Sydney Advantage Investments Pty Ltd v Deep River Group Pty Ltd T/as Precise Planning

[2018] NSWLEC 151

Land and Environment Court

New South Wales

Medium Neutral Citation:	Sydney Advantage Investments Pty Ltd v Deep River Group Pty Ltd T/as Precise Planning [2018] NSWLEC 151
Hearing dates:	19 September 2018
Date of orders:	19 September 2018
Decision date:	21 September 2018
Jurisdiction:	Class 4
Before:	Moore J
Decision:	(1) Leave is granted pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 extending the time until 9 July 2018 for the Applicant to commence these proceedings; and (2)   The Applicant is granted leave to rely upon the Amended Summons which was annexed to the Applicant's Notice of Motion.
Catchwords:	JUDICIAL REVIEW - application for extension of time to commence proceedings - arguable case established - adequate explanation for delay - balancing interests warrants granting extension - extension granted
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 4.59, 9.45 Land and Environment Court Act 1979, s 34(3) Conveyancing Act 1919, s 88K
Cases Cited:	Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146
Category:	Procedural and other rulings
Parties:	Sydney Advantage Investments Pty Ltd (Applicant) Deep River Group Pty Ltd T/as Precise Planning (First Respondent) Kevin Samuel Morris (Second Respondent) David Greene Properties Pty Ltd (Third Respondent) Phillip Leonard Turner and Leonie Patricia Turner (Fourth Respondent) Focopu Pty Ltd (Fifth Respondent) Wollondilly Shire Council (Sixth Respondent)
Representation:	Counsel: Mr P McEwen SC/Ms A Pearman, barrister (Applicant) Mr S Nash, barrister (First to Fifth Respondents) Submitting appearance (Sixth Respondent)   Solicitors: Ernst & Young (Applicant) Shaw Reynolds (First Respondent) Mitry Lawyers (Second to Fifth Respondents) Marsdens Law Group (Sixth Respondent)
File Number(s):	210598 of 2018
Publication restriction:	No

TABLE OF CONTENTS

The provision in the Uniform Civil Procedure Rules 2005

The basis of SAI’s challenge

The evidence on the motion

The relevant chronology

What is not engaged in the proceedings?

The basis for SAI’s challenge

Mr Sartor's cross-examination

Consideration

Introduction

SAI has a fairly arguable case

Delay

Prejudice

Orders

Annexure A

Judgment

1. In Thirlmere, a semi-rural area some 70 kilometres south-west of the Sydney CBD, Sydney Advantage Investments Pty Ltd (SAI) has development approval from Wollondilly Shire Council (the Council) for a large residential subdivision. The Second, Third, Fourth and Fifth Respondents (collectively MSC) also have development consent from the Council for a residential subdivision in Thirlmere. MSC’s subdivision is upslope (and, hence, upstream in a stormwater drainage sense) from SAI’s subdivision.

2. As a consequence of a dispute between SAI and MSC concerning drainage and disposal arrangements for stormwater from the MSC subdivision, SAI filed, on 9 July 2018, a Summons in this Court challenging the validity of MSC’s development consent. As MSC’s development consent was granted by the Council on 30 June 2016, SAI’s proceedings have been filed a little over two years after the granting of that development consent.

3. Because, amongst other matters sought by SAI, is a declaration that MSC’s development consent is invalid and that this is a jurisdictional point, SAI adopts the initial position consistent with the decision of the High Court in Kirk v Industrial Relations Commission of New South Wales;Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 (Kirk) that no statutory time bar can act to prevent its commencement of proceedings. This, it is submitted by SAI, is a complete answer to any complaint by MSC about the timing of the commencement of proceedings. However, in a cautionary fashion, SAI filed a Notice of Motion on 28 August 2018 seeking the following orders:

1. If leave be required, that pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005, the Applicant be granted leave to extend the time of commencement of these proceedings to 9 July 2018, the date of filing these proceedings; and

2. The Applicant be granted leave to rely upon the Amended Summons (which was annexed to the Notice of Motion).

4. The Notice of Motion was heard by me on 19 September 2018. At the conclusion of the proceedings, I indicated to the parties that the orders of the court would be:

1. Leave is granted pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 extending the time until 9 July 2018 for the Applicant to commence these proceedings; and

2. The Applicant is granted leave to rely upon the Amended Summons which was annexed to the Applicant's Notice of Motion.

