Lahoud v Hooper

[2016] NSWCA 11

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Lahoud v Hooper [2016] NSWCA 11
Hearing dates:	5 February 2016
Date of orders:	05 February 2016
Decision date:	05 February 2016
Before:	Meagher JA at [1] and [21]; Leeming JA at [2]
Decision:	(1) Dismiss the applicant’s summons seeking leave to appeal.  (2) Order that the applicant pay the respondent’s costs of that summons.
Catchwords:	PRACTICE – preliminary discovery – application for leave to appeal from decision refusing preliminary discovery – no question of principle
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 96 Uniform Civil Procedure Rules 2005 (NSW), r 5.2
Cases Cited:	John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 Lahoud v Hooper [2015] NSWSC 1026 The Age Company Ltd v Liu [2013] NSWCA 26; 82 NSWLR 268
Category:	Principal judgment
Parties:	Victor Lahoud (Applicant) John Hooper (Respondent)
Representation:	Counsel: J Hmelnitsky SC (Applicant) M R Elliott, J Curtin (Respondent)   Solicitors: McLachlan Thorpe Partners (Applicant) Minter Ellison (Respondent)
File Number(s):	2015/305913
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 1405 Date of Decision: 25 September 2015 Before: Adamson J File Number(s): 2015/241163

ex tempore Judgment

1. MEAGHER JA: I will ask Leeming JA to deliver the first judgment in relation to this application.

2. LEEMING JA: Mr Victor Lahoud seeks leave to appeal from the interlocutory decision of the primary judge (Adamson J) dismissing his summons seeking an order for preliminary discovery: Lahoud v Hooper (No 2) [2015] NSWSC 1405. It is possible to summarise the factual background concisely.

3. Companies associated with Mr Lahoud had a pending application under s 96 of the Environmental Planning and Assessment Act 1979 (NSW) (the Act) to modify an existing consent so as to permit the operation of a 24-hour a day gym on premises in a multi-storied, mixed use building on Sailors Bay Road, Northbridge. The application was advertised, and three occupants in the building (amongst others) supplied submissions objecting to it. Two council employees, who together constituted the Ward Inspection Committee, nevertheless recommended that the application be approved, subject to conditions.

4. On 24 October 2014, a meeting was held on the premises at which two members of the Ward Committee, including the respondent (a councillor), were present. The Committee announced at the conclusion of the meeting that it did not propose to approve the modification. The question then arose whether the application would be considered by a full Council meeting, a decision which would turn on the view of the Environmental Services Director. Later that afternoon, Mr Lahoud was told that the application would be referred to a full Council meeting the following Monday night. The primary judge found that, at this time, Mr Lahoud was of the view that the outcome of the s 96 application was “quite uncertain”.

5. On the following day, 25 October 2014, the respondent sent an email to the Council’s acting general manager…