Greater Taree City Council v Murowski Investments Pty Limited

[2010] NSWLEC 258

Land and Environment Court

of New South Wales

CITATION:

Greater Taree City Council v Murowski Investments Pty Limited [2010] NSWLEC 258

PARTIES:

APPLICANT
Greater Taree City Council

FIRST RESPONDENT
Murowski Investments Pty Limited

SECOND RESPONDENT
Hockitt Pastoral Company Pty Limited

FILE NUMBER(S):

40676 of 2010

CORAM:

Pepper J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application to strike out paragraphs of Class 4 pleadings pursuant to r 14.28 of the UCPR - application upheld in part - leave to amend granted

LEGISLATION CITED:

Civil Procedure Act 2005
Environmental Planning and Assessment Act 1979 ss 109E(3)(e) and 109J(1)(c)
Land and Environment Court Rules 2007 r 4.1
Uniform Civil Procedure Rules 2005 rr 14.1 and 14.28(1)

CASES CITED:

Commissioner for Railways v Bielewicz [1963] NSWR 482

DATES OF HEARING:

10 December 2010

EX TEMPORE JUDGMENT DATE:

10 December 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr P Clay with Mr R O'Gorman-Hughes
SOLICITORS
Stacks

RESPONDENTS
Mr J Ayling SC with Ms H Irish
SOLICITORS
Low Doherty & Stratford

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

10 December 2010

40676 of 2010 Greater Taree City Council v Murowski Investments Pty Limited & Hockitt Pastoral Company Pty Limited

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: Initially this matter came before the Court on a notice of motion filed by the applicant, Greater Taree City Council (“the council”), seeking to strike out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 (“UCPR”) certain paragraphs of the respondents’ points of defence and cross claim.

2 However, when the notice of motion came to be determined the respondents sought leave to file in Court a notice of motion seeking leave to amend their points of defence and cross claim as attached to that motion.

3 Leave was granted to file the notice of motion in Court. However, the council submitted that leave to amend ought not be granted by the Court because the amended points of defence and cross claim continued to contain deficiencies.

4 This judgment is a determination of the two notices of motion, in respect of which all parties have been partially successful.

Nature of the Dispute Between the Parties

5 The pleadings as filed revealed the following dispute between the parties. On 21 January 2003, the council granted development consent 1074/2002D (“the consent”) for the subdivision of the respondents’ property into eight lots. Condition 9 of the consent provided that an existing Crown road, Sunshine Road, was to be upgraded. The road was to be designed in accordance with the council’s AUSPEC No. 1 Design Manual to the standard of the Rural Subdivision Road, Local Miner, and approved plans.

6 On 10 October 2003, construction certificate 1074/2002D (“the construction certificate”) was issued in relation to the consent.

7 On 11 August 2004, the council issued a subdivision certificate in relation to the consent.

8 In September 2004 the respondents subdivided their property into eight lots purportedly pursuant to the consent.

9 The council alleges that the consent required Sunshine Road to be upgraded with a pavement comprising 100 mm of class 1 material and 240 mm of class 3 material and to conform with the requirements of AUSPEC No. 1 Design Manual and the plans approved prior to the issue of the subdivision certificate.

10 The council therefore alleges that the subdivision was not carried out in accordance with the consent because Sunshine Road was not upgraded to the standard and with the materials required by the conditions of consent. As a consequence, the council alleges that Sunshine Road suffers from pavement failures including rutting, erosion and potholes.

11 In addition to a declaration that the development was carried out by the respondents otherwise than in accordance with the consent, and therefore, in breach of the Environmental Planning and Assessment Act 1979 (“the EPAA”), the council also seeks an order that the respondents comply with the consent by reconstructing the Sunshine Road carriageway to the standard required by condition 9 of the consent.

12 In their filed points of defence, the respondents answer the council’s claims as summarised:

(a) first, the respondents deny that condition 9 of the consent has been breached; and

(b) second, the respondents state that, in effect, when the council, as consent authority, and later upon its appointment as principal certifying authority for the subdivision work, issued the construction certificate and the subdivision certificate, it represented to the respondents that the road had been built in conformity with the consent and that the conditions of the consent, including condition 9, had been complied with.

13 The council cannot now assert a breach of the consent by reason of any stated failure to satisfactorily complete the road works. To the extent that it seeks to do so, it is estopped.

