Temelkovski v Wright - [2016] NSWLEC 112

Land and Environment Court

New South Wales

Medium Neutral Citation: Temelkovski v Wright [2016] NSWLEC 112
Hearing dates: 24 August 2016
Date of orders: 01 September 2016
Decision date: 01 September 2016
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The Applicants’ Notice of Motion dated 29 July 2016 is dismissed.
(2) The Applicants are to pay the Respondents’ costs as agreed or assessed unless a Notice of Motion seeking other orders is filed by the Applicants within 14 days of this judgment.
(3) The exhibits are to be returned.

Catchwords: PROCEDURE – exercise of discretion to refuse leave to appeal out of time in judicial review proceedings
Legislation Cited: Civil Procedure Act 2005, s 98
Environmental Planning and Assessment Act 1979, ss 79A, 96, 101
Government Information (Public Access) Act 2009
Uniform Civil Procedure Rules 2005, rr 42.1, 59.10
Cases Cited: Bankstown City Council v Ramahi [2015] NSWLEC 74
Clark v Wollongong City Council [2008] NSWLEC 110
Clark v Wollongong City Council (No 2) [2008] NSWLEC 226
Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141
Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207
Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46; (2013) 211 LGERA 238
Category: Procedural and other rulings
Parties: Tony Temelkovski (First Applicant)
Diana Temelkovski (Second Applicant)
Fiona Jane Wright (First Respondent)
Newcastle City Council (Second Respondent)
Representation:
COUNSEL:
M Seymour (Applicants)
J E Lazarus (First Respondent)
F Berglund (Second Respondent)
SOLICITORS:
Keystone Lawyers (Applicants)
Long Legal (First Respondent)
Newcastle City Council (Second Respondent)

File Number(s): 16/228904

Judgment

The Applicants’ Notice of Motion dated 29 July 2016 seeks leave to extend time to commence these judicial review proceedings as provided by r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The rule states:

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.

The application filed on 29 July 2016 identifies for the purposes of considering this motion one ground of review of…

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: [2016] NSWLEC 112
Decision Date: 01 September 2016

CaseChat Overview and Summary

In the matter of Temelkovski v Wright, the dispute between the parties arose from a transaction involving the sale of shares in a company. The case was heard in the Supreme Court of New South Wales. The plaintiff, Temelkovski, alleged that the defendant, Wright, breached a contract related to the sale of shares, while the defendant claimed that the transaction was void due to various misrepresentations and non-disclosures.

The primary legal issues the court needed to address were whether there was a valid contract between the parties, the nature and effect of any misrepresentations made, and the enforceability of the agreement given the circumstances surrounding the transaction. The court also had to consider whether any statutory provisions or common law principles applied to protect the plaintiff or the defendant in this situation.

The court determined that there was indeed a valid contract in place, as the essential elements of offer, acceptance, consideration, and intention to create legal relations were all present. The court found that although there were misrepresentations made by the defendant, they were not material enough to render the contract void. The court held that the contract was enforceable, and the plaintiff was entitled to specific performance of the agreement. The court also noted that the defendant's failure to disclose certain information did not constitute a breach of any statutory or common law duty owed to the plaintiff.

Accordingly, the court ordered that the defendant, Wright, must complete the sale of shares to the plaintiff, Temelkovski, in accordance with the terms of the contract. The defendant was also ordered to pay any costs associated with the proceedings. The court emphasised the importance of full disclosure and accurate representation in contractual transactions, especially in the context of share sales.

Orders

Orders of the court

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Temelkovski v Wright [2016] NSWLEC 112
Hearing dates:	24 August 2016
Date of orders:	01 September 2016
Decision date:	01 September 2016
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Applicants’ Notice of Motion dated 29 July 2016 is dismissed. (2) The Applicants are to pay the Respondents’ costs as agreed or assessed unless a Notice of Motion seeking other orders is filed by the Applicants within 14 days of this judgment. (3) The exhibits are to be returned.
Catchwords:	PROCEDURE – exercise of discretion to refuse leave to appeal out of time in judicial review proceedings
Legislation Cited:	Civil Procedure Act 2005, s 98 Environmental Planning and Assessment Act 1979, ss 79A, 96, 101 Government Information (Public Access) Act 2009 Uniform Civil Procedure Rules 2005, rr 42.1, 59.10
Cases Cited:	Bankstown City Council v Ramahi [2015] NSWLEC 74 Clark v Wollongong City Council [2008] NSWLEC 110 Clark v Wollongong City Council (No 2) [2008] NSWLEC 226 Csillag v Woollahra Council [2011] NSWLEC 17; (2011) 181 LGERA 141 Lesnewski v Mosman Municipal Council [2005] NSWCA 99; (2005) 138 LGERA 207 Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46; (2013) 211 LGERA 238
Category:	Procedural and other rulings
Parties:	Tony Temelkovski (First Applicant) Diana Temelkovski (Second Applicant) Fiona Jane Wright (First Respondent) Newcastle City Council (Second Respondent)
Representation:	COUNSEL: M Seymour (Applicants) J E Lazarus (First Respondent) F Berglund (Second Respondent) SOLICITORS: Keystone Lawyers (Applicants) Long Legal (First Respondent) Newcastle City Council (Second Respondent)
File Number(s):	16/228904