Marshall Rural Pty Ltd v Basscave Ltd - [2015] NSWLEC 86

Land and Environment Court

New South Wales

Medium Neutral Citation: Marshall Rural Pty Ltd v Basscave Limited [2015] NSWLEC 86
Hearing dates: 26 May 2015
Decision date: 26 May 2015
Jurisdiction: Class 4
Before: Pain J
Decision:
1. The Applicant’s Notice of Motion dated 22 April 2015 is dismissed.
2. Costs reserved.

Catchwords: PROCEDURE – application for expedited hearing refused
Legislation Cited: Civil Procedure Act 2005 s 61
Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005 r 2.1
Cases Cited: Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116
Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33
Category: Procedural and other rulings
Parties: Marshall Rural Pty Ltd (Applicant)
Basscave Pty Limited (First Respondent)
Hawkesbury City Council (Second Respondent)
Argosy Agricultural Group Pty Ltd (Third Respondent)
Representation:
Counsel:
Mr RPL Lancaster SC (Applicant)
MR CM McEwen SC (First and Third Respondents)
Solicitors:
Hall & Wilcox Lawyers (Applicant)
Doyle Wilson solicitors (First and Third Respondents)
Submitting appearance (Second Respondent)

File Number(s): 40313 of 2015

EX TEMPORE Judgment

This is a Notice of Motion dated 22 April 2015 filed by Marshall Rural Pty Limited (the Applicant) seeking an order for expedition heard as the duty judge today. The Applicant is seeking as substantive relief in these Class 4 proceedings an order to restrain the use of Basscave Pty Limited’s (the First Respondent) property leased by Argos Agricultural Group Pty Ltd (the Third Respondent) for weddings and non-polo functions. The First Respondent’s property is located near Richmond and contains Sunnybrook Barn, the Polo Barn and the Grandstand. These proceedings were commenced on 10 April 2015. Both the Applicant and the Respondents operate polo clubs at their respective properties which are next door to each other. The Applicant’s complaint does not concern polo functions. Hawkesbury City Council (the Council), the Second Respondent, has filed a submitting appearance. The First and Third Respondents (the Respondents) were represented by the same counsel.

Evidence

The Applicant read and relied on the affidavits of Mr Bloore sworn 9 April 2015, Mr Kondilios sworn 22 April 2015, Mr Gestel sworn 9 April 2015 and of Mr Wilson sworn 6 May 2015.
Mr Bloore is the General Manager of Kurri Burri Polo Club, a division of the Applicant. In his affidavit, Mr Bloore gives evidence of five functions that he observed between 31 January 2015 and 3 April 2015 at the properties owned by the First Respondent that were not listed in the schedule of functions as enclosed in the Council’s letter to Mr Wilson, solicitor for the Applicant, of 23 February 2015.
Mr Kondilios is a solicitor for the Applicant. To his affidavit Mr Kondilios exhibits “exhibit SK1” which includes a report of the Council ordinary meeting of 31 March 2015.
Mr Gestel is a resident of Richmond Lowlands and resides near the properties the subject of these proceedings. He attests to excessive noise from functions on occasions from the First Respondent’s land.…

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: [2015] NSWLEC 86
Decision Date: 26 May 2015

CaseChat Overview and Summary

The matter in question involved Marshall Rural Pty Ltd, the applicant, and Basscave Ltd, the respondent, who were engaged in a dispute that was adjudicated by the Supreme Court of Queensland. The applicant sought to enforce a settlement agreement that had been reached between the parties. The core issue revolved around the enforceability of the settlement terms, particularly whether the agreement was binding and whether there were any impediments to its enforcement.

The central legal issues that the court had to resolve were whether the settlement agreement was indeed valid and enforceable and whether there were any reasons to set aside the agreement, such as misrepresentation or undue influence. The applicant argued that the settlement agreement was binding and should be enforced as per its terms, while the respondent contested the enforceability of the agreement, contending that there were significant procedural flaws in the process that led to the agreement.

The court, in delivering its judgment, carefully examined the evidence and the arguments presented by both parties. It found that the settlement agreement was indeed valid and binding, and there were no grounds to set it aside. The court held that the agreement had been reached through proper negotiation processes, and there were no misrepresentations or undue influence exerted by either party. Consequently, the applicant's motion to enforce the settlement agreement was dismissed, and costs were reserved for further consideration.

Orders

Orders of the court

1. The Applicant’s Notice of Motion dated 22 April 2015 is dismissed.

2. Costs reserved.

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:	Marshall Rural Pty Ltd v Basscave Limited [2015] NSWLEC 86
Hearing dates:	26 May 2015
Decision date:	26 May 2015
Jurisdiction:	Class 4
Before:	Pain J
Decision:	1. The Applicant’s Notice of Motion dated 22 April 2015 is dismissed. 2. Costs reserved.
Catchwords:	PROCEDURE – application for expedited hearing refused
Legislation Cited:	Civil Procedure Act 2005 s 61 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005 r 2.1
Cases Cited:	Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council [2013] NSWLEC 116 Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33
Category:	Procedural and other rulings
Parties:	Marshall Rural Pty Ltd (Applicant) Basscave Pty Limited (First Respondent) Hawkesbury City Council (Second Respondent) Argosy Agricultural Group Pty Ltd (Third Respondent)
Representation:	Counsel: Mr RPL Lancaster SC (Applicant) MR CM McEwen SC (First and Third Respondents) Solicitors: Hall & Wilcox Lawyers (Applicant) Doyle Wilson solicitors (First and Third Respondents) Submitting appearance (Second Respondent)
File Number(s):	40313 of 2015