Glenayr Nominees Pty Ltd v Waverley Council

[2025] NSWSC 467

Supreme Court

New South Wales

Medium Neutral Citation:

Glenayr Nominees Pty Ltd v Waverley Council [2025] NSWSC 467

Hearing dates:

17 April 2025

Date of orders:

17 April 2025

Decision date:

17 April 2025

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) Pursuant to s 149B(1) of the Civil Procedure Act, the proceedings are transferred to be heard in the Class 4 jurisdiction of the Land and Environment Court.

(2) Each party is to pay its own costs of the proceedings in this Court prior to the transfer of the proceedings in this Court to the Class 4 jurisdiction of the Land and Environment Court.

Catchwords:

CIVIL PROCEDURE – transfer of proceedings – application to transfer proceedings from Supreme Court to Land and Environment Court – orders made

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 149B

Environmental Planning and Assessment Act 1979 (NSW), ss 5.5, 5.7

Category:

Procedural rulings

Parties:

Glenayr Nominees Pty Ltd (Plaintiff)
Waverley Council (Defendant)

Representation:

Solicitors:
Mills Oakley (Plaintiff)
Maddocks (Defendant)

File Number(s):

2025/00078521

Publication restriction:

Nil

REVISED EX Tempore JUDGMENT

1. These proceedings come before me by way of a motion filed on 6 March 2025 by the plaintiff seeking a transfer of the proceedings to the Land and Environment Court of NSW pursuant to s 149B(2) of the Civil Procedure Act 2005 (NSW). Ms Whitney appears for the plaintiff and Ms Sims appears for the defendant.

2. In support of the application, the plaintiff relies on an affidavit of Emma Kate Whitney dated 5 March 2025.

3. As set out in s 149B of the Civil Procedure Act, if the Supreme Court is satisfied that it is more appropriate for proceedings to be heard in the other court, that is the Land and Environment Court, it may, on the application of a party or its own motion, order that the proceedings be transferred to the other Court. In other words, the Court has power to order a transfer to the Land and Environment Court when that Court is a more appropriate Court.

4. The plaintiff commenced proceedings in this Court on 27 February 2025 against the defendant, Waverley Council (“the Council”). The plaintiff seeks damages for public and private nuisance arising out of work done by the Council adjacent to land owned by the plaintiff. It is said that the Council upgrade works caused the plaintiff to suffer loss and damage, and that the plaintiff is entitled to damages in nuisance.

5. The plaintiff has also commenced proceedings in the Land and Environment Court, having commenced those proceedings on 22 December 2023.

6. In those proceedings the plaintiff seeks a declaration against the Council, to the effect that the Council has carried out the upgrade works in breach of ss 5.5 and 5.7 of the Environmental Planning and Assessment Act 1979 (NSW) and that the Council carry out rectification works and such other works to prevent floodwaters entering the land.

7. As far as I can determine, the issues in both proceedings are somewhat similar. Both proceedings will involve a consideration of whether the Council was entitled to carry out the works, how the Council carried out the works and whether the plaintiff has suffered any loss or damage or infringement of its rights, having regard to the works.

8. All of those issues will arise in the nuisance claim and are likely to arise in the Land and Environment Court proceedings.

9. I am informed that the Land and Environment Court matter is proceeding to mediation shortly and that it would be anticipated that, if these proceedings were transferred to the Land and Environment Court, the parties would mediate both matters.

10. In all the circumstances, I am satisfied that it is appropriate to transfer these proceedings to the Land and Environment Court.

11. I will make the following orders:

1. Pursuant to s 149B(1) of the Civil Procedure Act, the proceedings are transferred to be heard in the Class 4 jurisdiction of the Land and Environment Court.

2. Each party is to pay its own costs of the proceedings in this Court prior to the transfer of the proceedings in this Court to the Class 4 jurisdiction of the Land and Environment Court.

**********

Decision last updated: 14 May 2025