Penrith City Council v Dincel Construction System Pty Limited (No 5) [2021] NSWLEC 22

Penrith City Council v Dincel Construction System Pty Limited (No 5) [2021] NSWLEC 22

There was no inadvertent error, clerical mistake or misapprehension in the substantive orders; the framing of orders was deliberate, and no grounds exist to vary or correct the substantive orders under rr 36.16 or 36.17 UCPR. A stay of the specific injunctive orders pending appeal is unwarranted due to sufficient time already allowed for compliance, and the balance of convenience favours the public interest in enforcement. Costs should remain against both Dincel and Gaonor given their joint conduct.

Parties
Applicant on the Motion: Dincel Construction System Pty Limited; Applicant on the Motion: Gaonor Pty Limited; Respondent on the Motion: Penrith City Council
Jurisdiction
Australia
Judgment Date
15 March 2021
Procedural Posture
Notice of Motion (in Class 4 Civil Enforcement Proceedings) / Post Judgment Motion to Vary/correct/amend Orders and for Stay and Costs Orders
Outcome
Notice of Motion dismissed
Legal Topics
Slip Rule, Variation of Orders, Stay of Orders Pending Appeal, Costs—general Rule That Costs Follow the Event, Declaratory and Injunctive Relief, Enforcement Proceedings, Environmental Breaches—unauthorised Development
Civil Procedure Environmental Law Slip Rule Variation of Orders Stay of Orders Pending Appeal Costs—general Rule That Costs Follow the Event Declaratory and Injunctive Relief Enforcement Proceedings +1 more

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Parties

Dincel Construction System Pty Limited

Applicant on the Motion

Gaonor Pty Limited

Applicant on the Motion

Penrith City Council

Respondent on the Motion

Procedural Posture

Notice of Motion (in Class 4 Civil Enforcement Proceedings) / Post Judgment Motion to Vary/correct/amend Orders and for Stay and Costs Orders

Legal Issues

  1. 1 Whether orders made in substantive judgment should be varied or corrected under the slip rule or Rule 36.16 Uniform Civil Procedure Rules 2005 (NSW)
  2. 2 Whether a stay should be granted on specific injunctive orders pending appeal
  3. 3 Whether the costs order should be varied to exclude Gaonor as liable for costs

Ratio Decidendi

There was no inadvertent error, clerical mistake or misapprehension in the substantive orders; the framing of orders was deliberate, and no grounds exist to vary or correct the substantive orders under rr 36.16 or 36.17 UCPR. A stay of the specific injunctive orders pending appeal is unwarranted due to sufficient time already allowed for compliance, and the balance of convenience favours the public interest in enforcement. Costs should remain against both Dincel and Gaonor given their joint conduct.

Court Disposition

Notice of Motion dismissed

Orders

  • The Notice of Motion filed by Dincel Construction System Pty Limited and Gaonor Pty Limited on 29 January 2021 and amended on 4 March 2021 is dismissed.
  • Dincel Construction System Pty Limited and Gaonor Pty Limited are to pay Penrith City Council's costs.