Fenwick v Woodside Properties Pty Ltd - [2016] NSWLEC 61

Land and Environment Court

New South Wales

Medium Neutral Citation: Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 61
Hearing dates: 25 May 2016
Date of orders: 27 May 2016
Decision date: 27 May 2016
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The Applicant is granted leave to rely on the second further amended summons marked annexure “C” to the affidavit of Ms Hill sworn 23 May 2016.

(2) The Applicant must file a redrafted amended points of claim no later than 4 pm Monday 30 May 2016.
(3) Exhibits are to be returned.
Catchwords: PROCEDURE – whether reasonable cause of action identified to justify leave being granted to amend pleadings – leave to amend pleadings partially granted
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 96, 124
Environmental Planning and Assessment Regulation 2000, cl 119
Civil Procedure Act 2005, s 64
Cases Cited: Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243
F Hannan (Properties) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 44
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hollis v Shellharbour City Council [2002] NSWLEC 83
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Mirvac Projects Pty Ltd v Ku-Ring-Gai Council [2007] NSWLEC 245
MLC Properties v Camden Council (1997) 96 LGERA 52
Swadling v Sutherland Shire Council (1994) 82 LGERA 431
Category: Procedural and other rulings
Parties: Christine Fenwick (Applicant)
Woodside Properties Pty Ltd (First Respondent)
Rochester Estate Pty Ltd (Second Respondent)
Wingecarribee Shire Council (Third Respondent)
Representation:
COUNSEL:
N Hammond (Applicant)
P Rigg (First & Second Respondents)
T To (Third Respondent)
SOLICITORS:
Hones Lawyers Pty Ltd (Applicant)
P Rigg (First & Second Respondents)
Swaab Attorneys (Third Respondent)

File Number(s): 2016/152445

Judgment

By Notice of Motion dated 23 May 2016 the Applicant seeks leave to rely on a second further amended summons marked annexure “C” to the affidavit of Ms Hill the Applicant’s solicitor sworn 23 May 2016 and amended points of claim dated 25 May 2016 handed up in court at 3 pm on the day of the hearing. A number of minor amendments are proposed and one ground relating to legitimate expectation is to be deleted. These changes are not opposed by the Respondents. The matter is set down for hearing on 8-9 June 2016. The Respondents oppose the substantial part of the amendments sought on the basis no cause of action is identified.
The Applicant commenced these proceedings to challenge two modifications, modifications 04/0353.01 (“mod 01”) and 04/0353.04 (“mod 04”). The Applicant now seeks leave to challenge a third modification being modification 04/0353.05 (“mod 05”). The three modifications (01, 04, 05) are modifications of a development consent granted by Wingecarribee Shire Council the Third Respondent (“the Council”) to the First and Second Respondents for a subdivision at Bundanoon.
Section 64 of the Civil Procedure Act 2005 (NSW) (“the CPA

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.

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Details

Case: [2016] NSWLEC 61
Decision Date: 27 May 2016

CaseChat Overview and Summary

In the matter of Fenwick v Woodside Properties Pty Ltd, the applicant sought leave to amend their summons for the second time in an attempt to improve their prospects of success. The dispute primarily revolved around the interpretation of a contract between the parties and the applicant's entitlement to certain benefits under that contract. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the applicant should be granted permission to amend their summons for the second time and, if so, under what conditions. The court had to weigh the applicant's right to amend their claim against the potential prejudice to the respondent if such an amendment was allowed. In making its decision, the court considered the overall progress of the case, the reasons for the proposed amendments, and the respondent's potential loss of time and resources.

The court granted the applicant leave to amend their summons for the second time, but with strict conditions to expedite the proceedings. The applicant was required to redraft their amended points of claim by a specified deadline and return the exhibits. This decision balanced the applicant's need to clarify their claim with the respondent's right to a timely and fair resolution of the dispute.

Orders

Orders of the court

(1) The Applicant is granted leave to rely on the second further amended summons marked annexure “C” to the affidavit of Ms Hill sworn 23 May 2016.

(2) The Applicant must file a redrafted amended points of claim no later than 4 pm Monday 30 May 2016.

(3) Exhibits are to be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 61
Hearing dates:	25 May 2016
Date of orders:	27 May 2016
Decision date:	27 May 2016
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Applicant is granted leave to rely on the second further amended summons marked annexure “C” to the affidavit of Ms Hill sworn 23 May 2016. (2) The Applicant must file a redrafted amended points of claim no later than 4 pm Monday 30 May 2016. (3) Exhibits are to be returned.
Catchwords:	PROCEDURE – whether reasonable cause of action identified to justify leave being granted to amend pleadings – leave to amend pleadings partially granted
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 96, 124 Environmental Planning and Assessment Regulation 2000, cl 119 Civil Procedure Act 2005, s 64
Cases Cited:	Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243 F Hannan (Properties) Pty Ltd v Council of the City of Sydney [2011] NSWLEC 44 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Hollis v Shellharbour City Council [2002] NSWLEC 83 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Mirvac Projects Pty Ltd v Ku-Ring-Gai Council [2007] NSWLEC 245 MLC Properties v Camden Council (1997) 96 LGERA 52 Swadling v Sutherland Shire Council (1994) 82 LGERA 431
Category:	Procedural and other rulings
Parties:	Christine Fenwick (Applicant) Woodside Properties Pty Ltd (First Respondent) Rochester Estate Pty Ltd (Second Respondent) Wingecarribee Shire Council (Third Respondent)
Representation:	COUNSEL: N Hammond (Applicant) P Rigg (First & Second Respondents) T To (Third Respondent) SOLICITORS: Hones Lawyers Pty Ltd (Applicant) P Rigg (First & Second Respondents) Swaab Attorneys (Third Respondent)
File Number(s):	2016/152445