Diab v Cavasinni - [2019] NSWLEC 204

Land and Environment Court

New South Wales

Medium Neutral Citation: Diab v Cavasinni [2019] NSWLEC 204
Hearing dates: 24 December 2019
Date of orders: 24 December 2019
Decision date: 24 December 2019
Jurisdiction: Class 4
Before: Preston CJ
Decision:
The Court orders:
(1) The question of breach of the development consent and the Environmental Planning and Assessment Act 1979 is to be heard and determined separately from any other question, including the appropriate remedy and relief that should be granted by the Court in relation to any breach found.
(2) The separate question of breach, ordered in order 1, is to be heard and determined on the dates fixed for hearing on 3 and 4 February 2020.
(3) The respondents are to file and serve amended points of defence by 5pm 8 January 2020.
(4) The respondents are to file and serve any additional evidence on the separate question of breach by 15 January 2020.
(5) The applicant is to file and serve any evidence in response to the respondents’ evidence by 24 January 2020.
(6) The parties’ experts, grouped in each discipline, are to confer with a view to providing a joint expert report to the parties and the Court by 12 noon on 31 January 2020.
(7) The respondents are to take all reasonable steps to have any Class 1 appeal or application concerning their modification application heard and determined expeditiously.
(8) The respondents are to pay the applicant’s costs of the respondents’ notice of motion filed on 23 December 2019.

Catchwords: JUDGMENT AND ORDERS – application to vacate hearing dates – hearing on a separate question ordered on hearing dates – hearing dates not vacated – respondents to take all reasonable steps to have Class 1 appeal concerning modification application heard and determined expeditiously – respondents to pay the applicant’s costs of the motion
Legislation Cited: Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005
Category: Procedural and other rulings
Parties: Mrs Maria Cavasinni (First applicant on the Motion)
Mr Francesco Cavasinni (Second applicant on the Motion)
Mrs Dolly Diab (Respondent on the Motion)
Representation:
Counsel:
Mr J Doyle, with Mr R Kumar (Applicants on the Motion)
Mr J Hutton (Respondent on the Motion)
Solicitors:
DC Balog and Associates (Applicants on the Motion)
Sparke Helmore (Respondent on the Motion)

File Number(s): 2017/379855
Publication restriction: Nil

Judgment

By notice of motion filed 23 December 2019, the first and second respondents, Mr and Mrs Cavasinni, seek the vacation of the hearing dates of 3 and 4 February 2020 of the substantive proceedings. The applicant in the substantive proceedings, Mrs Dolly Diab, opposes the vacation of the hearing dates.
Mrs Diab commenced the proceedings on 15 December 2017. They are civil enforcement proceedings, in Class 4 of the Court’s jurisdiction, to remedy and restrain breaches of the Environmental Planning and Assessment Act 1979 resulting from Mr and Mrs Cavasinni, and the third respondent, Cavcorp Australia Pty Limited, carrying out a residential development on their…

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.

Continue reading Diab v Cavasinni

Details

AGLC: Diab v Cavasinni [2019] NSWLEC 204
Case: [2019] NSWLEC 204
Decision Date: 24 December 2019

CaseChat Overview and Summary

Diab v Cavasinni is a case before the Supreme Court of New South Wales in which the applicant, Diab, is seeking an injunction to prevent the respondents from proceeding with a proposed modification of a development consent. The dispute concerns alleged non-compliance with the Environmental Planning and Assessment Act 1979 and the development consent itself. The court was required to decide whether the matter of breach of the development consent and the Act should be heard and determined separately from other questions, including the appropriate remedy and relief.

The court considered the nature of the application and the need for an orderly and efficient progression of the case. It was noted that the application raised complex issues which would benefit from a structured approach. The court held that the question of breach should indeed be heard and determined separately from any other question, including the appropriate remedy and relief that should be granted by the Court in relation to any breach found. This decision was made to ensure a clear and focused determination of the issues at hand.

Consequently, the court ordered that the separate question of breach would be heard and determined on the dates fixed for hearing on 3 and 4 February 2020. Additionally, the court made several procedural orders, including timelines for filing and serving amended points of defence, additional evidence, and expert reports. The court also directed the respondents to take all reasonable steps to have any Class 1 appeal or application concerning their modification application heard and determined expeditiously. Finally, the court ordered the respondents to pay the applicant's costs of the respondents' notice of motion filed on 23 December 2019.

Orders

Orders of the court

The Court orders:

(1) The question of breach of the development consent and the Environmental Planning and Assessment Act 1979 is to be heard and determined separately from any other question, including the appropriate remedy and relief that should be granted by the Court in relation to any breach found.

(2) The separate question of breach, ordered in order 1, is to be heard and determined on the dates fixed for hearing on 3 and 4 February 2020.

(3) The respondents are to file and serve amended points of defence by 5pm 8 January 2020.

(4) The respondents are to file and serve any additional evidence on the separate question of breach by 15 January 2020.

(5) The applicant is to file and serve any evidence in response to the respondents’ evidence by 24 January 2020.

(6) The parties’ experts, grouped in each discipline, are to confer with a view to providing a joint expert report to the parties and the Court by 12 noon on 31 January 2020.

(7) The respondents are to take all reasonable steps to have any Class 1 appeal or application concerning their modification application heard and determined expeditiously.

(8) The respondents are to pay the applicant’s costs of the respondents’ notice of motion filed on 23 December 2019.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Diab v Cavasinni [2019] NSWLEC 204
Hearing dates:	24 December 2019
Date of orders:	24 December 2019
Decision date:	24 December 2019
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	The Court orders: (1) The question of breach of the development consent and the Environmental Planning and Assessment Act 1979 is to be heard and determined separately from any other question, including the appropriate remedy and relief that should be granted by the Court in relation to any breach found. (2) The separate question of breach, ordered in order 1, is to be heard and determined on the dates fixed for hearing on 3 and 4 February 2020. (3) The respondents are to file and serve amended points of defence by 5pm 8 January 2020. (4) The respondents are to file and serve any additional evidence on the separate question of breach by 15 January 2020. (5) The applicant is to file and serve any evidence in response to the respondents’ evidence by 24 January 2020. (6) The parties’ experts, grouped in each discipline, are to confer with a view to providing a joint expert report to the parties and the Court by 12 noon on 31 January 2020. (7) The respondents are to take all reasonable steps to have any Class 1 appeal or application concerning their modification application heard and determined expeditiously. (8) The respondents are to pay the applicant’s costs of the respondents’ notice of motion filed on 23 December 2019.
Catchwords:	JUDGMENT AND ORDERS – application to vacate hearing dates – hearing on a separate question ordered on hearing dates – hearing dates not vacated – respondents to take all reasonable steps to have Class 1 appeal concerning modification application heard and determined expeditiously – respondents to pay the applicant’s costs of the motion
Legislation Cited:	Civil Procedure Act 2005 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Mrs Maria Cavasinni (First applicant on the Motion) Mr Francesco Cavasinni (Second applicant on the Motion) Mrs Dolly Diab (Respondent on the Motion)
Representation:	Counsel: Mr J Doyle, with Mr R Kumar (Applicants on the Motion) Mr J Hutton (Respondent on the Motion) Solicitors: DC Balog and Associates (Applicants on the Motion) Sparke Helmore (Respondent on the Motion)
File Number(s):	2017/379855
Publication restriction:	Nil