaintiff)
M. Allars (for Defendant)

SOLICITORS: Cowley Hearne Lawyers (for Plaintiff)
Mallesons Stephen Jaques (for Defendant)

CATCHWORDS: Practice and Procedure - Cross-claim by Defendant against an entity which is not the Plaintiff - Application by Defendant for leave to cross-claim - Requirement that nature of cross-claim be told to the Court as soon as may be practicable - Plaintiff claims payment to her by Defendant of compensation for compulsory acquisition of land in amount determined by Valuer General - Defendant disagrees with amount so determined - Defendant seeks by proposed cross-claim to challenge validity and efficacy of that determination - Whether the Court in the exercise of its discretion should grant that leave - Whether proposed cross-claim discloses a reasonable cause of action - Whether proposed cross-claim is in a form which, if filed, would be liable to be struck out as embarrassing - Relevance of conduct of Defendant preceding the institution of proceedings - Whether Defendant in seeking leave approaches the Court with clean hands - Any dispute in respect to proposed cross-claim is a dispute in which the Plaintiff could have no practical participation - Conduct of Defendant is in contravention of legislative scheme disclosed in Land Acquisition (Just Terms Compensation) Act 1991 - True complaint of Defendant is its disagreement with the valuation performed by the Valuer General - Any challenge to the validity and efficacy of the Valuer General's determination must not be allowed to drift into an attack on the merits of the impugned decision - Exercise of Court's discretion to grant leave sought - Prejudice to Plaintiff - Application by Plaintiff for summary judgment - Defendant does not dispute factual basis of relief sought by Plaintiff.

LEGISLATION CITED: Land Acquisition (Just Terms Compensation) Act 1991
Land and Environment Court Act 1979

CASES CITED: AMP Fire and General Insurance Company Ltd v Dixon [1982] VR 833
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR
Gosford County Council v Cunningham (29 April 1997, unreported)
Hoffman-La Roche v Trade Secretary [1975] AC 295
National Mutual Holdings Pty Ltd v Sentry Corporation Inc. (1989) 22 FCR 209
Ousley v The Queen (1997) 192 CLR 69

DECISION: See paragraph 72.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 26 July 2002

5131/01 LEATH GLENBURN DAVEY -V- NORTH SYDNEY COUNCIL

JUDGMENT

1 MASTER: There are presently before the Court two notices of motion. The first was filed by the Defendant, North Sydney Council, on 3 December 2001. By that notice of motion the Defendant claims, substantively, an order that leave be granted to it to file a cross-claim in the form of the document…

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 Davey v North Sydney 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: [2002] NSWSC 662
Decision Date: 26 July 2002

CaseChat Overview and Summary

The case of Davey v North Sydney Council involved a dispute concerning the compensation payable for the compulsory acquisition of land. The defendant, North Sydney Council, was required to compensate the plaintiff, Davey, for her land but disagreed with the amount determined by the Valuer General. The Council sought to challenge the validity and efficacy of the Valuer General's determination through a proposed cross-claim against an entity other than the plaintiff. The primary legal issue before the court was whether the defendant should be granted leave to file this cross-claim against a third party not originally a party to the proceedings.

The court considered several factors in determining whether to grant the defendant's application for leave to cross-claim. These included whether the proposed cross-claim disclosed a reasonable cause of action, whether it was in a form that would be liable to be struck out as embarrassing, and the conduct of the defendant preceding the institution of proceedings. The court found that the defendant had not approached the court with clean hands and had acted in contravention of the legislative scheme established under the Land Acquisition (Just Terms Compensation) Act 1991. The court held that any dispute regarding the proposed cross-claim was one in which the plaintiff could have no practical participation, and the defendant's true complaint was its disagreement with the valuation performed by the Valuer General.

In exercising its discretion, the court decided not to grant the defendant leave to file the cross-claim. The court reasoned that any challenge to the validity and efficacy of the Valuer General's determination must not be allowed to drift into an attack on the merits of the impugned decision. Furthermore, the court noted the potential prejudice to the plaintiff if the cross-claim was allowed. In light of this, the court dismissed the defendant's application for leave to cross-claim. Additionally, the plaintiff's application for summary judgment was granted as the defendant did not dispute the factual basis of the relief sought by the plaintiff.

Orders