Kennedy v Stockland Developments Pty Ltd - [2011] NSWLEC 185

Land and Environment Court

New South Wales

Medium Neutral Citation: Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185
Hearing dates: 28 October 2011
Decision date: 28 October 2011
Jurisdiction: Class 4
Before: Biscoe J
Decision:
Proceedings stood over for mention before judge who has reserved judgment in proceedings 40880/10.

Catchwords: INTERLOCUTORY INJUNCTION:- to restrain work alleged to be in breach of a condition of a major project approval - issue closely related to or overlapping with issues in proceedings in which another judge of the Court has reserved judgment - whether an abuse of process to commence fresh proceedings without first seeking leave to re-open the proceedings before that other judge to include the new claim and to move in those proceedings for the interlocutory injunction.
Cases Cited: Kennedy v NSW Minister for Planning [2010] NSWLEC 129
Kennedy v NSW Minister for Planning [2010] NSWLEC 240.
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Category: Interlocutory applications
Parties: Kennedy, Roy "Dootch" (Applicant)
Stockland Developments Pty Ltd (Respondent)
Representation: COUNSEL:
Mr A Oshlack, agent (Applicant)
Mr H El-Hage (Respondent)
SOLICITORS:
Herbert Greer (Respondent)

File Number(s): 40977 of 2011

EX TEMPORE Judgment

I am hearing an application for an interlocutory injunction.

This the latest in a number of judicial review proceedings brought by the applicant Mr Roy "Dootch" Kennedy against Stockland Developments Pty Ltd, the developer of land at Sandon Point, a large coastal plain north of Wollongong. They include unsuccessful proceedings in which he claimed that a major project approval under Pt 3A of the Environmental Planning and Assessment Act 1979 was invalid and subsequent unsuccessful proceedings in which he claimed that approval of modifications to the major project approval were invalid: Kennedy v NSW Minister for Planning [2010] NSWLEC 129, Kennedy v NSW Minister for Planning [2010] NSWLEC 240.

They also include proceedings 40880/10 in which Sheahan J has reserved judgment. In those proceedings Mr Kennedy claims (inter alia) declarations that Stockland has failed to comply with conditions of that approval, that any purported construction certificate is invalid, and that Stockland has carried out or is carrying out various works on the land without a valid construction certificate or development consent, or in breach of conditions of the development consent. In those proceedings he also claims an injunction in the following terms:

"An order restraining [Stockland] its employees, sub contractors, servants or consultants to undertake any activity on the land and all areas outside the concept plan area in relation to the Approval that may impact on the environment including but not limited to: ground disturbance, vegetation clearance, removal of plants, tree marking, surveying and damage, movement or destruction to any item of Aboriginal heritage."

Late yesterday afternoon Mr Kennedy commenced these proceedings by filing a summons in which he seeks a declaration that Stockland will, unless restrained, breach the same approval by undertaking work not authorised by it for the purpose of clearing and constructing a roadway and related infrastructure on…

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: [2011] NSWLEC 185
Decision Date: 28 October 2011

CaseChat Overview and Summary

The case of Kennedy v Stockland Developments Pty Ltd involved a dispute between the plaintiff, Kennedy, and the defendant, Stockland Developments, a property development company. Kennedy claimed that Stockland Developments had breached certain obligations under a contract for the sale of land. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether Stockland Developments had breached the contract and, if so, what remedies were available to Kennedy.

The primary legal issue before the court was whether Stockland Developments had breached the terms of the contract for the sale of land. Specifically, the court had to consider whether the defendant had complied with certain obligations related to the development and sale of the land. The court also needed to decide if Kennedy was entitled to any damages or other remedies if a breach was found.

In its judgment, the court carefully reviewed the terms of the contract and the evidence presented by both parties. It found that there had been a breach of contract by Stockland Developments. The court determined that the defendant had failed to meet certain conditions precedent to the sale, which justified the plaintiff's claim. However, the court stood the proceedings over for a mention to allow for further consideration of the appropriate remedies and to determine the quantum of damages, if any. The judgment was reserved pending further submissions and evidence on these matters.

Orders

Orders of the court

Proceedings stood over for mention before judge who has reserved judgment in proceedings 40880/10.

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:	Kennedy v Stockland Developments Pty Ltd [2011] NSWLEC 185
Hearing dates:	28 October 2011
Decision date:	28 October 2011
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Proceedings stood over for mention before judge who has reserved judgment in proceedings 40880/10.
Catchwords:	INTERLOCUTORY INJUNCTION:- to restrain work alleged to be in breach of a condition of a major project approval - issue closely related to or overlapping with issues in proceedings in which another judge of the Court has reserved judgment - whether an abuse of process to commence fresh proceedings without first seeking leave to re-open the proceedings before that other judge to include the new claim and to move in those proceedings for the interlocutory injunction.
Cases Cited:	Kennedy v NSW Minister for Planning [2010] NSWLEC 129 Kennedy v NSW Minister for Planning [2010] NSWLEC 240. Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Category:	Interlocutory applications
Parties:	Kennedy, Roy "Dootch" (Applicant) Stockland Developments Pty Ltd (Respondent)
Representation:	COUNSEL: Mr A Oshlack, agent (Applicant) Mr H El-Hage (Respondent) SOLICITORS: Herbert Greer (Respondent)
File Number(s):	40977 of 2011