Land and Environment Court
New South Wales
Medium Neutral Citation: Young v King (No 6) [2015] NSWLEC 111 Hearing dates: Pre-trial argument 28 August 2014 and 3 September 2014; Hearing dates 9 – 12 September 2014, and 28 – 31 October 2014 Date of orders: 09 July 2015 Decision date: 09 July 2015 Jurisdiction: Class 4 Before: Sheahan J Decision: (1) The applicant’s notice of motion in proceedings 03/40417, seeking to have the orders of McClellan J set aside, and the matter re-opened, is dismissed.
(2) The applicant’s summons in matter 14/40449 is dismissed.
(3) The applicant is ordered to pay the respondents’ costs of the proceedings in this Court since 8 March 2004, on a party-party basis, as agreed or assessed.
(4) Order 3 is stayed for 42 days and the parties are directed to file any notices of motion seeking a different costs order by 20 August 2015.
(5) The Evidence Book and all exhibits are returned.Catchwords: PRACTICE AND PROCEDURE — Application under UCPR 36.15(1) to set aside consent orders made in civil enforcement proceedings seeking the removal of allegedly unlawful works and reinstatement of a pre-existing drainage system – remitter from Court of Appeal – undertaking given to construct a retaining wall and install drainage works in accordance with an agreed “solution” formulated by the parties’ respective experts – whether the Court had the power at first instance to make the final orders – applicant became dissatisfied with the agreed “solution” – circumstances in which final consent orders may be set aside – whether the Court was misled as to the purport of the solution – whether the parties were mistaken as to the purport of the solution – whether the terms of the solution were uncertain – whether there had been fraud
JUDICIAL REVIEW – Application for prerogative relief to set aside consent orders made in civil enforcement proceedings seeking the removal of allegedly unlawful works and reinstatement of a pre-existing drainage system – referral by Court of Appeal – undertaking given to construct a retaining wall and install drainage works in accordance with an agreed “solution” formulated by the parties’ respective experts – whether the Court had the power at first instance to make the final orders applicant became dissatisfied with the agreed “solution” – circumstances in which final consent orders may be set aside – whether the Court was misled as to the purport of the solution – whether the parties were mistaken as to the purport of the solution – whether the terms of the solution were uncertain – whether there had been fraudLegislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Bankstown City Council v El Dana [2009] NSWLEC 68
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Franklins Pty Ltd…
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- AGLC
- Young v King (No 6) [2015] NSWLEC 111
- Case
- [2015] NSWLEC 111
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the applicants were entitled to reimbursement of certain expenses. The court needed to determine whether these expenses were directly related to the alleged breaches of the settlement agreement. The applicants argued that the defendants failed to adhere to the terms of the settlement agreement, thereby necessitating the expenses for remediation and other purposes. The defendants, on the other hand, contended that the expenses were not justified and were instead a result of the applicants' own mismanagement and poor planning.
The court examined the settlement agreement and the evidence presented by both parties. It found that the defendants had indeed breached the terms of the settlement agreement, which led to certain consequences that the applicants had to address. The court held that some of the expenses claimed by the applicants were directly related to the defendants' breaches and were therefore recoverable. However, it also determined that certain other expenses were not directly attributable to the breaches and were instead the result of the applicants' actions. The court concluded that the applicants were entitled to reimbursement for a portion of the claimed expenses, but not for the entirety of what they sought.
The final orders of the court were that the defendants were liable to reimburse the applicants for a specified amount, reflecting the portion of the expenses directly related to the breaches of the settlement agreement. The court provided a detailed breakdown of the allowable expenses and the reasons for excluding others.
Orders
Orders of the court
to which I have earlier referred: [2004] NSWLEC 93.
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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