5. I also indicated that I proposed that costs of the motion be costs in the cause but that the parties would have the opportunity, if they wished to do so, to be heard on the question of costs at the time of publication of my reasons for making the orders.

6. I indicated that I would publish my reasons on 21 September 2018 and these are those reasons.

The provision in the Uniform Civil Procedure Rules 2005

7. It is, first, appropriate to set out the terms of r 59.10 of the Uniform Civil Procedure Rules 2005 (UCPR). It is as follows:

59.10   Time for commencing proceedings

(1)   Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.

(2)   The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).

(3)   In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following:

(a)   any particular interest of the plaintiff in challenging the decision,

(b)   possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c)   the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d)   any relevant public interest.

(4)   This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.

(5)   This rule does not apply to any proceedings in which the setting aside of a decision is not required.

8. As I have earlier noted, Mr McEwen SC appearing for SAI, submitted that r 59.10(4) was not engaged as a consequence of the High Court's decision in Kirk, despite the existence of a statutory bar in s 4.59 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) which might otherwise have acted as a privative barrier to the commencement of the proceedings.

9. Similarly, in reliance on Kirk, Mr McEwen submitted that leave was not strictly required for an extension of time pursuant to r 59.10(2) for similar reasons.

10. Given that I have concluded that an extension of time pursuant to r 59.10(2) would be appropriate to be granted to SAI, it is not necessary for me to address this latter submission.

11. Mr Nash, barrister for MSC, opposed the granting of the extension of time.

12. It is also appropriate to note that the First Respondent and the Council have entered submitting appearances (save as to costs) in the proceedings.

13. Although it has been asserted that the Council has admitted some fault in the dispute that now arises between SAI and MSC concerning the proposed drainage of stormwater from MSC’s subdivision and is said to have offered to contribute one-third of the cost of rectification, I do not have regard to this position (even if it is correct) for the purposes of this consideration.

The basis of SAI’s challenge

14. In the development consent granted by the Council to MSC on 30 June 2016, there are a number of conditions under the heading “(9) Drainage/stormwater” which are engaged in the dispute between SAI and MSC (matters relevant given that I have determined that an extension of time should be permitted). The determination states that:

These conditions have been imposed to ensure drainage/stormwater is appropriately managed.

15. There are 12 conditions imposed under this heading. Four of them are relevant, potentially, in a substantive hearing of SAI's Application, and are, therefore, relevant to my consideration of the question of whether or not SAI has a sufficiently arguable case (this being one of the matters requiring consideration on an application for an extension of time) if the extension was to be granted:

(2)   Stormwater run-off from all impervious surfaces on the property shall be collected and conveyed to a point suitable for integration within either the natural or constructed stormwater drainage system.

(3)   The Applicant shall provide a drainage system including on-site detention and bio-retention generally, as shown on the submitted Concept Stormwater Management Plan dated June 2015, and the Concept Drainage Plan dated 29 July 2015 from Martens & Associates P/L.

(5)   The person or company who has the benefit of this consent shall, at no cost to Council, carry out any necessary amplification or upgrading of the downstream system, including the negotiation and dedication of appropriate easements.

(8)   The stormwater drainage discharge point from the subject site shall be provided with no impact on the adjoining property. Details shall be included on the engineering plans for approval.

The evidence on the motion

16. Affidavit evidence on the motion was given on behalf of SAI by:

• Affidavit of Mr Christopher Thomas (29 August 2018);

• Affidavit of Mr Raymond Engelbrecht (26 August 2018); and

• Affidavit of Mr Frank Sartor (27 August 2018).

17. Only Mr Sartor was required by Mr Nash for cross-examination.

18. The evidence on behalf of MSC was contained in two affidavits of Mr David Greene (dated 6 and 17 September 2018). Mr Greene was not required for cross-examination.

