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Grace v Thomas Street Café Pty Ltd (No 2)

Grace v Thomas Street Café Pty Ltd (No 2)

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Case Copied 24 April 2008 23 min read

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New South Wales

Court of Appeal

CITATION: Grace & Anor v Thomas Street Café Pty Ltd & Ors (No 2) [2008] NSWCA 72
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): On the papers

JUDGMENT DATE:
24 April 2008

JUDGMENT OF: Spigelman CJ; Beazley JA; McClellan CJ at CL

DECISION: 1. Orders made by the Court on 12 December 2007 in this matter are vacated and the following orders made in their place
2. Appeal allowed
3. Set aside the orders made by the judge at first instance
4. Declare that the premises located at 2 Thomas Street, McMahons Point New South Wales do not enjoy the benefit of existing use rights with the meaning of s 106 of the Environmental Planning and Assessment Act 1979 for the purposes of a restaurant or café
5. The matter is remitted to the Land and Environment Court for determination of the orders that should be made on the appellants’ application for injunctive or other relief
6. The respondents (including North Sydney Council) are to pay the appellants’ costs of the appeal except in respect of such costs as were incurred in the preparation of the issue as to the relief by way of injunction or otherwise, if any, to which the appellants may be entitled. The costs of that issue are to be reserved pending its final determination, either by the Land and Environment Court or upon appeal from any such determination
7. The costs of the hearing at first instance before Lloyd J are to be in the determination of the trial judge on the remitted hearing
8. The parties are to pay their own costs of this Notice of Motion
9. The first, second and third respondents are to have a certificate under the Suitors' Fund Act 1951 if so entitled.

CATCHWORDS: COSTS - Uniform Civil Procedure Rules 2005 r 36.36 - application to set aside or vary a costs order – reopening of judgment or orders - COSTS - awarding or reserving costs of appeal where matter is to be remitted to trial judge - COSTS – calderbank offers – without prejudice correspondence - no specific form required - COSTS – calderbank offers – no specific offer made

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss s 81A, 101
Uniform Civil Procedure Act 2005, s 98
Uniform Civil Procedure Rules 2005, Pt 36 r 36.16(1)

CATEGORY: Consequential orders

CASES CITED: Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160
Brymount Pty Limited t/a Watson Toyota v Cummins; Young Shire Council v Cummins (No 2) [2005] NSWCA 69
Computer Machinery Co Ltd v Drescher [1983] 3 All ER 153; [1983] 1 WLR 1379
Cutts v Head [1984] 1 All ER 597; [1984] 2 WLR 349; [1984] Ch 290
De L v Director-General, Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207
Elite Protective Personnel Pty Ltd v Salmon…

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: [2008] NSWCA 72
Decision Date: 24 April 2008

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application to set aside or vary costs orders previously made. The dispute concerned whether certain premises enjoyed existing use rights for restaurant or café purposes under the *Environmental Planning and Assessment Act 1979* (NSW). The appellants sought to overturn a decision of the primary judge, while the respondents, including North Sydney Council, sought to uphold it.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the premises had existing use rights for a restaurant or café, and consequently, what orders should be made regarding the appeal and the costs of the proceedings. The Court also had to consider the implications of the absence of a formal Calderbank offer on the costs of the appeal.

The Court allowed the appeal, setting aside the orders of the primary judge. It declared that the premises did not have the benefit of existing use rights for a restaurant or café. The matter was remitted to the Land and Environment Court for determination of appropriate injunctive or other relief. The Court ordered that the respondents pay the appellants' costs of the appeal, with an exception for costs related to the issue of relief by way of injunction, which were reserved. The costs of the first instance hearing were to be determined by the trial judge on the remitted hearing, and the parties were to bear their own costs of the notice of motion.

Orders

Orders of the court

1. Orders made by the Court on 12 December 2007 in this matter are vacated and the following orders made in their place 2. Appeal allowed 3. Set aside the orders made by the judge at first instance 4. Declare that the premises located at 2 Thomas Street, McMahons Point New South Wales do not enjoy the benefit of existing use rights with the meaning of s 106 of the Environmental Planning and Assessment Act 1979 for the purposes of a restaurant or caf* 5. The matter is remitted to the Land and Environment Court for determination of the orders that should be made on the appellants' application for injunctive or other relief 6. The respondents (including North Sydney Council) are to pay the appellants' costs of the appeal except in respect of such costs as were incurred in the preparation of the issue as to the relief by way of injunction or otherwise, if any, to which the appellants may be entitled. The costs of that issue are to be reserved pending its final determination, either by the Land and Environment Court or upon appeal from any such determination 7. The costs of the hearing at first instance before Lloyd J are to be in the determination of the trial judge on the remitted hearing 8. The parties are to pay their own costs of this Notice of Motion.

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.

CITATION:	Grace & Anor v Thomas Street Café Pty Ltd & Ors (No 2) [2008] NSWCA 72 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	On the papers
JUDGMENT DATE:	24 April 2008
JUDGMENT OF:	Spigelman CJ; Beazley JA; McClellan CJ at CL
DECISION:	1. Orders made by the Court on 12 December 2007 in this matter are vacated and the following orders made in their place 2. Appeal allowed 3. Set aside the orders made by the judge at first instance 4. Declare that the premises located at 2 Thomas Street, McMahons Point New South Wales do not enjoy the benefit of existing use rights with the meaning of s 106 of the Environmental Planning and Assessment Act 1979 for the purposes of a restaurant or café 5. The matter is remitted to the Land and Environment Court for determination of the orders that should be made on the appellants’ application for injunctive or other relief 6. The respondents (including North Sydney Council) are to pay the appellants’ costs of the appeal except in respect of such costs as were incurred in the preparation of the issue as to the relief by way of injunction or otherwise, if any, to which the appellants may be entitled. The costs of that issue are to be reserved pending its final determination, either by the Land and Environment Court or upon appeal from any such determination 7. The costs of the hearing at first instance before Lloyd J are to be in the determination of the trial judge on the remitted hearing 8. The parties are to pay their own costs of this Notice of Motion 9. The first, second and third respondents are to have a certificate under the Suitors' Fund Act 1951 if so entitled.
CATCHWORDS:	COSTS - Uniform Civil Procedure Rules 2005 r 36.36 - application to set aside or vary a costs order – reopening of judgment or orders - COSTS - awarding or reserving costs of appeal where matter is to be remitted to trial judge - COSTS – calderbank offers – without prejudice correspondence - no specific form required - COSTS – calderbank offers – no specific offer made
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss s 81A, 101 Uniform Civil Procedure Act 2005, s 98 Uniform Civil Procedure Rules 2005, Pt 36 r 36.16(1)
CATEGORY:	Consequential orders
CASES CITED:	Baresic v Slingshot Holdings Pty Ltd (No 2) [2005] NSWCA 160 Brymount Pty Limited t/a Watson Toyota v Cummins; Young Shire Council v Cummins (No 2) [2005] NSWCA 69 Computer Machinery Co Ltd v Drescher [1983] 3 All ER 153; [1983] 1 WLR 1379 Cutts v Head [1984] 1 All ER 597; [1984] 2 WLR 349; [1984] Ch 290 De L v Director-General, Department of Community Services (NSW) (No 2) [1997] HCA 14; (1997) 190 CLR 207 Elite Protective Personnel Pty Ltd v Salmon…