14 The respondents in their cross claim seek a declaration that the council had breached ss 109E(3)(e) and 109J(1)(c) of the EPAA to the extent that the subdivision was not carried out in accordance with the consent. Further, if the subdivision was not carried out in accordance with the consent as alleged, then the respondents seek an order that they not be required to submit to any relief, or comply with any order of the Court, unless and until the council pays or contributes towards the cost of it having to do so.

Proposed Amended Points of Defence and Cross Claim

15 The proposed amended pleadings by the respondents did not seek to amplify or reduce the issues raised in the currently filed pleadings in any material way. Rather, the amendments sought to respond to defects previously identified by the council. In particular, the pleaded estoppel and the asserted breaches of ss 109E(3)(e) and 109J(1)(c) of the EPAA were pleaded with greater precision.

Statutory Framework

16 As at the date which the subdivision was permitted, ss 109E(3)(e) and 109J(1)(c) of the EPAA stated as follows:

109E Principal certifying authorities
(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:
(e) that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate.
109J Restriction on issue of subdivision certificates
(1) A subdivision certificate must not be issued for a subdivision unless the certifying authority is satisfied of each of the following:
(c) in the case of subdivision for which a development consent has been granted, that the applicant has complied with all conditions of the consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision,

17 Rule 14.28(1) of the UCPR states as follows:

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.

18 Rule 14.1 of the UCPR states, “this Part applies to proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed” (emphasis added).

19 Schedule 1 of the UCPR states that proceedings in Class 4 of this Court’s jurisdiction incorporate by way of practice and procedure all of the provisions of the Civil Procedure Act 2005 (“the CPA”) and the UCPR. Having said this, Sch 2 of the UCPR effectively states that the local rules of this Court prevail over those enacted in the UCPR.

20 The Land and Environment Court Rules 1996 were repealed by the passage of the Land and Environment Court Rules 2007 (“the 2007 Rules”). The 2007 Rules were enacted following the enactment of the UCPR to reflect the adoption in this Court of those harmonised civil procedure rules.

21 Rule 4.1 of the 2007 Rules states “this Part applies to proceedings in Class 4 of the Court’s jurisdiction.”

22 The Note to this rule provides as follows:

Note : Proceedings to which this Part applies are subject to the provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 . That Act and those rules refer to an applicant under these rules as a plaintiff and a respondent under these rules as a defendant. Under Part 4 of the Uniform Civil Procedure Rules 2005 , proceedings to which this Part applies are to be commenced by statement of claim or by summons.

23 The last sentence of the Note appears to suggest that proceedings to which Pt 4 of the 2007 Rules apply may be commenced only by statement of claim or by summons. However, proceedings in Class 4 of the Court’s jurisdiction are commenced not by statement of claim but are initiated by points of claim, together with a summons. The significance of this will be explained below.

Defects in the Proposed Amended Pleadings

24 The council complained about four defects in the proposed amended points of defence and cross claim that sought to be filed by the respondents. Some, but not all, of these defects currently exist in the points of defence and cross claim as filed.

25 First, the council submits that the respondents cannot simply “not admit” paragraph 11 of the points of claim filed 26 August 2010, in paragraph 11 of the defence. Paragraph 11 of the points of claim pleads that the subdivision was not carried out in accordance with the consent because of the failure by the respondents to upgrade Sunshine Road in accordance with the conditions attached to that consent.

26 The council submits that it should be told by the respondents whether or not paragraph 11 of the points of claim is incorrect by way of denial or whether the respondents are simply putting the council to strict proof in respect of the alleged failure to comply with the conditions of consent in relation to the construction of the road.

27 In reply the respondents submit that there is no practical difference between a denial of paragraph 11 of the points of claim and a refusal to admit. Moreover, they submit that as pleaded, there is nothing defective about the refusal to admit the allegation and that this would not provide a basis for striking out this paragraph of the proposed amended points of defence.