19. Mr Sartor's cross-examination was of comparatively limited compass as is discussed later.

The relevant chronology

20. It is necessary, for the purposes of understanding the matters in contention and my resolution of them, to set out but a small selection of the dates contained in the chronology tendered by SAI (Exhibit B). The relevant dates are:

• August 2015, SAI lodges development application with the Council for its proposed subdivision;

• 30 June 2016, MSC granted development approval from the Council for its proposed residential subdivision (including the drainage/stormwater conditions earlier discussed);

• 23 August 2016, agreement pursuant to s 34(3) of the Land and Environment Court Act 1979 between the Council and SAI resulting in development consent being granted from the appeal commenced by SAI. Amongst the plans approved by the Court orders was a Concept Drainage Plan (Exhibit A, Tab 1, folio 1). A copy of this plan is Annexure A to these reasons. Toward the centre of this plan can be seen marked a drainage flow shown as External Catchment C1, with that drainage flow passing down the western edge of Lot 16;

• 8 September 2016, meeting at offices of a consultancy to SAI (Advissian). During the course of this meeting, a copy of the Concept Drainage Plan noted above was provided to those representing MSC;

• 24 May 2017, Council grants a construction certificate to MSC for its proposed subdivision. These plans were Annexure B to Mr Greene's affidavit of 17 September 2018. Drawing 15912D Civils is the Bio‑Retention and On-Site Detention Basin Plan. On this plan there is a handwritten note (to be inferred as having been placed there by the relevant Council officer) saying:

The developer and the contractor are to work with the adjoining site developer (60 Rita Street, 18 Rita Street, Lot 8 DP 245153, Lot 6 DP 24513-Parcel 7582, 7591, DA 010.2015.0000614.001) for the design and construction. It is necessary for a stormwater drainage connection to the downstream adjacent site, with a pit-and-pipe, including overland flow path on the appropriate alignment and levels;

• June 2017, MSC commences construction of the on-site detention basin on its land and a bund wall on the boundary of its land with the SAI land;

• 10 June 2017, the Council grants a construction certificate to SAI. The construction certificate plans include a Stormwater Layout Plan (Exhibit C). This plan shows drainage arrangements for collection and transmission through SAI's land for stormwater collected on, and to be discharged from, MSC’s land in a fashion on all fours with the plan provided to MSC's representatives on 8 September 2016;

• 5 February 2018, Mr Sartor inspects the site and forms the opinion that the discharge point from the on-site detention basin constructed by MSC may not coincide with the proposed location on the SAI plans as anticipating stormwater from the MSC lands being discharged for collection and transmission consistent with the location depicted on Annexure A to this decision;

• 19 February 2018, survey prepared for SAI shows that MSC’s detention basin discharge points located are located to the west of the location depicted on Annexure A and will, as a consequence, discharge stormwater onto Lot 17 of the SAI subdivision rather than through the easement within Lot 16 (along its western edge) provided for for this purpose;

• 9 July 2018, Class 4 summons filed;

• 28 August 2018, Notice of Motion seeking extension of time for commencement of proceedings filed.

21. The chronology (Exhibit B) sets out matters relevant as occurring between Mr Sartor's inspection on 5 February 2018 and the filing of the Summons.

22. First, it is to be observed that Mr Thomas wrote to Mr Sartor on 23 February 2018. Mr Thomas addressed the question of the design of the MSC on-site detention basin and its discharge points. It is unnecessary to set out much of the detail of Mr Thomas’s letter. It is sufficient to note that it was Mr Thomas’s opinion (as expressed in the letter to Mr Sartor) that the MSC works were not constructed according to plans prepared by D & M Consulting Pty Ltd for MSC and also that the discharge point was located so that water would discharge into Lot 17 of the SAI subdivision. Mr Thomas wrote (Exhibit A, Tab 9, folio 258):

The outlet structure incorporates provision for three discharge pipes and an overflow weir which, if maintained, will discharge directly into Lot 17. Based on the survey provided by ASS, the two larger outlet pipes have invert levels that will be approximately 0.4 metres above the design land surface at the rear of Lot 17. Therefore, if the works were to be retained as constructed, both low flows and overland flows will freefall into Lot 17, much like a waterfall.

23. In the same letter (at folio 259), Mr Thomas expressed an opinion as to what needed to be done to rectify this conflict between the MSC structure and that which had been approved for the SAI subdivision. Mr Thomas wrote:

In order to address the issue, I believe that the owners of the MSS need to reassess the stormwater drainage design that has been adopted and establish whether the as-constructed works can be retrofitted to direct all discharges from the MSS site to the dedicated easement located within Lot 16 of the SAI development. This assessment should also consider the invert levels of outlet pipes from the OSD basin and safety issues associated with any discharges from the OSD basin spillway onto adjoining land.

