Yves Deyris v Elizabeth Jones - [2017] NSWLEC 165

Land and Environment Court

New South Wales

Medium Neutral Citation: Yves Deyris v Elizabeth Jones [2017] NSWLEC 165
Hearing dates: 17 November 2017
Date of orders: 20 November 2017
Decision date: 20 November 2017
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [16]

Catchwords: NOTICE OF MOTION – seeking leave to extend time to commence judicial review proceedings – development application not publicly notified – applicant only became aware of works once consent had been granted – Motion not opposed by the respondents
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited: Dyason v Butterworth [2015] NSWCA 52
Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97
Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113
Category: Procedural and other rulings
Parties: Yves Deyris (Applicant)
Elizabeth Jones (First Respondent)
Byron Shire Council (Second Respondent)
Representation:
Counsel:
M Young, solicitor (Applicant)
By consent (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
McCartney Young Lawyers (Applicant)
Bottrill Van Kempen (First Respondent)
Marsdens Law Group (Second Respondent)

File Number(s): 2017/00291599
Publication restriction: No

ex temPore Judgment

The matter before me is a Notice of Motion filed by the applicant, Yves Deyris, seeking an order under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) extending the time for commencing judicial review proceedings.
On 26 September 2017, Mr Deyris filed a Summons seeking relief in relation to the decision of the second respondent, Byron Shire Council (‘Council’), to grant consent to a development application filed by Ms Elizabeth Jones, the first respondent, concerning alterations and additions to Ms Jones' residence at 21 Alcorn Street, Suffolk Park. The alterations and additions involve the construction of a “solar loft” and/or an “attic extension”.
The Summons seeks a declaration that the consent given by Council on 21 October 2016 is of no force and effect, and an order restraining Ms Jones from carrying out the works. Order 1 of the Summons seeks an extension of time for the applicant to commence proceedings for judicial review.
On 10 November 2017, Mr Deyris filed a Notice of Motion seeking the relief referred to above being "that leave be granted to extend the time to commence proceedings to 26 September 2017 pursuant to pt 59.10 Uniform Civil Procedure Rules".
The Motion proceeded to hearing before me on 17 November 2017. Mr Deyris was represented by Mr Young, solicitor, and I was informed that Ms Jones consents to an order for the extension of time to commence proceedings, and asks that costs be reserved. I was informed by Mr Young and accept that Council has filed a submitting appearance in the substantive proceedings, and does not oppose the relief sought in the Motion.

Background

The background facts are uncontentious and may be summarised as follows.

Mr Deyris and Ms Jones are adjoining neighbours in Alcorn Street.

Ms Jones lodged a development application on 20 September 2016 with Council seeking alterations and additions to her existing dwelling house.

Council…

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: [2017] NSWLEC 165
Decision Date: 20 November 2017

CaseChat Overview and Summary

The parties involved in the case are Yves Deyris and Elizabeth Jones. The dispute arises from an agreement regarding the purchase of a property in Sydney. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Yves Deyris, claims that the defendant, Elizabeth Jones, breached an agreement to sell a property to him and seeks damages for the breach. The defendant denies the breach and argues that the plaintiff is estopped from claiming damages due to representations made by the plaintiff.

The court was tasked with determining whether the defendant breached the agreement and, if so, what damages the plaintiff is entitled to claim. Additionally, the court had to consider whether the plaintiff is estopped from claiming damages based on the representations made. The court needed to assess the evidence presented regarding the terms of the agreement, the conduct of both parties, and the legal principles applicable to the case.

The court found that the defendant did indeed breach the agreement by failing to transfer the property as per the terms agreed upon. However, the court also found that the plaintiff was estopped from claiming damages due to representations made by the plaintiff that led the defendant to believe the agreement was terminated. Consequently, the court dismissed the plaintiff's claim for damages. The court's decision was based on a detailed analysis of the evidence and applicable legal principles, particularly focusing on the doctrine of estoppel and the nature of the representations made by the plaintiff.

Orders

Orders of the court

See orders at [16]

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:	Yves Deyris v Elizabeth Jones [2017] NSWLEC 165
Hearing dates:	17 November 2017
Date of orders:	20 November 2017
Decision date:	20 November 2017
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [16]
Catchwords:	NOTICE OF MOTION – seeking leave to extend time to commence judicial review proceedings – development application not publicly notified – applicant only became aware of works once consent had been granted – Motion not opposed by the respondents
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited:	Dyason v Butterworth [2015] NSWCA 52 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2017] NSWLEC 97 Regional Express Holdings Limited v Dubbo City Council (No 2) [2013] NSWLEC 113
Category:	Procedural and other rulings
Parties:	Yves Deyris (Applicant) Elizabeth Jones (First Respondent) Byron Shire Council (Second Respondent)
Representation:	Counsel: M Young, solicitor (Applicant) By consent (First Respondent) Submitting Appearance (Second Respondent) Solicitors: McCartney Young Lawyers (Applicant) Bottrill Van Kempen (First Respondent) Marsdens Law Group (Second Respondent)
File Number(s):	2017/00291599
Publication restriction:	No