28 I agree. Provision for a non-admission is made in r 14.26 of the UCPR. It is a perfectly permissible traversal of an allegation. A statement of non-admission commonly indicates that the disputed fact is not within the party’s knowledge. Clearly enough where disputed facts are within a party’s knowledge then a denial is preferable. Further, because of the content of the verification required by r 14.23 of the UCPR, a respondent ought properly admit facts as to which there is no real dispute and if the fact alleged is known to be true, it is improper for a respondent to swear an affidavit verifying a defence which contains a statement of non-admission of that fact. However, the application of these principles does not, in the present case, permit the Court to strike out the non-admission of fact contained in paragraph 11 of the defence pursuant to r 14.28(1) of the UCPR.

29 Second, the council submits that the estoppel pleaded in paragraph 14A of the proposed amended defence is defective insofar as the essential elements of estoppel, namely, representation, reliance and detriment, have not been properly (or at all) pleaded. In particular, the council submits that the specific representations by the council and the respondents’ reliance on those specific representations must be pleaded in order for the council to know the case it must meet. Further, the council submits that there has been no articulation of the alleged detriment that the respondents have purportedly suffered which would entitle them to rely upon any estoppel.

30 In response, the respondents submit:

(a) that this Court is not a court of strict pleading and that, in any event, it is not clear if r 14.28 of the UCPR applies to proceedings filed in Class 4 of the Court’s jurisdiction because they are not commenced by a “statement of claim” but by points of claim;

(b) the representations are adequately articulated in the particulars to paragraph 14b of the proposed amended defence, namely, particulars (ii), (iii) and (iv);

(c) the reliance is manifest from the acts of the respondent in proceeding to subdivide the land and to complete the road works; and

(d) that while the respondents accept that detriment has not been expressly pleaded, again it is patently obvious from the terms of the cross claim, and in particular, from the relief sought by way of contribution towards any cost the respondents may incur in having to re-construct the relevant road.

31 I do not agree. First, I do not accept that the term “statement of claim” in r 14.1 of the UCPR should be strictly construed so as to exclude any reference to points of claim. To do so would result in absurdity, namely, that Pt 14 of the UCPR would not apply to the Court. Such a construction would not, moreover, promote the objects of the UCPR which are to harmonise the practice and procedure relating to civil proceedings in New South Wales in order to facilitate access to justice by the promotion of efficiency and the reduction of costs.

32 While the days of strict adherence to rigid rules of pleading have mercifully been relegated to history, it is nevertheless a fundamental rule of pleading that the party responding to the claim knows the case which must be met. This is nothing more than a rule of fairness.

33 A properly pleaded proceedings performs the function of briefly and explicitly stating the material factual allegations which support the claim. The pleading gives the respondent proper notice and the consequential opportunity to answer the claim. The requirement for precision in pleading complements other rules applicable to the Court designed to define the matters in issue and thereby promote the “just, quick and cheap” disposal of the matter (s 56 of the CPA).

34 In any event, the requirement for specific pleadings in respect of the allegations of fact relied upon to establish estoppel is nothing new (Commissioner for Railways v Bielewicz [1963] NSWR 482 at 486).

35 In the present case I accept that, at least for the purpose of this application, the representations relied upon by the applicant to found its estoppel claim, although not clearly expressed as such, are those contained in particulars (ii)-(iv) of paragraph 14b of the proposed amended points of defence. This is so notwithstanding that generally particulars do not constitute separate allegations of fact, even if set out in the body of the pleadings.

36 While somewhat embarrassing in the form in which they have been presented, I would not, on this basis alone, refuse leave to plead paragraph 14A due to a failure to properly articulate the representations relied upon provided that they were limited to only those contained in the particulars identified in paragraph 14b of the defence.

37 However, I accept as valid the complaint made by the council that there has been a failure to sufficiently plead the reliance by the respondents on those particularised representations. I also accept that the council is entitled to know with some precision the detriment said to have been suffered by the respondents as a consequence of relying on the representations identified.

38 In my view, these problems are not cured simply by reference to the relief sought in the points of claim. That, for instance, the council does not know how the respondents claim to have been disadvantaged by the council’s actions is not a mere technical deficiency. It is possible, for example, that the council may be able to adduce evidence to demonstrate that in reality a benefit was conferred, rather than any detriment imposed, on the respondents by the release of the construction certificate and the issue of the subdivision certificate.

39 For these reasons, therefore, leave ought to be refused to amend the points of defence to include paragraph 14A in its current form.