24. On 21 March 2018, Mr Sartor forwarded to Mr Greene (Mr Greene being the representative of MSC for the purposes of these discussions), a copy of Mr Thomas’s letter.

25. Between that date in March 2018 and the commencement of these proceedings, the chronology notes a series of written and oral exchanges between representatives of SAI and of MSC seeking to resolve the matters now in dispute between SAI and MSC. It is sufficient to note, for these purposes, that there was a continuing exchange of communications - communications, which, in the end, were unable to resolve the matters in dispute.

What is not engaged in the proceedings?

26. It is appropriate to observe a number of other matters that could potentially be litigated between SAI and MSC but which are not engaged by the present proceedings.

27. First, although SAI has a survey dated 25 June 2018 which shows that the footings of the MSC retaining wall for the OSD have been constructed on SAI’s land, no proceedings pursuant to s 9.45 of the EP&A Act have been commenced by SAI to seek to remedy or restrain the breach of the Act that arises from MSC carrying out construction on SAI’s land without owner’s consent for that construction. A copy of this survey plan was in evidence (Exhibit A, Tab 24, folio 326).

28. Second, no application has been made, pursuant to s 88K of the Conveyancing Act 1919, by MSC seeking in easement over any of the SAI land for the purposes of stormwater to be discharged from the MSC land as a consequence of MSC’s subdivision development. It is to be remembered that Condition 9(5) of MSC's development consent, as earlier set out, purported to impose a requirement that MSC obtain, relevantly, such an easement.

29. In addition, as I observed to the parties during the course of the hearing, the position was that Condition 9(3) of MSC's development consent required provision of a drainage system as shown on the Concept Stormwater Management Plan dated June 2015 and the Concept Drainage Plan dated 29 July 2015 from Martens & Associates P/L.

30. These documents were in evidence (Exhibit A, Tab 3, folios 37 to 128).

31. Neither party to these proceedings had observed that these documents not only relate to MSC's land but also relate to an additional parcel (Lot 53 DP 21549), which is not the subject of the MSC development consent granted on 30 June 2016.

32. The question of whether or not the elements called up by the documents mentioned in Condition (9)(3) of the MSC development consent impose requirements on MSC that are not able to be undertaken as a consequence of works being required on land not the subject of the development consent is a matter also not contemplated (at least on the present pleadings) in these proceedings.

The basis for SAI’s challenge

33. The complaint which SAI makes about the drainage/stormwater conditions in the MSC development consent are based on an allegation (to be agitated in the substantive proceedings if the extension of time is granted) that Condition 9(5) lacks finality and certainty. As SAI put in its written submissions:

It is submitted the conditions of consent need to be sufficiently certain, such that the consent neither:

•   leaves open an opportunity or avenue for the resulting development to be significantly different to that approved; nor

•   leaves important aspects unresolved or reserved for later determination.

34. SAI relies on Mison v Randwick Municipal Council (1991) 23 NSWLR 734 as support for these propositions. The propositions, in my assessment, accurately reflect what is to be drawn from Mison. It therefore falls for me to consider whether Condition 9(5), sufficiently arguably, offends against these requirements as to provide a sufficiently arguable case to warrant exercising discretion to permit the matter to go forward.

35. As I understood Mr McEwen's oral submissions, an additional element of uncertainty, in a Mison sense, arises from the first sentence of Condition 9(2), earlier set out, in that the question of whether the stormwater discharge should be managed through either transmission by a natural stormwater drainage system or by a constructed system is left as uncertain.

36. The position adopted by Mr Nash, in response to a question from me, was that MSC intended to press that its discharge would be via a natural watercourse.

37. In this regard, it is to be observed that the Council’s evaluation of the MSC development proposal, undertaken pursuant to what was s 79C (now s 4.15) of the EP&A Act has not been considered by me on this point. In this context, it is to be observed that a copy of this evaluation was in evidence (Exhibit A, Tab 6, folios 187 to 252) but the document, as reproduced in the exhibit, was incomprehensible. A separate copy was provided to permit an understanding of its contents.

34. It is sufficient to note that there were points of this assessment (for example, on folio 204) casting doubt on whether natural watercourse discharge was possible in the sense sought to be embraced by Mr Nash.

