Gazcorp Pty Ltd v Westfield Management Pty Ltd & Anor

Gazcorp Pty Ltd appealed to the Supreme Court of New South Wales, Court of Appeal, against orders made by the primary judge concerning the use of a property at Warwick Farm. The dispute centred on whether the use of the property as a warehouse clearance outlet constituted a "shop" within the meaning of the relevant Local Environmental Plan (LEP), and whether it was a form of development not referred to in the instrument. The primary judge had granted injunctive relief restraining Gazcorp from using the property as a shop otherwise than in accordance with a specific development consent.

The Court of Appeal was required to determine the proper construction of the LEP, specifically whether a warehouse clearance outlet fell within the definition of a "shop" or was a form of development "not referred to" in the instrument. Additionally, the court considered whether the primary judge had erred in declining to grant a longer stay of the injunctive relief than the 28 days initially ordered.

The Court of Appeal found that the primary judge had correctly construed the LEP and that the use of the property as a warehouse clearance outlet did not fall within the category of development "not referred to" in the instrument. The court reasoned that the LEP's classification of development was exhaustive, and that a warehouse clearance outlet was a type of shop. However, the court allowed the appeal in part to reformulate the injunctive orders to ensure clarity and precision regarding the permitted use of the property. The court also varied the stay of the injunctive relief.

The Court of Appeal ordered that the appeal be allowed to the extent of reformulating the orders made by the primary judge, but otherwise dismissed the appeal. The original orders (2) and (3) were set aside and replaced with new orders. These new orders restrained the first respondent from using the property for the purpose of a shop otherwise than in accordance with the existing development consent or any other valid consent. The operation of this substituted order was stayed for 28 days from the date of the judgment, and Gazcorp Pty Ltd was ordered to pay the respondents' costs.