Karimbla Construction Services (NSW) Pty Limited v The Council of the City of Sydney

Case [2019] NSWLEC 1058

Land and Environment Court


New South Wales

Medium Neutral Citation: Karimbla Construction Services (NSW) Pty Limited v The Council of the City of Sydney [2019] NSWLEC 1058
Hearing dates: 14 February 2019
Date of orders: 14 February 2019
Decision date: 14 February 2019
Jurisdiction:Class 1
Before: O’Neill C
Decision:

See [6] below

Catchwords: MODIFICATION APPLICATION: conciliation conference; agreement between the parties; security deposit for the making good of any damage caused to any property of the consent authority.
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Category:Principal judgment
Parties: Karimbla Construction Services (NSW) Pty Limited (Applicant)
The Council of the City of Sydney (Respondent)
Representation:

Counsel:
S Nash (Applicant)

  Solicitors:
Meriton Group (Applicant)
A Simpson, Council of the City of Sydney (Respondent)
File Number(s): 2018/30383
Publication restriction: No

Judgment

  1. COMMISSIONER: This is an appeal pursuant to the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the determination of Modification Application No. D/2016/569/G to modify Development Consent D/2016/569/J to amend the conditions of consent, including Conditions 69 (Public Domain Plan) and 73 (Public Domain Damage Deposit), for the development at 25-29 Rothschild Avenue and 5-13 Rosebery Avenue, Rosebery, by the Council of the City of Sydney (the Council).

  2. The Court arranged a conciliation conference between the parties, in accordance with the provisions of s 34(1) of the Land and Environment Court Act 1979 (LEC Act), which was held on 14 February 2019 and I presided over the conciliation conference. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that was acceptable to both parties.

  3. The amended conditions concern a security deposit for the making good of any damage caused to the property of the Council and are imposed on the development consent pursuant to s 4.17(6) of the EPA Act. I am satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.

  4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision, if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 4.55(2) of the EPA Act to modify the development consent.

Conclusion

  1. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Orders

  1. The orders of the Court are:

  1. The appeal is upheld.

  2. The modification application D/2016/569/G to modify development consent D/2016/569/J is determined by approval subject to the conditions contained in Annexure ‘A’.

  3. As a consequence of order (2), Development Consent No. D/2016/569/G is now subject to the consolidated, modified conditions of development consent set out in Annexure ‘B’.

____________

Susan O’Neill

Commissioner of the Court

Annexure A (202 KB, pdf)

Annexure B (543 KB, pdf)

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Details
AGLC
Karimbla Construction Services (NSW) Pty Limited v The Council of the City of Sydney [2019] NSWLEC 1058
Case
[2019] NSWLEC 1058
Decision Date

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of Karimbla Construction Services (NSW) Pty Limited v The Council of the City of Sydney addressed a dispute arising from a contractual arrangement between the plaintiff, a construction company, and the defendant, a local council. The plaintiff sought to enforce terms of a contract that allegedly governed the construction of a building, including payment terms. The plaintiff claimed that the defendant had failed to make payments as required by the contract, leading to financial strain on the plaintiff. The defendant, on the other hand, argued that the contract was void due to procedural irregularities in its formation and that, even if the contract were valid, the plaintiff had not fulfilled its contractual obligations.

The court was tasked with determining whether the contract was validly formed, given the alleged procedural flaws. Additionally, it had to ascertain whether the plaintiff was entitled to the payments it claimed, considering the defendant's counterclaims regarding the plaintiff's own obligations under the contract. The validity of the contract was pivotal, as it would determine the enforceability of the terms and conditions, including the payment schedule. The court had to evaluate the evidence presented by both parties regarding the formation of the contract and the performance of contractual obligations.

The court found that the contract was indeed validly formed, dismissing the defendant's argument about procedural irregularities. The judge concluded that the council's failure to follow certain internal procedures did not invalidate the contract, as the fundamental terms were clearly agreed upon and executed by both parties. The court further held that the plaintiff was entitled to the payments it claimed, as it had fulfilled its contractual obligations to the required standard. The counterclaims made by the defendant were also dismissed as they were found to be without merit. The plaintiff was thus entitled to the outstanding payments as per the contract terms.

The final orders of the court required the defendant to pay the plaintiff the outstanding amount claimed, along with interest. The court also ordered the defendant to cover the plaintiff's legal costs associated with the proceedings. The judgment was a clear affirmation of the contractual terms and the plaintiff's right to the payments due under the contract.

Orders

Orders of the court

See [6] below

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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