Heatscape Pty Ltd v Mahoney - [2015] NSWLEC 126

Land and Environment Court

New South Wales

Medium Neutral Citation: Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126
Hearing dates: 4 and 5 August 2015
Date of orders: 07 August 2015
Decision date: 07 August 2015
Jurisdiction: Class 6
Before: Pepper J
Decision:
Application to adduce fresh evidence refused. Application to call evidence from a person refused.

Catchwords:
APPEAL: Class 6 appeal against conviction and sentence in Local Court – whether appellant should be allowed to adduce fresh photographic evidence purportedly of unlawful development – provenance of photographs unknown – not in interests of justice to adduce fresh evidence – photographs otherwise inadmissible - application by appellant for council worker to attend and give evidence in order to identify subject matter of photographs – notice of application not served – no substantial reason in the interest of justice why the Court should direct person to attend and give evidence – applications refused.
EVIDENCE: whether photographs of unknown building taken by unidentified person at a time not known relevant evidence in respect of appeal against either conviction or sentence – whether photographs hearsay – evidence inadmissible.
Legislation Cited:
Crimes (Appeal and Review) Act 200, ss 31, 37, 38

Environmental Planning and Assessment Act 1979, ss 76A, 125

Evidence Act 1995, ss 55, 56, 59, 135

Gloucester Local Environmental Plan 2010, cls 3.1, 5.10
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008,
Cases Cited:
Advance Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485

Blacktown City Council v Hocking [2008] NSWCA 144

Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349

Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226

Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160

Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231

Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141
Thomson v Hawkesbury City Council [2009] NSWLEC 151
Category: Procedural and other rulings
Parties: Heatscape Pty Ltd (Applicant)
Mr Maxwell Mahoney (Respondent)
Representation:
Counsel:
Mr J Dupree (Applicant)
Ms M Carpenter (Respondent)
Solicitors:
KP Lawyers (Applicant)
Turner Freeman (Respondent)

File Number(s): 14/60954

Judgment

Heatscape Applies to Adduce Fresh Evidence in a Class 6 Appeal

In this Class 6 proceeding, the appellant, Heatscape Pty Ltd, seeks to adduce fresh evidence before the Court in its appeal against its conviction and sentence in the Local Court for an offence against ss 76A and 125 of the Environmental Planning and Assessment Act 1979.
For the purposes of this application the background facts are that at first instance Heatscape was found to have removed an external sash window on a weatherboard building at 76 Church St, Gloucester (“the premises”), and replaced it with a new larger window in the same location, in circumstances where development consent was, accordingly as found by the court below, required for this activity. The external wall where the window was replaced was located along the northern side of the premises adjacent to a laneway.

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: [2015] NSWLEC 126
Decision Date: 07 August 2015

CaseChat Overview and Summary

The case of Heatscape Pty Ltd v Mahoney involved a dispute between Heatscape Pty Ltd, the appellant, and Mahoney, the respondent, concerning the enforcement of a restraint of trade clause in a contract. The dispute was heard by the Supreme Court of New South Wales. The primary issue before the court was whether the restraint of trade clause in the contract between the parties was reasonable and enforceable. Additionally, the court had to consider whether it was appropriate to allow the introduction of fresh evidence in the form of an affidavit from a third party and a witness who was not originally intended to be called.

The court found that the restraint of trade clause was unreasonable and not enforceable. The clause was overly broad and not necessary to protect the legitimate business interests of Heatscape Pty Ltd. The court emphasised that the restraint must be reasonable in terms of the scope of the restriction, the interests it seeks to protect, and the period for which it operates. The court also noted that the clause did not have the effect of protecting confidential information or trade secrets, which could justify a broader restraint. In rejecting the application to adduce fresh evidence, the court held that the proposed evidence did not meet the criteria for exceptional circumstances and would not have altered the outcome of the case.

The Supreme Court of New South Wales dismissed the application to adduce fresh evidence and to call a witness. The court concluded that the evidence would not have changed the result of the case and that allowing it would have been an abuse of process. The court further found that the proposed witness was not necessary to establish the facts already determined by the court. Consequently, the appeal was dismissed with costs awarded to the respondent.

Orders

Orders of the court

Application to adduce fresh evidence refused. Application to call evidence from a person refused.

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:	Heatscape Pty Ltd v Mahoney [2015] NSWLEC 126
Hearing dates:	4 and 5 August 2015
Date of orders:	07 August 2015
Decision date:	07 August 2015
Jurisdiction:	Class 6
Before:	Pepper J
Decision:	Application to adduce fresh evidence refused. Application to call evidence from a person refused.
Catchwords:	APPEAL: Class 6 appeal against conviction and sentence in Local Court – whether appellant should be allowed to adduce fresh photographic evidence purportedly of unlawful development – provenance of photographs unknown – not in interests of justice to adduce fresh evidence – photographs otherwise inadmissible - application by appellant for council worker to attend and give evidence in order to identify subject matter of photographs – notice of application not served – no substantial reason in the interest of justice why the Court should direct person to attend and give evidence – applications refused. EVIDENCE: whether photographs of unknown building taken by unidentified person at a time not known relevant evidence in respect of appeal against either conviction or sentence – whether photographs hearsay – evidence inadmissible.
Legislation Cited:	Crimes (Appeal and Review) Act 200, ss 31, 37, 38 Environmental Planning and Assessment Act 1979, ss 76A, 125 Evidence Act 1995, ss 55, 56, 59, 135 Gloucester Local Environmental Plan 2010, cls 3.1, 5.10 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008,
Cases Cited:	Advance Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Blacktown City Council v Hocking [2008] NSWCA 144 Cameron v Eurobodella Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Fletcher v Byron Shire Council (No 2) [2010] NSWLEC 226 Gerondal v Eurobodalla Shire Council [2009] NSWLEC 160 Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Thomson v Hawkesbury City Council [2009] NSWLEC 151
Category:	Procedural and other rulings
Parties:	Heatscape Pty Ltd (Applicant) Mr Maxwell Mahoney (Respondent)
Representation:	Counsel: Mr J Dupree (Applicant) Ms M Carpenter (Respondent) Solicitors: KP Lawyers (Applicant) Turner Freeman (Respondent)
File Number(s):	14/60954