Stockland Development Pty Limited v Manly Council

[2009] NSWLEC 159

Land and Environment Court

of New South Wales

CITATION:

Stockland Development Pty Limited v Manly Council [2009] NSWLEC 159

PARTIES:

APPLICANT
Stockland Development Pty Limited

RESPONDENT
Manly Council

FILE NUMBER(S):

10616 of 2009

CORAM:

Pepper J

KEY ISSUES:

PRACTICE AND PROCEDURE :- application for expedition - expedition granted

LEGISLATION CITED:

Civil Procedure Act 2005 ss 56, 57 and 58

DATES OF HEARING:

9 September 2009

EX TEMPORE JUDGMENT DATE:

9 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Robson SC
SOLICITORS
Deacons

RESPONDENT
Mr J Johnson
SOLICITORS
Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

9 September 2009

10616 of 2009 Stockland Development Pty Limited v Manly Council

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: This is a notice of motion brought by Stockland Development Pty Limited (“Stockland”) seeking expedition of a class 1 appeal against Manly Council’s (“the Council”) deemed refusal of a subdivision certificate for the registration of a plan to subdivide Balgowlah Village into three separate stratum lots including a residential lot, a retail lot and a lot for the Masonic Club (“the development”).

2 The order for expedition is opposed by the Council.

Evidence and Submissions of Stockland

3 The applicant relies on the affidavit of Mr Timothy John Beattie sworn 31 August 2009. Mr Beattie is the Development Manager, Apartments, for Stockland.

4 By way of background, Mr Beattie deposes that consequence upon court orders being entered on 15 July 2009, Stockland lodged with the council an application for the issue of a subdivision certificate to subdivide the development into three stratum lots. In the period following 15 July 2009, Stockland and the council held discussions in an attempt to reach agreement in relation to the certificate application. On 21 August 2009, Stockland amended the certificate application. At the time of the swearing of Mr Beattie’s affidavit, however, the certificate application remained undetermined.

5 Mr Beattie attests that following the stratum subdivision of the development, Stockland will seek to subdivide the residential stratum lot into 234 separate strata lots. Stockland already has development consent for the stratum division of the three stratum lots and for the further strata division of the residential stratum lot into 234 separate strata lots. It is Stockland’s intention to sell all individual 234 lots. In this regard Stockland has entered into a number of contracts for the sale of individual lots on terms that the sale transfers are to be completed on 14 days’ notice.

6 Mr Beattie deposes that Stockland will suffer significant financial loss if the determination of the stratum subdivision certificate application is further delayed. This is because, he states, the delay in issuing the subdivision certificate will prevent Stockland from registering the residential stratum lot on title which will in turn prevent Stockland from subdividing the stratum lot into 234 separate strata lots. Thus Stockland will be prevented from being able to settle the individual strata lots.

7 Mr Beattie further deposes that Stockland must pay bank interest on a combined sum of $106.7 million for each month that the sale of the strata units, which are already the subject of sale contracts, is delayed. Further, a number of prospective purchasers who have entered into contracts of sale with Stockland for the sale of individual strata lots have expressed concern to Mr Beattie that they will be significantly inconvenienced and financially prejudiced if the completion of their sale contracts is further delayed.

Evidence and Submissions of the Council

8 The council does not have any evidence in reply or indeed any evidence at all in answer to the motion.

9 The council opposes the application for expedition on the basis that it has agreed to have the matter dealt with urgently by the Court. That is to say, it has agreed to have the matter set down for hearing on the dates sought by Stockland, namely, 29 and 30 September 2009, and it has proposed an appropriate timetable to ensure that the matter is ready to be heard on those dates. In these circumstances, therefore, the council submits that an order for expedition is not necessary.

Reply Submissions of the Parties

10 Notwithstanding the consent by the council to an urgent hearing, Stockland nevertheless pursues an order for expedition. It does so, as I understand its submission, because it wants the comfort of an order from the Court that the matter is to be expedited to guard against any further delay given the history of the development to date.

11 The council argues that to seek expedition on this basis amounts to an abuse of process.

Consideration

12 In my view, the unchallenged and unanswered evidence of Mr Beattie provides a sufficient basis for the order for expedition without the Court having to determine any issue of abuse of process.

13 In deciding to make this order, I have acted in accordance with the dictates of justice pursuant to s 58 of the Civil Procedure Act 2005 and, in particular, I have had regard to the overriding purpose in s 56 of that Act to the just, quick and cheap resolution of the real issues in the proceedings and to the objects of case management set out in s 57. In the circumstances of this case, the dictates of justice are best served by granting the relief sought. This conclusion was reinforced by Stockland waiving its costs of the motion.

Conclusion and Orders

14 The orders of the Court are therefore that:

(1) the appeal be expedited;

(2) the appeal be set down for hearing for two days on 29 and 30 September 2009; and

(3) orders be made in accordance with the short minutes of order handed up as amended by me, dated, initialled and placed on the Court file.

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