Perpetual Trustee Company Limited v City of Sydney Council

[2006] NSWLEC 694

Land and Environment Court

of New South Wales

CITATION:

Perpetual Trustee Company Limited v City of Sydney Council [2006] NSWLEC 694

PARTIES:

APPLICANT:
Perpetual Trustee

FIRST RESPONDENT:
City of Sydney Council

SECOND RESPONDENT:
Westfield Management Limited

FILE NUMBER(S):

10114 of 2005

CORAM:

Biscoe J

KEY ISSUES:

Practice and Procedure :-

DATES OF HEARING:

24/10/2006

EX TEMPORE JUDGMENT DATE:

10/24/2006

LEGAL REPRESENTATIVES:

APPLICANT:
Mr S Flanigan, barrister

SOLICITORS
Deacons

FIRST RESPONDENT:
N/A (mentioned by 2nd Respondent)
SECOND RESPONDENT:
Ms H McFarlane, solicitor

SOLICITORS

FIRST RESPONDENT:
Maddocks
SECOND RESPONDENT:
Minter Ellison

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

24 October 2006

10114 of 2005

PERPETUAL TRUSTEE COMPANY LIMITED v CITY OF SYDNEY COUNCIL; WESTFIELD MANAGEMENT LIMITED

JUDGMENT

:

1 These are proceedings in class 1 of the court’s jurisdiction which were instituted in March 2005 by Perpetual Trustee Company Limited against the City of Sydney Council and Westfield Management Ltd, appealing against a deemed refusal of a s 96(2) modification application to delete conditions 19 and 56 of a development consent dated 24 February 1986. Condition 56 provided that,

Documentary evidence shall be provided, to the satisfaction of the City’s solicitor, that the right of way currently applicable to the subject property in favour of the adjoining property, is extended to cover the right of way to the ‘ Imperial Arcade ’ site and the ‘ Centrepoint ’ site, with reciprocal rights where necessary and such rights shall embody a provision ensuring their application in perpetuity except with the consent of the council.”

2 The effect of condition 56 is that a right-of-way applicable to the basement service parking levels of the Glasshouse site in favour of the adjoining Skygarden site be extended to the adjoining Imperial Arcade site and the Centrepoint site. Perpetual owns the Glasshouse site. The four sites front Pitt Street Mall in Sydney.

3 Other proceedings were instituted by Westfield Management Ltd against Perpetual Trustee Company Ltd, which culminated in a judgment of the Court of Appeal on 8 September 2006 in which it was held that condition 56 was valid: Westfield Management Ltd v Perpetual Trustees Company Ltd [2006[ NSWCA 245. There has been no application for leave to appeal against that decision.

4 I was informed that there has also been a decision of Brereton J in other proceedings between Westfield and Perpetual in the Equity Division of the Supreme Court as to the construction of the grant of the easement for right of way. I was not provided with a copy of this judgment, but am informed that it is on appeal, that the appeal is to be heard on 9 November 2006, and that the decision of the Court of Appeal may have ramifications for this matter.

5 The matter is now before me in order to determine whether anything should be done by way of progressing the present matter. It is submitted for the applicant that nothing should be done until after judgment is delivered by the Court of Appeal in relation to the appeal from the judgment of Brereton J which, as I have said, is to be heard on 9 November 2006. What is said in support of the application is that although there has been evidence already filed in these proceedings, if the matter were now to proceed to a hearing, some further costs would have to be expended on further evidence and the like, and that these may, in the ultimate result, be wasted costs.

6 Against that it has been submitted on behalf of Westfield that it will be likely to suffer financial prejudice if this matter continues to be delayed into what would be likely to be next year, given that an unknown period of time must be allowed for the likelihood that the Court of Appeal will reserve judgment. It is pointed out that the delay may be substantially greater if leave to appeal to the High Court were to be sought from the judgment of the Court of Appeal. It is also said that to stop the class 1 proceedings would effectively amount to a stay of the Court of Appeal’s judgment that cl 56 is valid, a condition which it is sought to delete in the class 1 proceedings.

7 At the end of the day the question is mainly one of balancing the prejudice or potential prejudice to Westfield against the additional costs which it is suggested may be wasted. While taking into account the fact that, as things now stand, condition 56 has been held on appeal to be valid and there has been no application for leave to appeal from that decision. After weighing these considerations, I consider that this matter should be progressed in the ordinary way.

8 I direct the parties to confer in an endeavour to agree directions to progress this matter. I will list the matter for an e-court before the Registrar on Friday for the purpose of directions being made.

STOOD OVER TO FRIDAY 27 OCTOBER 2006