Northern Beaches Council v Built Development (Manly) Pty Ltd - [2018] NSWCA 193

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Northern Beaches Council v Built Development (Manly) Pty Ltd [2018] NSWCA 193
Hearing dates: 23 August 2018
Date of orders: 23 August 2018
Decision date: 03 September 2018
Before: Basten JA, White JA
Decision:
(1)   Grant the applicant leave to appeal from the judgment in the Equity Division given on 25 May 2018.
(2)   Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal contained in the white folder filed on 20 August 2018.
(3)   Allow the appeal and set aside order (1) made on 25 May 2018 and the order as to costs of the motion made on 29 May 2018.
(4)   In lieu thereof, order that the amended notice of motion dated 21 May 2018 be dismissed and that the plaintiffs pay the defendant’s costs of the motion.
(5)   Order that the respondents pay the applicant’s costs of the proceedings in this Court.

Catchwords:
APPEAL – interlocutory ruling – strike out of part of commercial list response – application of Practice Note
CIVIL PROCEDURE – strike out of part of commercial list response – whether primary judge misunderstood scope of pleaded case – relevance of context to allegations of misrepresentation and estoppel
Legislation Cited: Local Government (General) Regulation 2005 (NSW)
Civil Procedure Act 2005 (NSW), Pt 6
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18
Cases Cited: In Re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318
Category: Principal judgment
Parties: Northern Beaches Council (Applicant)
Built Development (Manly) Pty Ltd (First Respondent)
Athas Holdings Pty Ltd (Second Respondent)
Built Development Group Pty Ltd (Third Respondent)
Representation:
Counsel:
R Cheney SC with B Connell (Applicant)
C H Withers with F T Roughley (Respondents)
Solicitors:
HWL Ebsworth Lawyers (Applicant)
Corrs Chambers Westgarth (Respondents)

File Number(s): 2018/193927
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division – Commercial List

Citation:

[2018] NSWSC 750

Date of Decision:

25 May 2018

Before:

Ball J

File Number(s):

2017/324554

Judgment

THE COURT: The applicant Council sought leave to appeal from a procedural ruling in the Equity Division striking out a number of paragraphs of a commercial list response filed by the Council in proceedings in which it was the defendant.
In accordance with the long-established principle expressed by Jordan CJ in In Re the Will of F B Gilbert (Deceased), [1] this Court is slow to grant leave to appeal from interlocutory judgments dealing with pre-trial proceedings. However, prior to the commencement of the hearing the Court indicated that it would consider making final orders disposing of the appeal if leave were to be granted.
1. (1946) 46 SR (NSW) 318.
On 23 August 2018 the Court granted the applicant leave to appeal, allowed the appeal and made consequential orders. Reasons were reserved. These are the Court’s reasons.
Before turning to the merits of the…

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: [2018] NSWCA 193
Decision Date: 03 September 2018

CaseChat Overview and Summary

Northern Beaches Council (the applicant) appealed an interlocutory ruling of the Equity Division concerning the strike-out of part of a commercial list response filed by Built Development (Manly) Pty Ltd (the respondent). The dispute arose from allegations of misrepresentation and estoppel within the context of a commercial list response.

The primary legal issue before the Court of Appeal was whether the primary judge had misunderstood the scope of the respondent's pleaded case when striking out part of its commercial list response. This involved considering the relevance of the context to the allegations of misrepresentation and estoppel.

The Court of Appeal found that the primary judge had erred in striking out the relevant parts of the respondent's defence. The judges reasoned that the primary judge had misunderstood the scope of the pleaded case and that the context was relevant to the allegations of misrepresentation and estoppel. Consequently, the appeal was allowed, and the previous orders striking out parts of the defence and awarding costs were set aside.

The Court of Appeal ordered that the amended notice of motion be dismissed and that the plaintiffs pay the defendant's costs of the motion. The respondents were also ordered to pay the applicant's costs of the proceedings in the Court of Appeal.

Orders

Orders of the court

(1) Grant the applicant leave to appeal from the judgment in the Equity Division given on 25 May 2018.

(2) Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal contained in the white folder filed on 20 August 2018.

(3) Allow the appeal and set aside order (1) made on 25 May 2018 and the order as to costs of the motion made on 29 May 2018.

(4) In lieu thereof, order that the amended notice of motion dated 21 May 2018 be dismissed and that the plaintiffs pay the defendant’s costs of the motion.

(5) Order that the respondents pay the applicant’s costs of the proceedings in this Court.

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:	Northern Beaches Council v Built Development (Manly) Pty Ltd [2018] NSWCA 193
Hearing dates:	23 August 2018
Date of orders:	23 August 2018
Decision date:	03 September 2018
Before:	Basten JA, White JA
Decision:	(1) Grant the applicant leave to appeal from the judgment in the Equity Division given on 25 May 2018. (2) Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal contained in the white folder filed on 20 August 2018. (3) Allow the appeal and set aside order (1) made on 25 May 2018 and the order as to costs of the motion made on 29 May 2018. (4) In lieu thereof, order that the amended notice of motion dated 21 May 2018 be dismissed and that the plaintiffs pay the defendant’s costs of the motion. (5) Order that the respondents pay the applicant’s costs of the proceedings in this Court.
Catchwords:	APPEAL – interlocutory ruling – strike out of part of commercial list response – application of Practice Note CIVIL PROCEDURE – strike out of part of commercial list response – whether primary judge misunderstood scope of pleaded case – relevance of context to allegations of misrepresentation and estoppel
Legislation Cited:	Local Government (General) Regulation 2005 (NSW) Civil Procedure Act 2005 (NSW), Pt 6 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18
Cases Cited:	In Re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318
Category:	Principal judgment
Parties:	Northern Beaches Council (Applicant) Built Development (Manly) Pty Ltd (First Respondent) Athas Holdings Pty Ltd (Second Respondent) Built Development Group Pty Ltd (Third Respondent)
Representation:	Counsel: R Cheney SC with B Connell (Applicant) C H Withers with F T Roughley (Respondents) Solicitors: HWL Ebsworth Lawyers (Applicant) Corrs Chambers Westgarth (Respondents)
File Number(s):	2018/193927
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division – Commercial List Citation: [2018] NSWSC 750 Date of Decision: 25 May 2018 Before: Ball J File Number(s): 2017/324554