Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 588

Street & 7 Ors v Luna Park Sydney Pty Limited & 3 Ors [2007] NSWSC 588

The lay noise evidence was inadmissible. For the Hesses' Trade Practices Act damages claim, the proper assessment was by reference to the price paid and the true value of the properties at purchase or another appropriate valuation date, not by reference to actual later noise levels or the value the properties would have had if representations had been true. For Ms Street's Crown Lands Act injunction claim, noise formed no part of the pleaded cause of action; if noise were invoked as a reason for discretionary relief, the proceedings would become proceedings with respect to noise barred by Luna Park Site Act 1990 s 19A, and the legislative context made sub-85 decibel noise irrelevant to...

Jurisdiction
Australia
Judgment Date
07 June 2007
Procedural Posture
Civil Proceedings Involving Claims for Damages for Misleading and Deceptive Conduct and Injunctive Relief Concerning Use of the Luna Park Site / Ex Tempore Evidence Ruling on Objections to Affidavit Evidence
Outcome
Evidence objected to rejected
Legal Topics
['admissibility of Lay Noise Evidence' 'misleading and Deceptive Conduct Damages' 'measure of Damages Under Trade Practices Act 1974 S 82' 'injunction to Restrain Alleged Contravention of Crown Lands Act 1989 S 114' 'luna Park Noise Control Provisions']
['evidence' 'trade Practices' 'crown Lands' 'equity'] ['admissibility of Lay Noise Evidence' 'misleading and Deceptive Conduct Damages' 'measure of Damages Under Trade Practices Act 1974 S 82' 'injunction to Restrain Alleged Contravention of Crown Lands Act 1989 S 114' 'luna Park Noise Control Provisions']

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Procedural Posture

Civil Proceedings Involving Claims for Damages for Misleading and Deceptive Conduct and Injunctive Relief Concerning Use of the Luna Park Site / Ex Tempore Evidence Ruling on Objections to Affidavit Evidence

Legal Issues

  1. 1 ["Whether lay evidence describing noise from rides, residents' subjective reactions to noise, and actions taken in response to noise was admissible in the Hesses' claim for damages under Trade Practices Act 1974 s 82 for alleged misleading and deceptive conduct." "Whether lay noise evidence was relevant to Joan Street's claim for an injunction based on Crown Lands Act 1989 s 114 and the Plan of Management." 'Whether reliance on noise as a discretionary reason for an injunction would make the proceedings proceedings with respect to the emission of noise barred by Luna Park Site Act 1990 s 19A.']

Ratio Decidendi

The lay noise evidence was inadmissible. For the Hesses' Trade Practices Act damages claim, the proper assessment was by reference to the price paid and the true value of the properties at purchase or another appropriate valuation date, not by reference to actual later noise levels or the value the properties would have had if representations had been true. For Ms Street's Crown Lands Act injunction claim, noise formed no part of the pleaded cause of action; if noise were invoked as a reason for discretionary relief, the proceedings would become proceedings with respect to noise barred by Luna Park Site Act 1990 s 19A, and the legislative context made sub-85 decibel noise irrelevant to...

Court Disposition

Evidence objected to rejected

Orders

  • ['Paragraphs 20 to 27 inclusive of the affidavit of Michael Hesse sworn 31 March 2005 rejected.' 'Subject to any particular parts which the plaintiffs might wish to press on other grounds, paragraphs 37 to 73 inclusive of the affidavit of Joan Paula Street sworn on 29 March 2005 rejected.']