Waverley Council v Refkin Pty Ltd - [2000] NSWSC 242

CITATION: Waverley Council v Refkin Pty Ltd [2000] NSWSC 242

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1359/2000

HEARING DATE(S): 09/03/2000

JUDGMENT DATE: 9 March 2000

PARTIES :

Waverley Council (P)
Refkin Pty Limited (D)

JUDGMENT OF: Young J

COUNSEL : M B Evans (P)
V R W Gray (D)

SOLICITORS: M E McMahon & Associates (P)
Gye Associates Lawyers (D)

CATCHWORDS: Local Government [244]- Consent validity- Low cost housing- Supreme Court normally follow Land and Environment Court on these issues. - Local Government [275]- Supreme Court- Challenge to jurisdiction- Mareva injunction application- Plaintiff objects to court considering basic issues- Proceedings dismissed.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 94, 101
Land and Environment Court Act 1979, s 71

CASES CITED: Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (NSWLEC 20)

DECISION: Proceedings dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG J

THURSDAY 9 MARCH 2000
1359/00 - WAVERLEY COUNCIL V REFKIN PTY LTD
JUDGMENT
1    HIS HONOUR: The plaintiff Council sues in this court for a Mareva injunction to prevent a builder selling the last unit in a development that could meet a condition in the development application that it be dedicated for low cost housing.
2    The matter came before me last week. It ran into difficulties and was adjourned until today. Today Mr M Evans for the plaintiff, submitted that this court had no jurisdiction to decide the basic issues that arise, and that I should adjourn it until those issues had been considered by the Land and Environment Court.
3    Essentially, the facts are that the defendant for whom Mr V Gray of counsel appears, obtained a development consent from the plaintiff and from the Land and Environment Court on appeal. One of the purported conditions of the consent was:-

"(2) That a 1 x 1 bedroom unit is to be transferred to Council in perpetuity within two months of the Strata Plan being registered. This unit is to be managed by a local community group to provide permanent and safe housing in accordance with Council's Affordable Housing Program."

4    There was no appeal against that condition.
5    The material before the court suggests that the condition has not been complied with. There is also some material to suggest that the defendant is about to dispose of the last of the units in the block without conveying anything to the Council.
6 On 14 February 2000 the Council issued a summons out of this court, seeking by way of final relief an order that the remaining unit be transferred to it. Alternatively, the Council seeks damages under s 68 of the Supreme Court Act, that is, damages under Lord Cairns Act. It also sought wrongly, though incidentally under the heading "by way of interim relief", a Mareva injunction.
7    The matter came before me last week, and I was very much influenced by the fact that on 18 February 2000 Cowdroy J in Meriton Apartments Pty Ltd v…

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: [2000] NSWSC 242
Decision Date: 9 March 2000

CaseChat Overview and Summary

The case of Waverley Council versus Refkin Pty Ltd was heard in the Supreme Court of New South Wales. The dispute centred around the validity of a consent granted by the Council to Refkin for the construction of low-cost housing. The Council challenged the consent's validity, leading to a complex legal battle that eventually reached the Supreme Court. The Land and Environment Court had previously ruled on similar issues, establishing a precedent that the Supreme Court was generally expected to follow.

The legal issues before the Supreme Court encompassed the validity of the consent granted by the Council and the applicability of the precedent set by the Land and Environment Court. Additionally, the court had to consider whether it had the jurisdiction to hear an application for a Mareva injunction, a legal tool used to freeze assets to secure a potential judgment. The plaintiff, Refkin, contested the court's consideration of the basic issues, asserting that the Supreme Court should not proceed unless certain procedural requirements were met.

The Supreme Court found that the plaintiff's objections to the court's consideration of the basic issues were well-founded, leading to the dismissal of the proceedings. The court determined that the plaintiff's arguments regarding the court's jurisdiction and the procedural requirements were valid, thereby preventing the application of the Mareva injunction. Consequently, the Supreme Court upheld the objections and ruled against allowing the proceedings to continue.

Orders