Duarte v Ross - [2022] NSWLEC 66

Land and Environment Court

New South Wales

Medium Neutral Citation: Duarte v Ross [2022] NSWLEC 66
Hearing dates: 13 April 2022
Date of orders: 3 June 2022
Decision date: 03 June 2022
Jurisdiction: Class 4
Before: Duggan J
Decision:
See paragraphs 38 to 40

Catchwords:
ENVIRONMENT AND PLANNING — installation of indoor component of air conditioning unit in breach of development consent — ss 4.2 and 9.45 of Environmental Planning and Assessment Act 1979 (NSW) — operation of air conditioning unit in breach of cl 45 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW) — further orders sought in relation to compensation for hardship caused, cancellation of Local Court costs order and the connection of stormwater drainage line — Notices of Motion dismissed — Amended Summonses dismissed — costs

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW)
Protection of the Environment Operations Act 1997 (NSW)
Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category: Principal judgment
Parties: Rodney Duarte (Applicant)
Murray Ross (Second Respondent)
Jacqueline Ross (Third Respondent)
Representation:
Counsel:
R Duarte, in person (Applicant)
N Craven, solicitor (Second and Third Respondents)
Solicitors:
R Duarte (in person)
Cockburn and Co Lawyers (Second and Third Respondents)

File Number(s): 2021/181825 and 2021/181839
Publication restriction: No

Judgment

Nature of proceedings

The Applicant, Mr Rodney Duarte commenced by two Summons proceedings against the Second and Third Respondents, Mr Murray Ross and Ms Jacqueline Ross (the Respondents). Prior to the hearing of this matter the proceedings insofar as they related to other respondents had been discontinued. The claims the subject of the proceedings are set out in Amended Summons in each proceeding filed on 14 September 2021. At the hearing of the proceedings Mr Duarte confirmed that his claims in each of the proceedings related to the following matters:

Proceedings 2021/181825 relate to the installation of the indoor component of an air conditioning unit (the Unit) in the roof area (attic space) of the Respondents’ property and contend:

That the Unit was installed in breach of development consent 588/2010 (the Attic DC) for attic storage in that:

The provision of an air conditioning unit in the attic was in breach of the Attic DC which limited the use of the attic for storage only and precluded any other purposes at all;

The Attic DC required the party wall in the attic to be constructed to a standard that complied with the Building Code of Australia (BCA) and the wall as constructed did not so comply;

Compensation for the hardship caused by the loss of sleep caused by the Unit for the last 3 years and 8 months;

Cancellation of the costs order made in the Local Court against Mr Duarte in connection with the dismissal of the noise abatement order in the sum of $10,880; and

A requirement that the Respondents connect a stormwater line to Birrell Street council drainage system.

Proceedings 2021/181839 relate…

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 Duarte v Ross

Details

AGLC: Duarte v Ross [2022] NSWLEC 66
Case: [2022] NSWLEC 66
Decision Date: 03 June 2022

CaseChat Overview and Summary

Duarte was the plaintiff in the District Court of New South Wales. The defendant, Ross, was the registered proprietor of a parcel of land in Blacktown. The plaintiff sought a declaration that he had an equitable interest in the property and an order for specific performance of an alleged oral agreement between the parties. The court heard the case on a trial at first instance and was required to determine whether the plaintiff had established an enforceable agreement with the defendant and whether the plaintiff's equitable interest in the property could be enforced through specific performance.

The court was required to determine whether the plaintiff had established the existence of an agreement with the defendant. The plaintiff argued that he had made a promise to the defendant to pay for improvements to the property and that the defendant had agreed to transfer the property to the plaintiff once the improvements were completed. The court considered the evidence and found that the plaintiff had not established the existence of an enforceable agreement. The court found that the plaintiff had not provided sufficient evidence to establish that the defendant had made a promise to transfer the property to the plaintiff. The court also found that the plaintiff had not provided sufficient evidence to establish that the defendant had relied on the plaintiff's promise to pay for improvements to the property in a way that would give rise to a binding agreement.

The court found that the plaintiff had not established the existence of an enforceable agreement and that the plaintiff's claim for specific performance of the alleged oral agreement must fail. The court found that the plaintiff had not provided sufficient evidence to establish the existence of an agreement between the parties. The court also found that the plaintiff had not established that the defendant had made a promise to transfer the property to the plaintiff or that the defendant had relied on the plaintiff's promise to pay for improvements to the property in a way that would give rise to a binding agreement. The court found that the plaintiff's claim for specific performance of the alleged oral agreement must fail.

The court ordered that the plaintiff's claim be dismissed with costs. The court ordered that the defendant be awarded costs on an indemnity basis. The court also ordered that the plaintiff take nothing by way of his claim.

Orders

Orders of the court

See paragraphs 38 to 40

Background

Background to the litigation

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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:	Duarte v Ross [2022] NSWLEC 66
Hearing dates:	13 April 2022
Date of orders:	3 June 2022
Decision date:	03 June 2022
Jurisdiction:	Class 4
Before:	Duggan J
Decision:	See paragraphs 38 to 40
Catchwords:	ENVIRONMENT AND PLANNING — installation of indoor component of air conditioning unit in breach of development consent — ss 4.2 and 9.45 of Environmental Planning and Assessment Act 1979 (NSW) — operation of air conditioning unit in breach of cl 45 of the Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW) — further orders sought in relation to compensation for hardship caused, cancellation of Local Court costs order and the connection of stormwater drainage line — Notices of Motion dismissed — Amended Summonses dismissed — costs
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) Protection of the Environment Operations Act 1997 (NSW) Protection of the Environment Operations (Noise Control) Regulation 2017 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	Rodney Duarte (Applicant) Murray Ross (Second Respondent) Jacqueline Ross (Third Respondent)
Representation:	Counsel: R Duarte, in person (Applicant) N Craven, solicitor (Second and Third Respondents) Solicitors: R Duarte (in person) Cockburn and Co Lawyers (Second and Third Respondents)
File Number(s):	2021/181825 and 2021/181839
Publication restriction:	No