Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Wheeldon v Woollahra Municipal Council [2025] NSWLEC 55 Hearing dates: 24 and 28 April 2025 Date of orders: 07 July 2025 Decision date: 03 June 2025 Jurisdiction: Class 1 Before: Beasley J Decision: (1) The Amended Notice of Motion filed 17 March 2025 (Amended Joinder Motion) is dismissed.
(2) Leave refused to amend the motion filed 7 April 2025 (Stay/Set Aside Motion).
(3) Stay/Set Aside Notice of Motion filed 7 April 2025 is dismissed.
(4) Costs in relation to both motions are reserved. If the parties reach an agreement in relation to what costs orders I should make, they should notify my Associate within 7 days of the date of this judgment.
(5) In the absence of agreement between the parties in relation to costs, the parties have leave to file and serve written submissions (limited to five pages) in relation to costs orders they seek by 5pm Tuesday 17 June 2025.
(6) If either party wishes to supplement any written submissions in relation to costs with oral submissions they are to send to my Associate a note indicating why an oral hearing is sought, for my consideration.
See further orders at [108].
Catchwords: CIVIL PROCEDURE — Notice of Motion — Application for joinder — Seeking to join after judgment has been delivered — Jurisdictional error — Restrictive covenants — Application to set aside judgment of Commissioner — Application for a stay
Legislation Cited: Civil Procedure Act 1995 (NSW) ss 13, 58, 67
Environmental Planning and Assessment Act 1979 (NSW) ss 3.16, 8.15, s 75W (repealed)
Land and Environment Court Act 1979 (NSW) ss 34, 34AA, 56A
Supreme Court Act (NSW) s 69
Uniform Civil Procedure Rules 2005 r 6.24, 36.15, 36.16
Woollahra Local Environmental Plan 2014 cl 1.9A
Cases Cited: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112
Coshott & Anor v Ludwig (1997) 8 BPR 15,519
Cumerlong Holdings v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27
Dranichnikov v Minister for Immigrations and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
John Alexander’s Clubs Pty Ltd & Anor v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club & Ors (2010) 241 CLR 1; [2010] HCA 19
JPMorgan Chase Bank, National Association v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31
Mahogany Ridge Developments Pty Ltd v Port Stephens Council (2004) 135 LGERA 60; [2004] NSWLEC 555
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Morrison Design Partnership Pty Ltd v North Sydney Council and Director General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Texts Cited:
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- Case
- [2025] NSWLEC 55
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether Mr Wheeldon had the right to amend his original motion to join additional parties and whether the court should grant a stay or set aside the Council's decisions. The court had to examine the procedural rules governing motions for amendment and the circumstances under which a stay or set aside could be warranted. Additionally, the court needed to address the appropriate allocation of costs between the parties.
In dismissing the Amended Joinder Motion and the Stay/Set Aside Motion, the court held that Mr Wheeldon had not demonstrated sufficient grounds for the amendments or the requested relief. The court found that the plaintiff's attempts to join additional parties were not justified and that the relief sought did not meet the necessary legal standards. The court also determined that the plaintiff had not established a compelling reason for the court to stay or set aside the Council's decisions. As such, the court refused leave to amend the motion and dismissed the stay or set aside motion. The court further reserved costs, allowing the parties to propose a costs agreement or submit written and potentially oral arguments on the issue.
Orders
Orders of the court
(1) The Amended Notice of Motion filed 17 March 2025 (Amended Joinder Motion) is dismissed.
(2) Leave refused to amend the motion filed 7 April 2025 (Stay/Set Aside Motion).
(3) Stay/Set Aside Notice of Motion filed 7 April 2025 is dismissed.
(4) Costs in relation to both motions are reserved. If the parties reach an agreement in relation to what costs orders I should make, they should notify my Associate within 7 days of the date of this judgment.
(5) In the absence of agreement between the parties in relation to costs, the parties have leave to file and serve written submissions (limited to five pages) in relation to costs orders they seek by 5pm Tuesday 17 June 2025.
(6) If either party wishes to supplement any written submissions in relation to costs with oral submissions they are to send to my Associate a note indicating why an oral hearing is sought, for my consideration.
See further orders at [108].
Background
Background to the litigation
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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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