Teoh v Hunters Hill Council

[2009] NSWLEC 54

Land and Environment Court

of New South Wales

CITATION:

Teoh v Hunters Hill Council [2009] NSWLEC 54

PARTIES:

APPLICANT:
Elaine Teoh

FIRST RESPONDENT:
Hunters Hill Council

SECOND RESPONDENT:
Ross E Williams

FILE NUMBER(S):

40246 of 2008

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- motion to set aside judgment on ground that it was obtained by fraud - separate proceedings necessary.

LEGISLATION CITED:

Uniform Civil Procedure Rules 2005, r 36.15(1)

CASES CITED:

Hillman v Hillman [1977] 2 NSWLR 739

TEXTS CITED:

Ritchie’s Uniform Civil Procedure NSW [36.15.20]

DATES OF HEARING:

27 March 2009

EX TEMPORE JUDGMENT DATE:

27 March 2009

LEGAL REPRESENTATIVES:

APPLICANT:

Ms E Teoh, in person
SOLICITORS
n/a

FIRST RESPONDENT:
Mr J Reilly
SOLICITORS
HWL Ebsworth

SECOND RESPONDENT:
Mr R. Czinner
SOLICITORS
Ronald S Czinner & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

27 March 2009

40246 of 2008

ELAINE TEOH v HUNTERS HILL COUNCIL AND ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion filed by the applicant before the Registrar this morning. The notice of motion is couched unclearly but, among other things, it seeks an order that the court “reopen this matter on the ground of fraud”. What is there referred to is a judgment delivered by Sheahan J on 16 September 2008 in which the applicant’s Class 4 application for judicial review in relation to a development consent was dismissed with costs reserved.

2 On 3 February 2009 the respondents’ application for costs in relation to those proceedings was heard by Sheahan J. Judgment has been reserved. The notice of motion now before the Court also seeks, amongst other things, an order that the “costs hearing in this matter be stayed”. Upon my inquiry of the applicant, Ms Teoh, she explained that the basis for that stay application is the same fraud that she alleges in relation to her application to re-open the matter that was the subject of the judgment of Sheahan J on 16 September 2008.

3 The applicant also indicated to me that the notice of motion before the Court is intended to be in substitution for her notice of motion filed on 20 March 2009 seeking some of the same orders.

4 The first respondent submits that separate proceedings are necessary for the applicant to pursue her application to set aside the judgment on the ground that it was obtained by fraud.

5 The Uniform Civil Procedure Rules 2005 r 36.15(1) states:

“A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.”

6 Ritchie’s Uniform Civil Procedure NSW states at [36.15.20]:

“An application to set aside a judgment on the ground that it was obtained by fraud ought to be made in separate proceedings.”

Ritchie cites a number of cases in support of that proposition, including decisions of the High Court. I was also referred by the respondents to the judgment of Hillman v Hillman [1977] 2 NSWLR 739 (Helsham CJ in Eq) to the same effect.

7 After discussion, Ms Teoh indicated her acceptance that separate proceedings should be instituted to pursue the fraud allegation.

8 The notice of motion before me also seeks an alternative order that, if the judgment is not reopened or set aside on the ground of fraud, then it should be reopened pursuant to UCPR 36.15 or other power of the court. However, given the fraud allegation, it seems to me that the alternative, if properly formulated, should be pursued in separate fraud proceedings.

9 In these circumstances, in my opinion, the applicant’s notices of motion filed on 20 March 2009 and 27 March 2009 should be dismissed. Costs are reserved.