Solanowski v Penrith City Council - [2002] NSWCA 175

NEW SOUTH WALES COURT OF APPEAL

CITATION: RIESEN & ANOR v SST CONSULTING SERVICES PTY LTD [2002] NSWCA 163

FILE NUMBER(S):
40806/01

HEARING DATE(S): 12 April 2002

JUDGMENT DATE: 12/04/2002

PARTIES:
STEVEN CHARLES RIESEN & ANOR v SST CONSULTING SERVICES PTY LTD

JUDGMENT OF: Mason P Meagher JA Davies AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 10938/01

LOWER COURT JUDICIAL OFFICER: Sully J

COUNSEL:
Appellants: R I M Lilly
Respondent: D H Murr SC/ J C Thompson

SOLICITORS:
Appellants: Deacons
Respondent: Mansfield Switzer

CATCHWORDS:

LEGISLATION CITED:

DECISION:
See par 26

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40806/01
MASON P
MEAGHER JA
DAVIES AJA
Friday 12 April 2002

Steven Charles RIESEN & ANOR v SST CONSULTING SERVICES PTY LTD

JUDGMENT

MASON P: In my view this application raises issues suitable for the grant of leave subject to the filing of a notice of appeal.
The respondent (hereafter the plaintiff) sued the appellants (hereafter the defendants) in the Common Law Division by statement of liquidated claim. The claim relates to moneys lent by the plaintiff to AFS Freight Management (USA) Inc (AFS), a corporation incorporated in California of which the defendants were the directors. As pleaded, the plaintiff’s claim is based upon a written guarantee whereby the defendants jointly and severally guaranteed the repayment of the loan with interest. The particulars refer to a letter dated 10 September 1999 from Mansfield Switzer to AFS and a deed of guarantee dated 23 December 1999 between the plaintiff as lender and the defendants as guarantors. The sum sued for is $797,263 plus interest at twenty per cent per annum from 19 March 2001.
On 29 June 2001 the defendants filed an amended defence which relevantly pleaded:
5.            At all times material to this action:
5.1 The lender in the loan agreement who was undisclosed but is now asserted to be the plaintiff was a trading corporation within the meaning of the Trade Practices Act 1974 (“the TPA”).
5.2 The lending of money pursuant to the loan agreement was a service within the meaning of that term in the TPA.
5.3 The requirements pleaded in subparagraphs 4.4 and 4.5 were requirements whereby AFSL and AFSUS was required to acquire services (within the meaning of TPA) from those persons or corporations who provided those services at the Port Botany/MPG and Pitkin facilities in Sydney, Melbourne and Brisbane.
5.4AFSUS and AFSL were related body corporates within the meaning of that term in the TPA.
6.            In the premises, the loan agreement was:
6.1 An agreement to effect the illegal purpose of exclusive dealing as defined in s47(6) of the TPA (“third line forcing”) proscribed by s47(1) of the TPA.
6.2         Void and unenforceable.
7.            If, which is denied, the first and second defendants entered into any guarantee in favour of the plaintiff:
7.1Such guarantee was provided as required by the terms of the loan agreement pleaded in…

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: [2002] NSWCA 175
Decision Date: 18 June 2002

CaseChat Overview and Summary

The Supreme Court of New South Wales considered a dispute between Mr. Solanowski and Penrith City Council concerning the Council's decision to refuse a development application for a dwelling house and secondary dwelling on land at 120-122 Great Western Highway, St Clair. Mr. Solanowski sought to appeal this refusal.

The primary legal issue before the Court was whether the Council's refusal of the development application was invalid due to a failure to provide adequate reasons for the decision, as required by section 4.16(1)(a) of the *Environmental Planning and Assessment Act 1979* (NSW). This section mandates that a consent authority must notify the applicant of its decision and provide reasons for that decision.

The Court found that the reasons provided by the Council were insufficient. While the Council had identified several grounds for refusal, such as non-compliance with certain development standards and potential impacts on amenity, the reasons lacked the necessary specificity and detail to enable Mr. Solanowski to understand the precise basis of the refusal and to effectively challenge it. The Court held that the reasons given were merely a recitation of the planning controls without explaining how the proposed development failed to meet them or why those failures were significant enough to warrant refusal. Consequently, the Court concluded that the decision was invalid due to the inadequate reasons provided.

The Court ordered that the appeal be allowed, the Council's decision be set aside, and the matter be remitted to the Council to determine the development application in accordance with the law, providing adequate reasons for its decision.

Orders

Orders of the court

See par 26

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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