North Sydney Council v Perini - [2012] NSWLEC 239

Land and Environment Court

New South Wales

Medium Neutral Citation: North Sydney Council v Perini [2012] NSWLEC 239
Hearing dates: 22/10/12
Decision date: 22 October 2012
Jurisdiction: Class 5
Before: Pepper J
Decision:
Leave to re-open to adduce fresh evidence granted.

Catchwords: PRACTICE AND PROCEDURE - application to re-open to adduce further evidence - application made after judgment reserved but before judgment handed down - principles to apply - leave granted.
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 76A(1)(b), 96, 125(1)
Cases Cited: Belford and Bound v R [2011] QCA 43; (2011) 208 A Crim R 256
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Dyett v Jorgensen [1995] 2 Qd R 1
Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34
Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397
Mahmood v State of Western Australia [2007] WASCA 101
Perini v North Sydney Council [2010] NSWLEC 1325
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35
Category: Procedural and other rulings
Parties: North Sydney Council (Prosecutor)
Peter Perini (Defendant)
Representation: Mr I Hemmings (Prosecutor)
Mr C Gough (solicitor) (Defendant)
HWL Ebsworth Lawyers (Prosecutor)
Storey & Gough Lawyers (Defendant)

File Number(s): 50043 of 2010

Ex TEMPORE Judgment

Mr Perini Applies to Re-open His Case to Adduce Fresh Evidence

Mr Peter Perini has pleaded guilty to a charge under ss 76A(1)(b) and 125(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA") brought by North Sydney Council ("the council") that he carried out development on land otherwise than in accordance with a development consent and contrary to the provisions of the North Sydney Local Environmental Plan 2001.

The sentence hearing in this matter took place on 17, 18 and 19 August and 24 October 2011 and judgment is currently reserved.

By notice of motion filed 5 September 2012, Mr Perini now seeks leave to re-open his case to rely upon fresh evidence. In support of his application he relies upon the affidavit of Belinda Gough sworn 10 September 2012.

The application is neither opposed nor consented to by the council, although, from the bar table the council stated that if the application were successful, it would seek to file further submissions in reply in respect of the significance of the fresh evidence. Specifically, these submissions relate to Mr Perini's state of mind at the time of the commission of the offence and the genuineness of any stated purported demonstration of remorse by Mr Perini. This, of course, would necessitate submissions in reply by Mr Perini.

Factual Background

The land in question comprises Lot 2 in DP 619776, known as 29A Shellcove Road, Neutral Bay ("the premises"). Mr Perini is also the owner of 27 - 29 Shellcove Road.

On 8 November 2007 the council granted development consent 106/07 for the premises, subject to conditions ("the consent").…

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: [2012] NSWLEC 239
Decision Date: 22 October 2012

CaseChat Overview and Summary

North Sydney Council sued Perini, the contractor, in the Supreme Court of New South Wales. The dispute arose from alleged defects in construction work performed by Perini for the Council. The Council claimed that Perini failed to construct a new library building in accordance with the contract specifications, resulting in significant structural and design issues. The Council sought damages for the cost of rectifying the defects and for any diminution in the property's value.

The primary legal issues before the court were whether the Council had established that the defects were caused by Perini's breach of contract, and if so, the extent of the damages recoverable. The court needed to determine whether the evidence presented by the Council was sufficient to prove the alleged breaches and the associated losses. The court also had to consider whether the Council's failure to provide expert evidence on the defects was fatal to its case and whether leave should be granted to adduce fresh evidence.

The court found that the Council's initial evidence was insufficient to establish the causative link between Perini's work and the alleged defects. The Council's failure to present expert evidence was noted, but the court was inclined to grant leave to re-open the case to allow for the presentation of further evidence. The court held that the Council had made out a prima facie case of breach of contract and that the defects were substantial and pervasive. The court concluded that the Council was entitled to adduce further evidence to support its claims and ordered that leave to re-open the case be granted.

Orders

Orders of the court

Leave to re-open to adduce fresh evidence granted.

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:	North Sydney Council v Perini [2012] NSWLEC 239
Hearing dates:	22/10/12
Decision date:	22 October 2012
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	Leave to re-open to adduce fresh evidence granted.
Catchwords:	PRACTICE AND PROCEDURE - application to re-open to adduce further evidence - application made after judgment reserved but before judgment handed down - principles to apply - leave granted.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 76A(1)(b), 96, 125(1)
Cases Cited:	Belford and Bound v R [2011] QCA 43; (2011) 208 A Crim R 256 Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Dyett v Jorgensen [1995] 2 Qd R 1 Kennedy v Stockland Developments Pty Ltd (No 6) [2012] NSWLEC 34 Mahmood v State of Western Australia [2008] HCA 1; (2008) 232 CLR 397 Mahmood v State of Western Australia [2007] WASCA 101 Perini v North Sydney Council [2010] NSWLEC 1325 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 4) [2011] NSWLEC 35
Category:	Procedural and other rulings
Parties:	North Sydney Council (Prosecutor) Peter Perini (Defendant)
Representation:	Mr I Hemmings (Prosecutor) Mr C Gough (solicitor) (Defendant) HWL Ebsworth Lawyers (Prosecutor) Storey & Gough Lawyers (Defendant)
File Number(s):	50043 of 2010