35. The question of whether or not this evaluation document is admissible in any consideration of SAI's complaint, in a substantive sense, is a matter which does not require my consideration at this point.

36. It is sufficient for me to observe that, on the case advanced by SAI, I am satisfied that there is a sufficiently arguable case advanced by it with respect to lack of certainty concerning the drainage/stormwater conditions in the MSC consent to found a basis for considering permitting the Class 4 proceedings to advance to substantive hearing.

Mr Sartor's cross-examination

41. Mr Nash cross-examined Mr Sartor on matters of comparatively narrow compass relevant for my consideration on this motion.

42. The first topic addressed was seeking to have Mr Sartor explain why, between the construction by MSC of its on-site detention structure (commenced in June 2017 and concluded in October 2017), Mr Sartor had not been aware of these activities.

43. Mr Sartor explained that, during the period between the granting of the development consent in August 2016 and his site inspection in February 2018 (when he became aware of the MSC stormwater structure for the first time), he had been focused entirely on legal and financing matters associated with the development consent. It was his response that, until those matters had been sorted out, he had not undertaken a visit to the site during any period when MSC is drainage construction activities could have been observed.

44. Mr Sartor indicated that, as soon as he had undertaken the inspection in February 2018 and formed the impression that the MSC structure might not be in the location he understood was to be expected, he had promptly commissioned expert advice on this point, including from the surveyor whose report had been provided to him on 19 February 2018.

45. It was also his evidence that, between the 5 February 2018 date and the commencement of these Class 4 proceedings, there had been extensive and intensive attempts to resolve the matter by negotiation.

46. The second topic about which Mr Sartor was cross-examined were elements of (58) of his affidavit. In (58), Mr Sartor identified seven matters which he believed would cause SAI “to suffer substantial detriment, unless the following issues concerning the OSD basin are properly examined and rectified as may be required.”

47. Of the seven matters listed by Mr Sartor in (58), a number of them (particularly (b) and (c)) are not matters at present capable of being engaged as a consequence of the Summons commencing these Class 4 proceedings. The primary matter listed by Mr Sartor, in (58), relevant for this assessment by me, is that set out in (58)(a), an element in the following terms:

The mislocation of the OSD outlet by MSC currently directing stormwater into SAI Lot 17 making it unsuitable for residential development. Unlike Lot 16, Lot 17 is not designed to act as an overland flowpath. The use of this lot as an overland flowpath would constitute a safety hazard for neighbouring residential properties. Lot 17 has been sold for $316,000.

Consideration

Introduction

48. There is no doubt that there is a discretion to extend the time for commencing proceedings provided for in r 59.10(2). In considering whether to grant such an extension, r 59.10(3) sets out four matters which should be taken into account in considering whether or not to grant an extension. Those matters, in r 59.10(3)(a) to (d) were earlier set out. The list is not to be regarded as exhaustive.

49. In Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146, an extempore decision given by Pepper J on the day I heard this application for extension, her Honour set out the relevant principles for consideration when determining an application for an extension of time to be granted pursuant to r 59.10(2). Her Honour's summary was in the following terms (at [34]:

They may be summarised as follows:

(a)   the applicant bears the onus of establishing why the Court should exercise its discretion to extend time in his or her favour;

(b) the factors to be considered on any application for leave to extend time are not limited to those in r 59.10 of the UCPR, but include:

(i)   the length of the delay;

(ii)   the reasons for the delay (noting that the failure to seek    legal advice is not a compelling explanation); and

(iii)   whether the applicant has a fairly arguable case;

(c)   the weight to be given to relevant factors will depend upon the circumstances of the particular case and will require the Court to carry out a balancing exercise;

(d)   the question of potential prejudice to a party caused by the delay is a significant consideration;

(e) the rule of law is strengthened by provisions such as r 59.10 of the UCPR requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced;

(f) in considering r 59.10 of the UCPR, it should be borne in mind that a claimant cannot fairly be criticised for failing to take action before he or she knew, or by exercising reasonable diligence should have known, that there was anything to take action about (Regional Express Holdings Ltd v Dubbo City Council (No2) [2013] NSWLEC 113 at [7] and Moorebank Recyclersat [14]);

