Waverley Council v Refkin Pty Ltd - [2000] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION: Waverley Council v Refkin Pty Ltd [2000] NSWLEC 124

PARTIES:
APPLICANT:
Waverley Council
RESPONDENT:
Refkin Pty Ltd

FILE NUMBER(S): 40042A of 2000

CORAM: Talbot J

KEY ISSUES: Costs :- Notice of Discontinuance filed - indemnity basis

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 104A
Land and Environment Court Act 1979 s 71
Land and Environment Court Rules 1996 Pt 16
Supreme Court Rules 1970 Pt 52A r 37

CASES CITED: Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354;
Fountain Selected Meat (Sales) Pty Ltd v International Produce Merchants Pty Ltd and Ors (1988) 81 ALR 397;
Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning and Anor [2000] NSWLEC 20

DATES OF HEARING: 16/06/2000

DATE OF JUDGMENT:
06/19/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr G B Newport (Barrister)
SOLICITORS:
McMahon and Associates
RESPONDENT:
Mr V R Gray (Barrister)
SOLICITORS:
Gye Associates

JUDGMENT:

IN THE LAND AND Matter No. 40042A of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 19 June, 2000

Waverley Council

Refkin Pty Ltd

Respondent

REASONS FOR JUDGMENT

1. The applicant council commenced these proceedings claiming relief in the form of a declaration that a condition of development consent issued in respect of premises 120-128 Macpherson Street, Bronte is valid and an order that the respondent cause the cessation of the use and occupation of a lot in a strata plan registered in respect of those premises until the condition of consent is complied with.

2. A Notice of Discontinuance has been filed.

3. The class 4 proceedings were commenced on the same day as Young J delivered a judgment in the equity division of the Supreme Court where the council had sued for a Mareva injunction to prevent the respondent, a builder, selling the last unit in the development that could meet the condition of the consent.

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.

5. The Court has been informed that the condition was imposed on the development consent when granted by the Court on appeal in class 1 proceedings without objection by the applicant for development consent.

6. The development consent was granted in favour of an individual who is not a party to these proceedings and was not a party to the proceedings in the Supreme Court. The respondent applied for and was granted a building approval which did not reiterate the abovementioned condition.

7. The condition was directed to a unit designated for residential use.

8. The lot in respect of which the council claimed an order in these proceedings is now a lot in…

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] NSWLEC 124
Decision Date: 06/19/2000

CaseChat Overview and Summary

Waverley Council brought proceedings against Refkin Pty Ltd before the Land and Environment Court of New South Wales seeking a declaration that a condition of development consent was valid and an order for the cessation of the use and occupation of a lot in a strata plan. The condition of the development consent, which was not objected to when granted, required the transfer of a 1 x 1 bedroom unit to the council for affordable housing purposes. The council had also sought a Mareva injunction in the Supreme Court to prevent Refkin from selling the last unit that could meet the condition, but the Supreme Court found it had no jurisdiction. The council subsequently discontinued its Supreme Court proceedings and filed a Notice of Discontinuance in the Land and Environment Court. Refkin sought indemnity costs, arguing that the council had no real prospect of success and had commenced proceedings for an ulterior motive or due to a disregard of the law.

The court considered whether the council's proceedings had been maintained without a reasonable prospect of success and whether they were pursued for some ulterior motive or due to a disregard of the known facts or established law. The court found that the council had no real prospect of success in its proceedings as the unit in question had already been sold. The court also found that the proceedings were not maintained for any ulterior purpose or tactical advantage. The court concluded that the council had acted unreasonably in commencing the proceedings, and ordered the council to pay Refkin's costs on an indemnity basis. The court found that the circumstances warranted the award of indemnity costs as the council had no real prospect of success and had commenced proceedings without a reasonable basis.

Orders