Mosman Municipal Council v Sahade (No. 3)

[1999] NSWLEC 202

Land and Environment Court

of New South Wales

CITATION:

Mosman Municipal Council v Sahade (No. 3) [1999] NSWLEC 202

PARTIES

APPLICANT:
Mosman Municipal Council

RESPONDENT:
Sahade

NUMBER:

40171 of 1998

CORAM:

Talbot J

KEY ISSUES:

Practice & Procedure :- amendment of claim

LEGISLATION CITED:

DATES OF HEARING:

03/01/1999; 03/02/1999

EX TEMPORE JUDGMENT DATE:

03/01/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr S Duggan (Barrister)

SOLICITORS:
Hill Thompson Sullivan

RESPONDENT:
Mr M Sahade (Barrister)

SOLICITORS:
n/a

JUDGMENT:

IN THE LAND AND Matter No. 40171 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 1 March 1999

Mosman Municipal Council
Applicant

v
Anthony Victor Sahade (No. 3)

Respondent

REASONS FOR JUDGMENT ON APPLICATION TO AMEND THE FURTHER AMENDED APPLICATION


1. HIS HONOUR: The Court has power under Pt 10 r 1 of the Land and Environment Court Rules and s 68 of the Land and Environment Court Act 1979 (the Court Act) to make such amendments as the Court thinks fit. The power arises where the Court is of the opinion that the amendments are necessary in the interests of justice or such amendments shall lead to the determination of the real questions raised or otherwise, depending on the proceedings, or the correction of any defect or error in any proceedings, or the avoidance of a multiplicity of proceedings.

2. The respondent has raised an issue, but so far no evidence, to the effect that the respondent himself is not carrying on the business of a car wash and cafe at the property known as 612 Military Road Mosman.

3. The applicant seeks to amend the application class 4 to take account of the circumstance that an owner in some way suffers or permits the operation which is complained of as being a breach of conditions of development consent or breach of conditions of a building approval. The respondent has elected not to acquaint the council with any circumstance that might lead the council to desist in the proceedings or to seek to join another party. No evidence has been filed. It is only as a consequence of limited cross examination of one council witness and as a consequence of submissions made from the bar table that the issue about whether or not the respondent is personally carrying on any operations of any sort on the premises is raised. The amendments now sought are still claims which affect only the respondent. They are amendments which fall within the ambit of the Court's discretion as contemplated by s 68 or by the relevant rule, regarding amendments, which I referred to a moment ago.

4. I therefore grant leave for the applicant to amend the further amended application class 4 in the manner indicated on the copy of a further amended application which is initialled by me. I direct that the applicant file an amended engrossed copy in due course.