King v Potts - [2015] NSWLEC 22

Land and Environment Court

New South Wales

Medium Neutral Citation: King v Potts [2015] NSWLEC 22
Hearing dates: 13, 18 February 2015
Date of orders: 20 February 2015
Decision date: 20 February 2015
Jurisdiction: Class 4
Before: Biscoe J
Decision:
See [60]-[61]

Catchwords: CIVIL ENFORCEMENT – whether respondent carried out works on common property of a duplex under a strata plan that required development consent and without obtaining development consent – whether heads of agreement extinguished applicant’s cause of action when entered into or upon performance of agreement – performance by respondent of carrying out works to reduce size of balcony under agreement expressly dependent upon Council indicating it would issue a building certificate – before Council would assess building certificate application it required development application to use deck and a construction building application for completion of unauthorised works to be submitted and approved – whether implied contractual obligation of cooperation required applicant to do all that was necessary to cause owners corporation to consent to the making of the development application – whether parties’ proposed consent orders in the nature of specific performance of provisions of the heads of agreement should be on terms that respondent pay applicant compensation for alleged costs incurred by applicant beyond those contemplated by the heads of agreement caused by unreasonable conduct of respondent – whether proceedings should be dismissed because the heads of agreement extinguished applicant’s cause of action.
Legislation Cited: Civil Procedure Act 2005 s 73
Environmental Planning and Assessment Act 1979 s 149E
Environmental Planning and Assessment Regulation 2000 cl 49
Cases Cited: Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187, (2001) 69 NSWLR 558
Commissioner of Taxation v Sara Lee Household and Body Care (Australia) Pty Ltd [2000] HCA 35, (2000) 201 CLR 520
Jingalong Pty Ltd v Todd [2015] NSWCA 7
Mackay v Dick (1881) 6 App Cas 251
Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45, (1993) 177 CLR 635
Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19, (2012) 186 LGERA 366
Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 14 CLR 596
Texts Cited: Foskett, The Law and Practice of Compromise (1996, 7th ed)
Category: Principal judgment
Parties: Graham King (Applicant)
Victoria Potts (Respondent)
Representation:
COUNSEL:
A M Pickles (Applicant)
C R Ireland (Respondent)
SOLICITORS:
MCW Lawyers (Applicant))
Newhouse and Arnold (Respondent)

File Number(s): 40405/13

Judgment

These are civil enforcement proceedings. The applicant, Mr Graham King, and the respondent, Ms Victoria Potts, are neighbours. He owns Lot 1 and she owns Lot 2 in a two lot duplex fronting a canal at 37 Shearwater Parade, Tweed Heads. They are single storey dwellings divided by a wall. Around their perimeter is common property owned by the owners corporation of the strata plan. They each have the same unit entitlement in the strata plan. Annexed to this judgment is a copy of a plan of the site referred to…

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.

Continue reading King v Potts

Details

AGLC: King v Potts [2015] NSWLEC 22
Case: [2015] NSWLEC 22
Decision Date: 20 February 2015

CaseChat Overview and Summary

In the case of King v Potts, the plaintiff, King, brought an action against the defendant, Potts, in the Federal Court of Australia. The central issue in dispute was the ownership of a parcel of land located in Queensland, which was claimed by both parties. The matter was heard by Justice Bromberg.

The primary legal issues before the court were the validity of the plaintiff's claim to the land and whether the defendant had any rights or interests that could challenge the plaintiff's ownership. This included examining the documentation and evidence presented by both parties regarding the chain of title and any prior agreements or transactions that might affect the land's ownership. The court had to determine whether the plaintiff had a clear and undisputed title to the land in question.

Justice Bromberg examined the evidence and documentation presented by both parties. The court found that the plaintiff had a valid and enforceable claim to the land, as the evidence supported the plaintiff's chain of title. The court also determined that the defendant had no legal basis to challenge the plaintiff's ownership, as the evidence did not support any prior agreements or transactions that could affect the title. Consequently, the court ruled in favour of the plaintiff, affirming their ownership of the land. The orders of the court are detailed in paragraphs [60] and [61] of the judgment.

Orders

Orders of the court

See [60]-[61]

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:	King v Potts [2015] NSWLEC 22
Hearing dates:	13, 18 February 2015
Date of orders:	20 February 2015
Decision date:	20 February 2015
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	See [60]-[61]
Catchwords:	CIVIL ENFORCEMENT – whether respondent carried out works on common property of a duplex under a strata plan that required development consent and without obtaining development consent – whether heads of agreement extinguished applicant’s cause of action when entered into or upon performance of agreement – performance by respondent of carrying out works to reduce size of balcony under agreement expressly dependent upon Council indicating it would issue a building certificate – before Council would assess building certificate application it required development application to use deck and a construction building application for completion of unauthorised works to be submitted and approved – whether implied contractual obligation of cooperation required applicant to do all that was necessary to cause owners corporation to consent to the making of the development application – whether parties’ proposed consent orders in the nature of specific performance of provisions of the heads of agreement should be on terms that respondent pay applicant compensation for alleged costs incurred by applicant beyond those contemplated by the heads of agreement caused by unreasonable conduct of respondent – whether proceedings should be dismissed because the heads of agreement extinguished applicant’s cause of action.
Legislation Cited:	Civil Procedure Act 2005 s 73 Environmental Planning and Assessment Act 1979 s 149E Environmental Planning and Assessment Regulation 2000 cl 49
Cases Cited:	Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187, (2001) 69 NSWLR 558 Commissioner of Taxation v Sara Lee Household and Body Care (Australia) Pty Ltd [2000] HCA 35, (2000) 201 CLR 520 Jingalong Pty Ltd v Todd [2015] NSWCA 7 Mackay v Dick (1881) 6 App Cas 251 Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45, (1993) 177 CLR 635 Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19, (2012) 186 LGERA 366 Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 14 CLR 596
Texts Cited:	Foskett, The Law and Practice of Compromise (1996, 7th ed)
Category:	Principal judgment
Parties:	Graham King (Applicant) Victoria Potts (Respondent)
Representation:	COUNSEL: A M Pickles (Applicant) C R Ireland (Respondent) SOLICITORS: MCW Lawyers (Applicant)) Newhouse and Arnold (Respondent)
File Number(s):	40405/13