Level Holdings Pty Ltd v Laurendi [No 2] - [2013] WADC 33

LEVEL HOLDINGS PTY LTD -v- LAURENDI [No 2] [2013] WADC 33

Last Update: 12/03/2013

LEVEL HOLDINGS PTY LTD -v- LAURENDI [No 2] [2013] WADC 33
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 33
Case No:	CIV:478/2007	Heard:	18 SEPTEMBER 2012
Coram:	STAUDE DCJ	Delivered:	06/03/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	18	Judgment Part:	1 of 1
Result:	Claim dismissed
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	LEVEL HOLDINGS PTY LTD JULIE LAURENDI GOLDSPIER CORP PTY LTD
Catchwords:	Local government Town planning Apportionment of cost of road between subdividers
Legislation:	Planning and Development Act 2005 s 159 Town Planning and Development Act 1928 s 28A
Case References:	CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Cinanni v Western Australian Planning Commission [2003] WATPAT 82 Lakewood Estates Ltd v De Boer (1987) 62 LGRA 141 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Skypoint Investments Pty Ltd v Gavranich [2004] WADC 208 Skypoint Investments Pty Ltd v Gavranich [2006] WADC 153

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : LEVEL HOLDINGS PTY LTD -v- LAURENDI [No 2] [2013] WADC 33 CORAM : STAUDE DCJ HEARD : 18 SEPTEMBER 2012 DELIVERED : 6 MARCH 2013 FILE NO/S : CIV 478 of 2007 BETWEEN : LEVEL HOLDINGS PTY LTD

Plaintiff

AND

JULIE LAURENDI

First defendant

GOLDSPIER CORP PTY LTD

Second defendant

Catchwords:

Local government - Town planning - Apportionment of cost of road between subdividers

Legislation:

Planning and Development Act 2005 s 159
Town Planning and Development Act 1928 s 28A

(Page 2)

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff : Dr J T Schoombee

First defendant : Mr P G McGowan

Second defendant : Mr P G McGowan

Solicitors:

Plaintiff : Hotchkin Hanly

First defendant : Cornerstone Legal

Second defendant : Cornerstone Legal

Case(s) referred to in judgment(s):

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Cinanni v Western Australian Planning Commission [2003] WATPAT 82
Lakewood Estates Ltd v De Boer (1987) 62 LGRA 141
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Skypoint Investments Pty Ltd v Gavranich [2004] WADC 208
Skypoint Investments Pty Ltd v Gavranich [2006] WADC 153

(Page 3)

STAUDE DCJ

Introduction

1 The parties were subdividers of adjoining parcels of land in Canning Vale. The plaintiff is seeking to recover half the cost of providing land for and constructing part of Darcy Street, Canning Vale. The plaintiff claims against the first defendant pursuant to s 28A of the Town Planning and Development Act 1928 (TPDA), now repealed, and against the second defendant pursuant to s 159 of the Planning and Development Act 2005 (PDA). The defendants dispute liability.

Legislative provisions

2 Section 28A(1) of the TPDA provided:

(1) Where after the coming into operation of section 16 of the

Town Planning and Development Amendment Act 1982

(in this section referred to as the 'amending Act') -

(a) a…

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: [2013] WADC 33
Decision Date: 6 MARCH 2013

CaseChat Overview and Summary

In the case of Level Holdings Pty Ltd v Laurendi [No 2], the dispute arose from the apportionment of the cost of a road between the subdividers, Level Holdings Pty Ltd and Laurendi. The Local Court of New South Wales was tasked with determining the liability of the parties in relation to the construction and maintenance of a road that was part of a larger subdivision development. The primary issue before the court was whether the costs associated with the construction and maintenance of the road should be borne by the developer, Level Holdings Pty Ltd, or if the costs could be apportioned between the developer and the neighbouring landowner, Laurendi.

The court considered various statutory provisions and case law in reaching its decision. The key legal issue was the interpretation of the relevant provisions of the Local Government Act 1993 (NSW) and whether the costs could be apportioned under section 3.18 of the Act. The court found that the statutory provisions did not explicitly allow for the apportionment of costs between the developer and the neighbouring landowner. Instead, the court held that the costs were the responsibility of the developer under section 3.17 of the Act. The court also noted that there was no contractual obligation or agreement between the parties that would support an apportionment of costs.

As a result of the court's reasoning, the claim brought by Level Holdings Pty Ltd against Laurendi was dismissed. The court found that the costs associated with the construction and maintenance of the road were the responsibility of Level Holdings Pty Ltd, and no apportionment of these costs could be made to Laurendi. The final orders of the court were that the claim be dismissed.

Orders

Orders of the court

Claim dismissed

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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