Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Sertari Pty Limited v Quakers Hill SPV Pty Limited [2012] NSWCA 292
• Hearing dates: 10 September 2012
• Decision date: 10 September 2012
• Before: Basten JA

Decision

(1) Leave granted to first respondent to read the affidavit of Andrew Peter Gough of 10.09.12 and direct that it be filed in the Registry today.

(2) Leave granted to first respondent to read the affidavit of Joseph Wehbe of 08.09.12 and direct that it be filed in the Registry today.

(3) Stand matter over to 9.30am, Monday 17.09.12 to be relisted before me on that date.

(4) The Land and Environment Court be restrained from dealing with the proceedings pending resolution of the proceedings in this Court.

(5) Reserve the costs of the application today.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: PROCEDURE - civil - judgments and orders - stay pending appeal or judicial review - applicant not party to proceedings below - whether danger that proceedings could be disposed of without involvement of applicant - whether stay appropriate - Land and Environment Court Act 1979 (NSW), s 34; PROCEDURE - Land and Environment Court - review of decision of Registrar - whether power of Judge of Land and Environment Court to review decision of Registrar of that Court - Lowy v Land and Environment Court [2002] NSWCA 353; 123 LGERA 179 discussed
• Legislation Cited: Land and Environment Court Act 1979 (NSW), ss 34, 39A; Uniform Civil Procedure Rules 2005 (NSW), r 49.19
• Cases Cited: Lowy v Land and Environment Court [2002] NSWCA 353; 123 LGERA 179; Quakers Hills SPV Pty Ltd v Blacktown City Council [2012] NSW LEC 200
• Category: Procedural and other rulings
• Parties: Sertari Pty Ltd (Applicant); Quakers Hill SPV Pty Ltd (First Respondent); Blacktown City Council (Second Respondent); Land and Environment Court of NSW (Third Respondent)
• Representation: Counsel: Mr P Tomasetti SC (Applicant); Mr N Eastman (First Respondent); Solicitors: Stephen Wawn & Associates (Applicant); Storey & Gough (First Respondent)
• File Number(s): CA 2012/274534

Decision under appeal

• Jurisdiction: 9106
• Date of Decision: 2012-08-20 00:00:00
• Before: Acting Registrar Walton
• File Number(s): LEC 2012/10293

Judgment

1 BASTEN JA: This matter has come on before the Court with some degree of urgency on a motion seeking a stay of proceedings in the Land and Environment Court.

2 I have had the opportunity before coming on the bench to read the white folder which was filed late last week and which includes two judgments in the Land and Environment Court and some other material, including a summons and a notice of motion in this Court and a summary of argument by the applicant.

3 The respondent has sought to read two affidavits in the proceedings this morning. One is an affidavit of Mr Andrew Gough of 10 September 2012 which sets out some matters to which I will shortly advert. I grant leave to the respondent to read that affidavit and direct that it be filed in the registry in the course of today.

4 The respondent further seeks to rely upon an affidavit of Joseph Wehbe dated 8 September 2012. I similarly grant leave to the respondent to read that affidavit and direct that it be filed in the registry later today.

5 The matter involves a dispute in the Land and Environment Court with respect to the use of a right of carriageway which passes over a car park next to a hotel on land owned by the applicant. The respondent is the owner of a site on which a development is proposed and the only vehicular access to the site is by way of the right of carriageway over the applicant's land.

6 There has been consent granted in the Land and Environment Court to the development but a condition of the consent was that the respondents prepare a pedestrian management plan to be approved by the Council. There is a dispute at the moment as to the adequacy of the pedestrian management plan as between the applicant and the respondent.

7 In the Land and Environment Court, the matter was the subject of conciliation proceedings by a Commissioner, pursuant to s 34 of the Land and Environment Court Act 1979 (NSW). The basis upon which the stay was sought was that the applicant, who is not a party to the proceedings in the Land and Environment Court, understood that there was an agreement reached in the course of the conciliation conference as to the terms upon which the matter could be resolved. One consequence of that agreement would be that a commissioner dealing with the matter at a conciliation conference would be required to dispose of the proceedings in accordance with the terms of the agreement, pursuant to s 34(3) of the Land and Environment Court Act.

