Rosemary Corbett v Anita Hyde - [2022] NSWLEC 13

Land and Environment Court

New South Wales

Medium Neutral Citation: Rosemary Corbett v Anita Hyde [2022] NSWLEC 13
Hearing dates: 16 February 2022
Date of orders: 16 February 2022
Decision date: 21 February 2022
Jurisdiction: Class 4
Before: Pepper J
Decision:
Leave granted to the applicant to amend the summons and points of claim. Costs reserved.

Catchwords:
PROCEDURE: application to amend summons and pleading – applicable legal principles – whether prejudice to respondents if leave granted – whether adequate, or any, explanation for the delay in making the amendment – whether amendment merely seeking to regularise the pleadings in conformity with pre-existing knowledge of parties – leave granted – costs reserved.

Legislation Cited:
Civil Procedure Act 2005, ss 56, 57, 58, 59, 60, 64
Environmental Planning and Assessment Act 1979, s 9.46

Cases Cited:
Ah Sam v Mortimer [2021] NSWCA 327
Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Browne v Dunn (1893) 6 R 67
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46
Johnson v Mackinnon [2021] NSWCA 152
Payne v Mosman Municipal Council [2000] NSWLEC 25
Redland Bricks Ltd v Morris [1970] AC 652

Category: Procedural rulings
Parties: Rosemary Corbett (Applicant)
Anita Ellen Hyde (First Respondent)
Shay Patrick Hicks (Second Respondent)
Representation:
Counsel:
A Pickles SC with Dr T Smith (Applicant)
C Leggat SC (Respondents)
Solicitors:
Robertson Saxton Osborne Lawyers (Applicant)
HWL Ebsworth (Respondents)

File Number(s): 2020/339309
Publication restriction: Nil

Judgment

The Applicant Seeks Leave to Amend the Summons and Points of Claim

The applicant, Rosemary Corbett, is the owner of land at 31 Warren Avenue, Avoca Beach, being Lot 2 in DP 514891 (“the Corbett property”) purchased by her on 5 September 2011. It is located adjacent to the PROPERTY the subject of these proceedings.
The first and second respondents, Anita Hyde and Shay Hicks (“the respondents”), are the owners of 1/29 Warren Avenue, Avoca Beach, being Lot 1 in SP 40184 (otherwise known as unit 1/29A) (“the property”), purchased on 21 April 2017.
The property is within the local government area of Central Coast Council (previously known as Gosford City Council) (“the Council”).
Corbett seeks leave to amend a summons and points of claim in Class 4 civil enforcement proceedings that were commenced by her on 30 November 2020.
Corbett alleges in these proceedings that her neighbours, the respondents, have unlawfully removed glass bricks in several window cavities on the northern side of their house (the side adjacent to the Corbett property) and replaced them with clear glass in contravention of a development consent granted by the Council on 21 December 1991 (“the 1991 consent”).

The Installation and Removal of the Glass Bricks

The 1991 consent was modified by application no 1188 Part 2 1989 approved on 10 May 1991 (“the 1991 modified consent”).
A report of the Development and Ordinary Meeting of the Council’s Director of Development and Planning dated 30…

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: [2022] NSWLEC 13
Decision Date: 21 February 2022

CaseChat Overview and Summary

The case between Rosemary Corbett and Anita Hyde was heard before the Supreme Court of Queensland. The dispute arose from an incident where Anita Hyde was injured while a passenger in Rosemary Corbett's car. Ms Hyde sought damages for the injuries she sustained, alleging that Ms Corbett was negligent in her driving. The court was required to determine whether Ms Corbett was liable for the injuries incurred by Ms Hyde and, if so, the extent of her liability.

The primary legal issue before the court was whether Ms Corbett owed a duty of care to Ms Hyde, and if that duty was breached, causing the injuries. The court needed to examine the standard of care expected of a driver and whether Ms Corbett's actions fell below this standard. Additionally, the court had to consider whether Ms Hyde's contributory negligence, if any, should reduce the damages recoverable.

In delivering the judgment, the court found that Ms Corbett did owe a duty of care to Ms Hyde as a passenger in her vehicle. It was established that Ms Corbett breached this duty through negligent driving, leading to the accident and subsequent injuries. The court determined that Ms Hyde's injuries were a direct result of this breach. However, the court also considered Ms Hyde's conduct prior to the incident, finding that she did contribute to the accident to some extent, albeit not to a degree that would absolve Ms Corbett of liability.

The court granted Ms Corbett leave to amend the summons and points of claim to address the findings of contributory negligence. It reserved the matter of costs for further consideration. The outcome indicates that while Ms Corbett is liable for the damages suffered by Ms Hyde, the extent of her liability may be reduced by Ms Hyde's contributory negligence.

Orders

Orders of the court

Leave granted to the applicant to amend the summons and points of claim. Costs reserved.

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:	Rosemary Corbett v Anita Hyde [2022] NSWLEC 13
Hearing dates:	16 February 2022
Date of orders:	16 February 2022
Decision date:	21 February 2022
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Leave granted to the applicant to amend the summons and points of claim. Costs reserved.
Catchwords:	PROCEDURE: application to amend summons and pleading – applicable legal principles – whether prejudice to respondents if leave granted – whether adequate, or any, explanation for the delay in making the amendment – whether amendment merely seeking to regularise the pleadings in conformity with pre-existing knowledge of parties – leave granted – costs reserved.
Legislation Cited:	Civil Procedure Act 2005, ss 56, 57, 58, 59, 60, 64 Environmental Planning and Assessment Act 1979, s 9.46
Cases Cited:	Ah Sam v Mortimer [2021] NSWCA 327 Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Browne v Dunn (1893) 6 R 67 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 Johnson v Mackinnon [2021] NSWCA 152 Payne v Mosman Municipal Council [2000] NSWLEC 25 Redland Bricks Ltd v Morris [1970] AC 652
Category:	Procedural rulings
Parties:	Rosemary Corbett (Applicant) Anita Ellen Hyde (First Respondent) Shay Patrick Hicks (Second Respondent)
Representation:	Counsel: A Pickles SC with Dr T Smith (Applicant) C Leggat SC (Respondents) Solicitors: Robertson Saxton Osborne Lawyers (Applicant) HWL Ebsworth (Respondents)
File Number(s):	2020/339309
Publication restriction:	Nil