Neighbourhood Association NA 285259 v Watson

[2007] NSWLEC 869

Land and Environment Court

of New South Wales

CITATION:

Neighbourhood Association NA 285259 v Watson [2007] NSWLEC 869

PARTIES:

FIRST APPLICANT:
Neighbourhood Association NA 285249

SECOND APPLICANT:
Neighbourhood Association NA 285433

THIRD APPLICANT:
Neighbourhood Association NA 285486

FOURTH APPLICANT:
David Timothy O'Brien

FIFTH APPLICANT:
Angela Christina O'Brien

FIRST RESPONDENT:
Anthony Rupert Watson

SECOND RESPONDENT:
Sammy One Pty Limited

FILE NUMBER(S):

41094 of 2006

CORAM:

Biscoe J

KEY ISSUES:

Practice and Procedure :- Vacation of hearing dates - related proceedings in Supreme Court.

CASES CITED:

Neighbourhood Association DP 285249 v Watson [2007] NSWLEC 457 ;
Neighbourhood Association NA 285249 v Watson [2007] NSWLEC 729

DATES OF HEARING:

23 November 2007

EX TEMPORE JUDGMENT DATE:

23 November 2007

LEGAL REPRESENTATIVES:

FIRST, SECOND, THIRD AND FIFTH APPLICANTS:
Mr P Tomasetti SC and Mr N Eastman, barrister
SOLICITORS:
Cosgriff Orchard Legal

FOURTH APPLICANT:
N/A

FIRST AND SECOND RESPONDENTS:
Mr C J Leggat SC and Mr J Young, barrister
SOLICITORS
Andreones

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

23 November 2007

41094 of 2006

NEIGHBOURHOOD ASSOCIATION NA 285249 & ORS v WATSON & ANOR

EXTEMPORE JUDGMENT

1 HIS HONOUR: This is an application to vacate the hearing dates which have been set in December 2007. When the proceedings were listed before me for hearing a little over a month ago, they were stayed for 28 days under the provisions of the Bankruptcy Act 1966 (Cth) by reason of the bankruptcy of one of the applicants on the preceding day: Neighbourhood Association NA 285249 v Watson [2007] NSWLEC 729. The trustee in bankruptcy of that applicant, I am informed, has received notice of the action under s 60(3) of the Bankruptcy Act but has not made an election to continue with the action within 28 days after notice. It is common ground that it is now open to the other applicants to proceed with this action.

2 The application to vacate the hearing dates arises out of the fact that jurisdiction to grant the relief which the applicant seeks with respect to a scheme under the Community Land Development Act 1989 has been allocated by the legislature partly to the Supreme Court and partly to this Court. Consequently, there are closely related proceedings pending in both courts. In this Court the applicant seeks specific performance of a development contract under the Community Land Development Act 1989 and, alternatively or as an ancillary claim, damages for breach of that contract. In the Supreme Court proceedings, under s 70 of the Community Land Development Act 1989, other relief is sought and the applicant has filed an application to amend to seek an order for variation of the scheme. That application is returnable in the Supreme Court on 4 December 2007.

3 The applicant now wishes the Supreme Court proceedings, amended as indicated below, to be heard first. They cannot be heard until next year, that is, after the proceedings in this Court are due to be heard. The rationale in having the Supreme Court proceedings heard first, as I understand it, is that if the scheme is varied in the Supreme Court proceedings then it will become unnecessary to pursue relief (or the main relief) sought in these proceedings. The respondent seeks to maintain the allocated hearing dates for the proceedings in this Court on the basis that the Court could then at least determine the damages claim.

4 Given the close relationship between the two proceedings and the economies that would be achieved, it is desirable that the one judge hear both proceedings if possible. One way in which this might be achieved was suggested by the Chief Judge in these proceedings in Neighbourhood Association DP 285249 v Watson [2007] NSWLEC 457 at [13].

5 I am persuaded, on balance, that I should vacate the hearing dates in December. I make the following orders:

1. The hearing dates in December are vacated.

2. The matter is stood over until 1 February 2008 for mention before me.

3. Liberty to restore on three days’ notice.

4. The applicant is to pay any costs thrown away occasioned by the vacation of the hearing dates.

6 After I had made the above orders, the respondent sought an order that the costs be assessed forthwith. I decline to make that order but will entertain such an application, if the respondent is so advised, when the proceedings are before me on 1 February 2008 when I will know better how the Supreme Court action is proceeding.