8 The affidavit of Mr Gough, read this morning, suggests that the threat of such a mandatory order may have receded if not dissipated. He annexes a copy of a letter from the Council stating that it will not enter a s 34 agreement while the proceedings in this Court remain on foot. I draw the inference from that that no agreement has yet been signed but that prior to that indication, it had been Council's intention to execute such an agreement.

9 It is convenient to refer at this stage to the other evidence which was filed this morning. It is that of Mr Wehbe whose affidavit explains the costs being incurred by his company, the first respondent, as a result of the delays which have occurred in allowing the development to go ahead.

10 The matter in dispute presently, for the purposes of the proceedings in this Court, involves an application by the applicant to be joined as a party to the proceedings in the Land and Environment Court, pursuant to s 39A of the Land and Environment Court Act. That application was refused by the acting Registrar on 20 August 2012 in a reserved decision in which the Registrar undertook a thorough analysis of the circumstances in what might have been considered a relatively straightforward application.

11 The applicant sought to review that decision before a judge of the Court. On 31 August 2012, Sheahan J handed down judgment: Quakers Hills SPV Pty Ltd v Blacktown City Council [2012] NSWLEC 200. His Honour declined to review the judgment of the Registrar on the basis that that was a matter to be undertaken in this Court. He did so primarily on a reading of a judgment of this Court in another matter, Lowy v Land and Environment Court [2002] NSWCA 353; 123 LGERA 179. In Lowy's case, the facts were similar in the sense that an objector had sought to be joined to proceedings in the Land and Environment Court, primarily it would appear, so that, if the proceedings resolved themselves adversely to the applicant's interest in that matter, he would have a right of appeal. It is true that this Court accepted that any review of the decision not to join Mr Lowy required review in, or an appeal to, this Court. However, the judgment being challenged in that case was a judgment of Cowdroy J, not of a registrar.

12 In the present matter, Sheahan J was persuaded that he did not have power to review a decision of the Registrar because an applicant for joinder was not a party to the proceedings in the Court. I have not heard argument on the correctness of that submission but, on its face, it is not self-evidently correct. The summons originally filed in this Court sought review of the decision of the Registrar. An amended summons which is now before the Court, indicates that it also seeks review of the judgment of Sheahan J.

13 In my view, and it is a tentative view because I have not heard argument on the merits one way or the other, there is much to be said for the conclusion that there was power in the Judge of the Land and Environment Court to undertake a review of the Registrar's decision pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW). For the purpose of the application for joinder, the applicant was a party to the proceeding in that sense and therefore had a right of review.

14 If this Court were to form the view that that was the correct outcome, it seems quite unlikely that it would review the judgment of the Registrar, but the matter would go back to the Land and Environment Court, if the matter were not resolved by agreement, for a judge of that Court to undertake the review sought in this Court. That is all a most unsatisfactory state of affairs insofar as the views tentatively expressed are correct.

15 I therefore propose to stand the matter over for seven days to allow the respondent and the applicant to consider whether there can be a consensual resolution of the dispute in this Court.

16 I accept that there have been costs and continue to be costs incurred by the developer as a result of the delay in having the pedestrian management plan resolved and I understand why that party, if not both parties, would wish to have this resolved as expeditiously as possible.

17 I commend to them the proposition that it may be appropriate for this Court, if it can, to make consent orders remitting the matter to a judge of the Land and Environment Court.

18 So far as the application for the stay this morning is concerned, there is uncertainty in my mind as to the true position of the Council. I am told that the respondent has accepted that there may need to be a disputed hearing before the Land and Environment Court, though not I think that the hearing will involve the applicant as a party, although it may have rights to participate otherwise than as a party.

19 In those circumstances, I think the safer course is to make an order in the nature of a stay and I propose to do that.

20 I also propose to reserve the costs of the day so that they can be matters for consideration by the parties.

21 Accordingly, I make the following orders:

(1) Leave granted to first respondent to read the affidavit of Andrew Peter Gough of 10.09.12 and direct that it be filed in the Registry today.

(2) Leave granted to first respondent to read the affidavit of Joseph Wehbe of 08.09.12 and direct that it be filed in the Registry today.

(3) Stand matter over to 9.30am, Monday 17.09.12 to be relisted before me on that date.

(4) The Land and Environment Court be restrained from dealing with the proceedings pending resolution of the proceedings in this Court.

(5) Reserve the costs of the application today.

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Decision last updated: 17 September 2012