40 Third, the council submits that paragraph 17 of the proposed amended cross claim is defective because not only have the respondents pleaded the wrong version of s 109J(1)(c) in paragraph 17b, but the respondents have not specified the basis of the lack of satisfaction giving rise to an error by the council in issuing the subdivision certificate pursuant to s 109E(3)(e) of the EPAA in paragraph 17a.

41 It is clear that in pleading the current version of s 109J(1)(c) and not the version of that provision as it existed at the time the subdivision was permitted is an imperfection that would necessitate refusal to grant leave to amend in respect of that subparagraph. So much so is admitted by the respondents. It follows that leave must be refused to amend the cross claim to include paragraph 17b.

42 In respect of paragraph 17a of the proposed amended cross claim, I accept that there is some force in the submission of the council that a bald recitation of s 109E(3)(e) of the EPAA is insufficient to inform the council of the reasons why it is alleged that the council could not be satisfied that the preconditions required had not been met prior to the issuing of the subdivision certificate.

43 However, while criticism may be made of the failure of the respondents to properly particularise the preconditions required by the consent to be met and the basis upon which it is asserted that the council could not be satisfied that the preconditions had been met, in my view, in this regard sufficient information is contained within paragraph 17a that I am not inclined to refuse leave to amend the cross claim to exclude this allegation. Whilst inelegantly drawn, a reasonable reading of paragraph 17a of the proposed amended cross claim reveals that the precondition referred to is condition 9 of the consent and the very matters about which the council now complains in respect of the breach of that condition are the same matters founding, the respondents in effect plead, its lack of satisfaction.

44 Therefore leave is granted to amend the cross claim by the insertion of proposed paragraph 17a.

45 Fourth, the council submits that paragraph 18 as currently framed does not articulate the basis upon which the respondents are entitled to an order that the council pay or contribute towards the respondents’ costs of acceding to the relief, or complying with any orders that are made by the Court, assuming that the council is successful.

46 The respondents submit that paragraph 18 must be read in conjunction with paragraph 17 and that once this occurs, the basis upon which they are entitled to the relief claimed is revealed. That is to say, paragraph 18 of the proposed amended cross claim does not stand as a separate proposition.

47 I do not agree. As currently framed it does appear to stand alone. Furthermore, in my opinion, the council is entitled to know the legal basis upon which the right to relief is framed. The issue is not unimportant given the limited jurisdiction of this Court to provide monetary relief.

48 Thus as currently framed, the relief sought in paragraph 18 is inadequately pleaded and ought to be struck out.

Leave to Replead

49 With the exception of paragraph 17b of the proposed amended cross claim, while the respondents did not accept the criticisms levelled at their pleadings, they nevertheless accepted, that if found to be wanting by the Court that they would be amenable to an order permitting them to redraft the proposed amended points of defence and cross claim.

50 This suggested course was agreed to by the council and prudently so given that it facilitates the overriding purpose of the “just, quick and cheap resolution of the real issues in the proceedings” (s 56 of the CPA).

51 The Court therefore proposes to permit the respondents the opportunity of repleading. In so doing, it is hoped that the respondents will amend not only those paragraphs of the proposed amended pleadings to which leave to amend has not been granted, but that they will also seek to remedy the other valid, but not sufficiently fatal criticisms, made by the council of their pleadings.

Orders

52 The Court therefore makes the following orders:

(1) leave to amend the points of defence and cross claim is refused in respect of paragraph 14A of the proposed amended points of defence and paragraphs 17b and 18 of the proposed amended cross claim but is otherwise granted as sought in the respondents’ notice of motion filed on 10 December 2010;

(2) paragraph 18 of the cross claim is struck out;

(3) leave is granted to the respondents to replead the points of defence and cross claim;

(4) the respondents are to serve any further amended pleading in draft form on the council by no later than 23 December 2010;

(5) the council is to respond in writing to any further amended pleading served on it by the respondents by no later than 12 January 2011;

(6) order 2 of the council’s notice of motion filed on 1 December 2010 is stood over to 19 January 2011 before Pepper J;

(7) the costs of today are reserved to 19 January 2011 for hearing and determination before Pepper J; and

(8) any further application for leave to amend by the respondents is to be made before Pepper J on 19 January 2011. In this regard the Court dispenses with the need to file a notice of motion seeking leave to amend.


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