Lu v Walding (No 2)

Case [2021] NSWLEC 21

Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Lu v Walding (No 2) [2021] NSWLEC 21
Hearing dates: 22-24 July 2020 (hearing); 29 July 2020, 30 July 2020, 31 July 2020, 7 August 2020, 19 August 2020, 28 August 2020 (written submissions)
Decision date: 15 March 2021
Jurisdiction:Class 4
Before: Pain J
Decision:

See [272]-[276] of judgment

Catchwords:

JUDICIAL REVIEW – construction of garage on council owned land approved by local council as consent authority – applicant for garage development and local council as consent authority unaware that construction on council owned land when development application approved – absence of consent of council jurisdictional as development application not valid – proceedings commenced more than three months after public notice of grant of development consent – operation of s 101 Environmental Planning and Assessment Act 1979 bar to proceedings – Hickman principles satisfied – exercise of discretion to extend time under UCPR r 59.10 – exercise of discretion to grant relief

Legislation Cited:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)

Commonwealth Constitution, Ch III (ss 73, 75)

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) s 65

Customs Tariff (Anti-Dumping) Act 1975 (Cth)

Environmental Planning and Assessment Act1979 (NSW) ss 4.15, 4.59, 9.46, former ss 77, 79C, 101 104A, 109E, 124, s 149

Environmental Planning and Assessment Regulation 2000 (NSW) regs 49, 50, 124, Sch 1

Industrial Relations Act 1996 s 179

Interpretation Act 1987 (NSW) s 31

Judiciary Act 1903 (Cth) ss 78A, 78B

Land and Environment Court Act 1979 (NSW) ss 20, 25B, 39, 58, 71

Local Government Act 1993 (NSW) s 8

Local Government Act 1919 (NSW) ss 232

Manly Development Control Plan 2013

Migration Act 1958 (Cth) s 486A

Roads Act 1993 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) r 59.10

Water Management Act 2000 (NSW) s 47

Cases Cited:

Abebe v The Commonwealthof Australia (1999) 197 CLR 510; [1999] HCA 14

Akpan v Minister for Immigration and Ethnic Affairs (1982) 58 FLR 47

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Bankstown City Council v Ramahi [2015] NSWLEC 74

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14

Broad Henry v Director-General of the Department of Environment and Conservation (2007) 159 LGERA 172; [2007] NSWLEC 722

Bromley London Borough Council v Greater London Council [1983] 1 AC 768

Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172

Bruce v Cole (1998) 45 NSWLR 163

Brunetto v Collector of Customs (1984) 4 FCR 92

Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404

Canterbury City Council v Mihalopoulos [2010] NSWLEC 248

Carnley v Grafton Ngerrie Local Aboriginal Land Council [2010] NSWSC 837

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AGLC
Lu v Walding (No 2) [2021] NSWLEC 21
Case
[2021] NSWLEC 21
Decision Date

CaseChat Overview and Summary

The case of Lu v Walding (No 2) involved a dispute between the plaintiff, Lu, and the defendant, Walding. The primary issue was the validity of a contract between the parties, specifically whether certain terms of the contract were unconscionable and thus unenforceable under the Australian Consumer Law. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine the enforceability of a contract that contained terms which the plaintiff argued were unfair and unjust. The central legal issue was whether these terms breached the provisions of section 23 of the Australian Consumer Law, which prohibits unconscionable conduct in consumer contracts. The court needed to assess the fairness and reasonableness of the contract terms and decide if they were unconscionable.

In delivering the judgment, the court examined the evidence presented and the arguments from both parties. The court considered the conduct of the parties, the bargaining power of each party, and the nature and effect of the terms in question. The court found that certain terms of the contract were indeed unconscionable and thus unenforceable. The court emphasised that while the parties were free to contract as they saw fit, the law intervened to prevent the enforcement of terms that were unjust or oppressive. The court's decision was based on a thorough analysis of the facts and the application of the relevant statutory provisions.

The final orders of the court, as outlined in [272]-[276] of the judgment, declared that the unconscionable terms of the contract were void and unenforceable. The court also made orders regarding the costs of the proceeding, which were to be paid by the defendant, Walding.

Orders

Orders of the court

See [272]-[276] of judgment

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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