McGinn v Inner West Council

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	McGinn v Inner West Council [2018] NSWCA 90
Hearing dates:	17 April 2018
Decision date:	01 May 2018
Before:	Beazley P; Ward JA; Simpson AJA
Decision:	The notice of motion is dismissed with costs.
Catchwords:	CIVIL PROCEDURE – notice of motion to set aside judgment of Court of Appeal for fraud – whether there was new evidence on the basis of which judgment should be set aside
Legislation Cited:	Ashfield Local Environmental Plan 1985 Environmental Planning and Assessment Act 1979 (NSW), s 143 Evidence Act 1995 (NSW), ss 56, 143, 144
Cases Cited:	McGinn v Ashfield Council [2011] NSWLEC 105 McGinn v Ashfield Council [2011] NSWLEC 84 McGinn v Ashfield Council [2012] NSWCA 238 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Category:	Principal judgment
Parties:	Sophia McGinn (Applicant) Inner West Council (Respondent)
Representation:	Counsel: In person (Applicant) J Strati (Solicitor) (Respondent)   Solicitors: In person (Applicant) Inner West Council (Respondent)
File Number(s):	2011/239285

Judgment

1. THE COURT: In 2011, the applicant, Ms Sophia McGinn, brought proceedings in the Land and Environment Court, challenging the validity of a development consent granted to the owner of a property adjoining her residence for the construction of an additional detached house at the rear of the existing house on the property. The application was dismissed by Biscoe J: see McGinn v Ashfield Council [2011] NSWLEC 84 and McGinn v Ashfield Council [2011] NSWLEC 105. On 6 August 2012, this Court dismissed Ms McGinn’s appeal from the orders of Biscoe J: McGinn v Ashfield Council [2012] NSWCA 238.

2. By notice of motion filed on 28 November 2017, Ms McGinn sought an order that the judgment of this Court be set aside “on the ground that the judgment was fraudulently obtained” and that a new trial be ordered. The basis upon which Ms McGinn sought to set aside the judgment of this Court was that there was new evidence, namely, a s 149 planning certificate for the adjoining property, which stated that “dual occupancies (detached) development are prohibited”.

3. In support of her notice of motion, Ms McGinn swore an affidavit on 2 November 2017, in which she deposed to the following matters:

1. That on 23 November 2010, development consent was granted to the owner of the adjoining property for a detached dual occupancy (affidavit (3));

2. That construction of the detached dual occupancy began in 2011 (affidavit (4));

3. That Ms McGinn moved out of her property in 2012 when this Court dismissed her appeal (affidavit (5));

4. That on 27 September 2017, Ms McGinn noticed that the s 149 certificate for her property stated that detached dual occupancies were prohibited (affidavit (7));

5. That Ms McGinn then ordered a s 149 certificate for the adjoining property, which also stated that detached dual occupancies were prohibited (affidavit (8));

6. That thereafter, on 12 October 2017, Ms McGinn emailed the respondent referring to the…