Pittwater Council v Moore Development Group Pty Ltd

Case [2004] NSWCA 278
CITATION: Pittwater Council v Moore Development Group Pty Ltd & Anor [2004] NSWCA 278
HEARING DATE(S): 9 August 2004
JUDGMENT DATE:
9 August 2004
JUDGMENT OF: Handley JA at 1; Beazley JA at 18; Ipp JA at 19
DECISION: 1. Summons for leave to appeal dismissed as incompetent.; 2. No order as to costs.
CATCHWORDS: APPEAL - no right to appeal from interlocutory order which did not affect the final decision in the proceedings adversely to the appellant - RES JUDICATA - interlocutory decision - adverse to party who succeeded in the final decision - no issue estoppel for other proceedings
CASES CITED: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Blair v Curran (1939) 62 CLR 464
Commonwealth v Bank of New South Wales [1950] AC 235
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478

PARTIES :

 Pittwater Council (Claimant)
Moore Development Group Pty Ltd (First Opponent)
Anna Maria Romeo & Giuseppe Romeo (Second Opponents)
FILE NUMBER(S): CA 40830/03
COUNSEL: B J Preston SC/J M Jagot (Claimant)
Submitting appearance (First Opponent)
P Tomasetti/J Johnson (Second Opponents)
SOLICITORS: Mallesons Stephen Jaques (Claimant)
Ellis Reuben (First Opponent)
Carbone Anderson (Second Opponents)
LOWER COURTJURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S): LEC 10710/02
LOWER COURT
JUDICIAL OFFICER : 		Lloyd J

    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL

                            CA 40830/03

                            HANDLEY JA
                            BEAZLEY JA
                            IPP JA

                            9 AUGUST 2004
    PITTWATER COUNCIL v MOORE DEVELOPMENT GROUP PTY LTD & ANOR
    CATCHWORDS

    APPEAL – no right to appeal from interlocutory order which did not affect the final decision in the proceedings adversely to the appellant

    RES JUDICATA – interlocutory decision – adverse to party who succeeded in the final decision – no issue estoppel for other proceedings
    FACTS


    A Class 1 appeal to the Land and Environment Court from the deemed refusal of development consent was dismissed following a final hearing. The Court had earlier determined, adversely to the Council, a preliminary question relating to the existing use rights on the property. The Council filed a summons for leave to appeal from that interlocutory decision but the case had proceeded to a final hearing before the summons was heard. After the final decision in favour of the Council it sought to proceed with its summons for leave to appeal from the interlocutory order. HELD : Leave to appeal from the interlocutory order should be refused because it had not affected the final decision in the Class 1 appeal adversely to the Council and did not create any issue estoppel for other proceedings: Blair v Curran (1939) 62 CLR 464, 533 applied.

    ORDERS


    1. Summons for leave to appeal dismissed as incompetent.

    2. No order as to costs.

    IN THE SUPREME COURT
    OF NEW SOUTH WALES
    COURT OF APPEAL

                            CA 40830/03

                            HANDLEY JA
                            BEAZLEY JA
                            IPP JA

                            9 AUGUST 2004
    PITTWATER COUNCIL v MOORE DEVELOPMENT GROUP PTY LTD & ANOR
    Judgment

    1 HANDLEY JA :…

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AGLC
Pittwater Council v Moore Development Group Pty Ltd [2004] NSWCA 278
Case
[2004] NSWCA 278
Decision Date

CaseChat Overview and Summary

Pittwater Council appealed against an interlocutory order made by a judge of the Supreme Court of New South Wales. The dispute concerned the interpretation of a development consent granted by the Council to Moore Development Group Pty Ltd. The interlocutory order in question determined a preliminary issue regarding the interpretation of a condition within the development consent.

The primary legal issue before the Court of Appeal was whether it had jurisdiction to hear the appeal. Specifically, the Court had to determine if the interlocutory order appealed from was one from which an appeal lay as of right, or if leave to appeal was required. This, in turn, depended on whether the interlocutory order, if it stood, would have the effect of finally deciding the proceedings in relation to the appellant adversely to it. A secondary issue, arising from the interlocutory decision being adverse to the party who ultimately succeeded in the substantive proceedings, concerned whether the interlocutory decision created an issue estoppel in other proceedings.

The Court of Appeal held that the interlocutory order did not finally decide the proceedings in relation to the Council adversely to it, as the substantive proceedings concerning the validity of the development consent were still ongoing. Therefore, there was no right of appeal from the interlocutory order. The Court further held that an interlocutory decision, even if adverse to a party who ultimately succeeds in the main proceedings, does not give rise to issue estoppel in other proceedings.

Consequently, the summons for leave to appeal was dismissed as incompetent, and no order was made as to costs.

Orders

Orders of the court

1. Summons for leave to appeal dismissed as incompetent.; 2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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