(g)   in considering delay in an application for extension of time the Court has frequently made a distinction as to the unreasonableness of the delay on the basis of intention. There is a difference between intentional or contumelious delay (Tomko v Palasty (No2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [56], that is, delay caused by “deliberate inaction” (IPMat [82]) or “an intentional decision to delay” (MoorebankRecyclersat [52]), and delay which is merely the result of a “bona fide mistake or blunder” (Tomkoat [56]), mere “oversight” (IPMat [82]), or caused by seeking to clarify rights and trying to solve the matter without litigation (Yves Deyrisat [13]); and

(h) there is danger in placing too much emphasis on the prospects of success. To do so invites the parties to treat the application as a dress rehearsal for the full appeal (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). It is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case. It is not necessary nor appropriate to demonstrate in any detail the prospects of success (Tomkoat [58]).

50. I gratefully adopt her Honour's summary. With respect to the matters that were there set out by her Honour, I observe that the exercise I am here undertaking the analysis mandated by (b) of her Honour’s points. I now turn to address the various merit matters which I am required to balance.

51. As I indicated to the parties during the course the hearing, although there is no objection pressed by Mr Nash, on behalf of MSC, in objection to the proposed Amended Summons, the application for an extension of time must be assessed against the Summons commencing the proceedings itself and confined to that document.

SAI has a fairly arguable case

52. I have, earlier, set out the basis upon which I am satisfied I can conclude that SAI has a fairly arguable case based on the matters set out in the initiating Summons.

Delay

53. I am satisfied on the basis of the uncontradicted evidence given by Mr Sartor that there was nothing unreasonable in him not becoming aware, in a definite sense, about potential difficulties arising from the structure which MSC had erected until he received the relevant confirmation from the surveyor on 19 February 2018. On the basis of his evidence, the fact that he was otherwise significantly engaged in legal and financial matters, between the completion of the MSC structure in October 2017 and his site visit in early February 2018, does not constitute any unreasonable delay on behalf of SAI (particularly when, on Mr Sartor's evidence, he was the primary active one of the two directors of SAI).

54. I also do not consider that the delay between February 2018 and the filing of the Summons commencing these proceedings should be regarded as being in any way disentitling, given that the chronology in Exhibit B (not contested by MSC) clearly demonstrates considerable activity on behalf of SAI with MSC to seek to resolve this matter without the necessity for litigation.

Prejudice

55. The primary basis upon which Mr Nash resisted the extension of time (in addition to the matters which I have already addressed) was the substantial prejudice which was said would arise to MSC if SAI was to be granted the extension of time which it seeks.

56. Mr Greene’s affidavit of 6 September 2018 sets out, from (25) to (34), the prejudice which is said will arise to MSC and its component individuals or entities if SAI was permitted to run its pleaded case and if it was to be successful in it.

57. These impacts are said to arise, not only as a consequence of the some $10 million already expended by MSC on its development, but also as a consequence of the fact that a number of the individuals or entities comprising MSC have entered into contracts for sale of allotments within the portion of the MSC subdivision attributable to the relevant individual or entity.

58. Each of the matters pressed on the basis of prejudice (as strongly argued by Mr Nash) are matters of prejudice that are said to arise, at least in major part, as a consequence of the uncertainty which will arise if the extension of time is granted and proceedings continue to adjudication.

59. These prejudices, however, need to be balanced against what I am satisfied appear to be the potential significant detriment to SAI if it is not permitted to seek to challenge MSC's activities where, on the basis of the provision by SAI to MSC of its proposed drainage arrangements in September 2016, coupled with the express notation, earlier set out, put on the MSC construction certificate plan at the time of its approval by the Council on 24 May 2017, some elements of the risk to MSC might fairly be arguable to be self-inflicted (a matter I do not need to determine).

60. However, taken overall, it seems to me that in the balancing of the competing potential prejudices, the scales are tipped slightly in favour of SAI with the consequence that the orders I proposed on 19 September 2018 were those appropriate in the circumstances in order to ensure that SAI would have the opportunity to test the matters of concern raised by it in these proceedings.

Orders

61. The orders of the Court, therefore, are:

1. Leave is granted pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 extending the time until 9 July 2018 for the Applicant to commence these proceedings; and

2. The Applicant is granted leave to rely upon the Amended Summons which was annexed to the Applicant's Notice of Motion.

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Annexure A

Decision last updated: 21 September 2018