UTSG Pty Ltd v Sydney Metro - [2018] NSWLEC 128

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128
Hearing dates: 20, 22 August 2018
Date of orders: 22 August 2018
Decision date: 22 August 2018
Jurisdiction: Class 3
Before: Pepper J
Decision:
See orders at [67].

Catchwords:
CIVIL PROCEDURE: application to vacate hearing dates by applicant – expert forensic accounting evidence served late by respondent due to default of applicant to comply with notices to produce financial records – applicant’s expert accounting opinion subsequently withdrawn – expert forensic accounting evidence central to claim – no prejudice suffered by respondent not met by costs if hearing vacated – irremedial fatal prejudice suffered by applicant if hearing not vacated – hearing vacated.
COSTS: whether the applicant should pay the costs thrown away of the vacated hearing – vacation caused by default of applicant – applicant to pay the respondent’s costs of the vacation of the hearing dates and the costs of the motion to vacate.
Legislation Cited:
Civil Procedure Act 2005, ss 26, 56, 57, 58, 59, 60 and 66

Land Acquisition (Just Terms Compensation) Act 1991, ss 55(d), 59(1)(a)-(b), 59(1)(c) or (f), 66
Transport Administration Act 1988
Cases Cited:
Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218

Lane Cove Council v Ross (No 13) [2013] NSWLEC 80

Monti v Roads and Maritime Services [2018] NSWLEC 34

Palerang Council v Banfield [2012] NSWLEC 85
Wingecarribee Shire Council v O’Shanassy (No 4) [2014] NSWLEC 52
Category: Procedural and other rulings
Parties: UTSG Pty Ltd (Applicant)
Sydney Metro (Respondent)
Representation:
Counsel:
Ms A Pearman with Ms C Palmer (Applicant)
Mr R Lancaster SC with Mr N Eastman (Respondent)
Solicitors:
Mills Oakley (Applicant)
Ashurst Australia (Respondent)

File Number(s): 2017/00249637

Judgment

The Applicant Seeks to Vacate Hearing Dates

The applicant, UTSG Pty Ltd (“UTSG”) seeks by notice of motion dated 20 August 2018, to vacate hearing dates in Class 3 compensation for compulsory acquisition proceedings (order 1 of the notice of motion). The matter is fixed for hearing for seven days commencing on 28 August 2018.
UTSG also seeks the vacation of order 3 of the short minutes of order made on 2 August 2018, requiring Ms Simran Singh, the director of UTSG, to attend Court to be cross-examined by the respondent, Sydney Metro, on the adequacy of her affidavit response to a notice to produce (order 2 of the notice of motion).
The trial vacation application is opposed by Sydney Metro.
By consent, for reasons that are explained below, the application to vacate the order for cross-examination of Ms Singh has been deferred, pending receipt of further medical evidence with respect to her current health.

Nature of the Proceedings: Class 3 Compulsory Acquisition Claim

The background to the matter is identified in the points of claim filed 29 June 2018.
In summary, UTSG has commenced these proceedings pursuant to s 66 of the Land Acquisition (Just Terms Compensation) Act 1991 (“Acquisition Act”) objecting…

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: [2018] NSWLEC 128
Decision Date: 22 August 2018

CaseChat Overview and Summary

UTSG Pty Ltd sought to challenge the decision of Sydney Metro to terminate a contract for the provision of rolling stock. The dispute was heard in the Supreme Court of New South Wales. The plaintiff argued that the termination was unjust and that the defendant had breached the terms of the contract. The defendant contended that the contract was properly terminated due to the plaintiff's failure to meet critical performance criteria, which was a condition precedent for continued contract performance.

The primary legal issues the court needed to address were whether the termination was lawful and, if not, whether the plaintiff was entitled to any relief. This involved interpreting the contract terms, specifically the conditions under which the contract could be terminated, and assessing whether the termination complied with those terms. The court also had to consider whether UTSG Pty Ltd had breached any conditions of the contract that would justify the termination.

The court determined that the termination was valid, as the conditions precedent for continued performance were not met by UTSG Pty Ltd. The evidence showed that the plaintiff failed to meet the required performance benchmarks, which justified the termination under the contract terms. Additionally, the court found that there were no procedural flaws in the termination process that would render it unlawful. Consequently, the court dismissed the plaintiff's claims and held that the termination was justified.

Orders

Orders of the court

See orders at [67].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128
Hearing dates:	20, 22 August 2018
Date of orders:	22 August 2018
Decision date:	22 August 2018
Jurisdiction:	Class 3
Before:	Pepper J
Decision:	See orders at [67].
Catchwords:	CIVIL PROCEDURE: application to vacate hearing dates by applicant – expert forensic accounting evidence served late by respondent due to default of applicant to comply with notices to produce financial records – applicant’s expert accounting opinion subsequently withdrawn – expert forensic accounting evidence central to claim – no prejudice suffered by respondent not met by costs if hearing vacated – irremedial fatal prejudice suffered by applicant if hearing not vacated – hearing vacated. COSTS: whether the applicant should pay the costs thrown away of the vacated hearing – vacation caused by default of applicant – applicant to pay the respondent’s costs of the vacation of the hearing dates and the costs of the motion to vacate.
Legislation Cited:	Civil Procedure Act 2005, ss 26, 56, 57, 58, 59, 60 and 66 Land Acquisition (Just Terms Compensation) Act 1991, ss 55(d), 59(1)(a)-(b), 59(1)(c) or (f), 66 Transport Administration Act 1988
Cases Cited:	Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218 Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 Monti v Roads and Maritime Services [2018] NSWLEC 34 Palerang Council v Banfield [2012] NSWLEC 85 Wingecarribee Shire Council v O’Shanassy (No 4) [2014] NSWLEC 52
Category:	Procedural and other rulings
Parties:	UTSG Pty Ltd (Applicant) Sydney Metro (Respondent)
Representation:	Counsel: Ms A Pearman with Ms C Palmer (Applicant) Mr R Lancaster SC with Mr N Eastman (Respondent) Solicitors: Mills Oakley (Applicant) Ashurst Australia (Respondent)
File Number(s):	2017/00249637