McCullagh v Autore [2014] NSWLEC 46

McCullagh v Autore [2014] NSWLEC 46

There was not a serious question to be tried because evidence demonstrated that the correct ground level was used for height measurement, and the applicants' construction of 'ground level (existing)' was untenable. Alternatively, even if there were a serious question, the balance of convenience weighed heavily against granting an injunction due to minimal, reversible harm and applicant delay.

Parties
First Applicant: Paul James McCullagh; Second Applicant: Nicolle Patricia McCullagh; First Respondent: Rosario Autore; Second Respondent: Jane Autore; Third Respondent: Peter Boyce
Jurisdiction
Australia
Judgment Date
11 April 2014
Procedural Posture
Interlocutory Application / Application for Interim Injunction
Outcome
Application for injunctive relief refused with costs.
Legal Topics
Interlocutory Injunctions, Ex Parte Procedure, Measurement of Boundary Wall Heights, Interpretation of State Environmental Planning Policy
Property Planning and Environment Interlocutory Injunctions Ex Parte Procedure Measurement of Boundary Wall Heights Interpretation of State Environmental Planning Policy

Case Brief

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Parties

Paul James McCullagh

First Applicant

Nicolle Patricia McCullagh

Second Applicant

Rosario Autore

First Respondent

Jane Autore

Second Respondent

Peter Boyce

Third Respondent

Procedural Posture

Interlocutory Application / Application for Interim Injunction

Legal Issues

  1. 1 Whether there is a serious question to be tried regarding the height measurement of a boundary wall under State Environmental Planning Policy
  2. 2 Whether the balance of convenience favours granting interim injunctive relief
  3. 3 Adequacy of ex parte basis for the application

Ratio Decidendi

There was not a serious question to be tried because evidence demonstrated that the correct ground level was used for height measurement, and the applicants' construction of 'ground level (existing)' was untenable. Alternatively, even if there were a serious question, the balance of convenience weighed heavily against granting an injunction due to minimal, reversible harm and applicant delay.

Court Disposition

Application for injunctive relief refused with costs.

Orders

  • Applicants' notice of motion seeking interim injunctive relief dismissed.
  • Applicants to pay respondents' costs.