Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd

[2012] NSWCA 115

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2012] NSWCA 115

Hearing dates:

23 April 2012

Decision date:

23 April 2012

Before:

McColl JA

Decision:

1. Expedite the hearing of the appeal.

2. Costs of the motion to be costs in the cause.

3. Give the parties leave to approach the Registrar in chambers to get a date for an expedited hearing on the basis of an estimate of two days.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE & PROCEDURE - expedition - UCPR r 51.60 - no question of principle

Legislation Cited:

Conveyancing Act 1919
Environmental Planning and Assessment Act 1979
Uniform Civil Procedure Rules 2005

Cases Cited:

Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286

Category:

Procedural and other rulings

Parties:

Moorebank Recyclers Pty Ltd - applicant
Tanlane Pty Ltd - respondent

Representation:

J Lazarus - applicant
Z Steggall - respondent
Mark McDonald & Associates - applicant
Minter Ellison Lawyers - respondent

File Number(s):

2012/73508

Publication restriction:

No

 Decision under appeal 

Citation:

Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286

Date of Decision:

2011-11-04 00:00:00

Before:

Young JA

File Number(s):

2008/277351

Judgment

1. McCOLL JA: This is an application by Moorebank Recyclers Pty Limited pursuant to Uniform Civil Procedure Rules 2005 ("UCPR") r 51.60 for expedition of an appeal from a decision of Young JA (sitting as a judge at first instance) given on 4 November 2011: Tanlane Pty Ltd v Moorebank Recyclers Pty Ltd (No 2) [2011] NSWSC 1286.

1. The proceedings in short stem from an application Moorebank is seeking to advance to use land it owns in the Liverpool local government area for the purpose of a materials recycling facility. In order to be able to use that land in a manner most economically and practically suitable for those purposes, it has needed to secure a suitable means of access to Newbridge Road in Liverpool.

1. Young JA apparently granted an easement pursuant to s 88K of the Conveyancing Act 1919 which involved an arrangement which Moorebank wishes to challenge in the appeal. The development application is governed by Part 3A of the Environmental Planning and Assessment Act 1979 which was repealed in October 2011, but not so as to affect Moorebank's extant application. Moorebank stands to lose what might colloquially be termed its place in the Part 3A queue if substantial progress in its application has not been made before October 2013.

1. Accordingly while it progresses its appeal it must also undertake work to advance its development application on the hypothesis that the easement granted by Young JA may be that which it has to use for the purposes of the application.

1. Moorebank seeks expedition of the appeal on the basis that such resolution of the appeal will, if successful (and its alternative proposal referred to as the "Marshall Design" is accepted), minimise and prevent duplication of those costs to the greatest extent and also in order to avoid it losing the position it now holds in the Part 3A process.

1. The application is not opposed. Nevertheless it is appropriate that the Court itself determine whether expedition should be granted. In my view having regard to the circumstances set out above and in the affidavits of Mr Kennon and Mr McDonald, summarised insofar as the necessity for expedition is concerned in paragraph 37 of the Mr McDonald's affidavit, it is appropriate to order that the appeal be expedited.

1. The notice of motion also asked the Court to make timetabling orders. I am informed that the parties have agreed on a timetable for the preparation of the appeal on the basis of the Registrar's preliminary advice that the two day hearing, which apparently the appeal will require, could at the earliest be listed some time towards the end of August this year. Having regard to that date, the parties advise they will be able to agree to any variations to the timetable which will nevertheless bring the matter to the appropriate degree of preparedness by any listing date.

1. I make the following orders:

1. Expedite the hearing of the appeal.

2. Costs of the motion to be costs in the cause.

3. Give the parties leave to approach the Registrar in chambers to get a date for an expedited hearing on the basis of an estimate of two days.

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Decision last updated: 01 May 2012