Taluja v Shree Shirdi Sai Sansthan Sydney Limited

[2024] NSWCA 266

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Taluja v Shree Shirdi Sai Sansthan Sydney Limited [2024] NSWCA 266

Hearing dates:

4 November 2024

Date of orders:

4 November 2024

Decision date:

04 November 2024

Before:

Griffiths AJA

Decision:

1. Vacate the hearing date of 19 November 2024 to hear the summons seeking leave to appeal filed on 12 August 2024 and the applicant’s notice of motion filed on 15 March 2024.

2. The applicant is to pay the respondent’s costs up until today in respect of the notice of motion filed on 15 March 2024 and the summons seeking leave to appeal filed on 12 August 2024.

3. Grant leave to the applicant to approach the Registrar to obtain a hearing date for the hearing of prayer 1 of the notice of motion filed on 31 October 2024.

4. Reserve the costs of the motion filed on 31 October 2024.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Application to vacate appeal

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Cases Cited:

Shree Shirdi Sai Sansthan Sydney Limited v Nirmal Taluja [2014] NSWSC 1825

Shree Shirdi Sai Sansthan Sydney Limited v Nirmal Taluja (No 2) [2015] NSWSC 1180

Taluja v Shree Shirdi Sai Sansthan Sydney Limited [2016] NSWCA 158

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Dr Nirmal Taluja (Applicant)
Shree Shirdi Sai Sansthan Sydney Limited (Respondent)

Representation:

Counsel:
D Allen (Applicant)
J Mack (Respondent)

Solicitors:
Shearwater Manion McCosker (Applicant)
XD Law (Respondent)

File Number(s):

2024/296127

Publication restriction:

Nil

ex tempore JUDGMENT (revised)

1. A notice of motion filed on 31 October 2024 by the applicant came before me today as a referral. The motion has three prayers to it. The first prayer, which is perhaps the gravamen of the matter, seeks to have an order for specific performance vacated. The specific performance order was initially made by his Honour, Justice Sackar on 27 August 2015: see Shree Shirdi Sai Sansthan Sydney Limited v Nirmal Taluja [2014] NSWSC 1825. It was affirmed on appeal, by the Court of Appeal on 8 July 2016: see Taluja v Shree Shirdi Sai Sansthan Sydney Limited [2016] NSWCA 158.

2. The hearing of a summons seeking leave to appeal, which the applicant filed on 12 August 2024, as well as the hearing of a notice of motion, filed by her on 15 March 2024, are listed to be heard by the Court of Appeal, constituted by three judges on 19 November 2024.

3. The applicant now seeks that hearing date to be vacated. That application is made in circumstances where the case is not yet in any state to be heard on that day.

4. In any event, the applicant’s solicitor, Mr Goldrick, has indicated that it is the applicant’s proposal, based upon advice which I understand he has given to her, that she should lodge a fresh application for development consent with Strathfield Council. In the event that that application is unsuccessful, I understand that the intention is to re-agitate some process, to seek to have the order for specific performance vacated.

5. At the hearing today before me, Mr Allen represented the applicant, and Mr Mack represented the respondent. Mr Mack indicated that the application to vacate the hearing was not opposed. Indeed, in a sense, he supported it, because his client was in no position to be able to respond to the appeal, given the inadequate contents of the white folder that was filed on 12 August 2024.

6. In all these circumstances, I believe that it is appropriate to vacate that hearing date.

7. I understand that the parties do not oppose the Court making the following orders:

1. vacate the hearing date on 19 November 2024, to hear the summons seeking leave to appeal, filed 12 August 2024, and the applicant’s notice of motion, filed 15 March 2024;

2. the applicant to pay the respondent’s costs up until today in respect of the notice of motion, filed 15 March 2024, and the summons seeking leave to appeal, filed 12 August 2024;

3. grant leave to the applicant to approach the registrar to obtain a hearing date for the hearing of prayer one of the notice of motion, filed 31 October 2024; and

4. reserve the costs of the motion, filed 31 October 2024.

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Decision last updated: 07 November 2024