Manning v Bathurst Regional Council [2012] NSWLEC 127

Manning v Bathurst Regional Council [2012] NSWLEC 127

Although the affidavit material did not adequately explain the applicant's delay or establish prejudice, the Court accepted that the hearing on 19 June 2012 could not proceed without incurable prejudice to the respondents and that the added demolition relief would likely necessitate further evidence. In those circumstances, and having regard to ss 56-60 of the Civil Procedure Act 2005, it was appropriate to grant leave to file the amended summons, vacate the hearing date, and order the applicant to pay the respondents' costs thrown away as agreed or assessed.

Jurisdiction
Australia
Judgment Date
01 June 2012
Procedural Posture
Class 4 Proceedings / Notices of Motion Seeking Leave to File an Amended Summons and to Vacate the Hearing Date
Outcome
Leave granted to file amended summons; hearing date vacated.
Legal Topics
['leave to Amend Summons' 'vacation of Hearing Date' 'development Consent Validity' 'procedural Fairness' 'uncertainty' 'costs Thrown Away']
['practice and Procedure' 'planning and Environment'] ['leave to Amend Summons' 'vacation of Hearing Date' 'development Consent Validity' 'procedural Fairness' 'uncertainty' 'costs Thrown Away']

Case Brief

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Procedural Posture

Class 4 Proceedings / Notices of Motion Seeking Leave to File an Amended Summons and to Vacate the Hearing Date

Legal Issues

  1. 1 ['Whether the applicant should be granted leave to file an amended summons adding a claim for demolition of the development constructed pursuant to the development consents.' 'Whether the hearing date of 19 June 2012 should be vacated because of delay, amendment of the summons, and consequent prejudice to the respondents.' "Whether the applicant should pay the respondents' costs thrown away occasioned by the amended summons and vacation of the hearing date."]

Ratio Decidendi

Although the affidavit material did not adequately explain the applicant's delay or establish prejudice, the Court accepted that the hearing on 19 June 2012 could not proceed without incurable prejudice to the respondents and that the added demolition relief would likely necessitate further evidence. In those circumstances, and having regard to ss 56-60 of the Civil Procedure Act 2005, it was appropriate to grant leave to file the amended summons, vacate the hearing date, and order the applicant to pay the respondents' costs thrown away as agreed or assessed.

Court Disposition

Leave granted to file amended summons; hearing date vacated.

Orders

  • ['Leave granted to the applicant to file the amended summons.' 'The hearing date of 19 June 2012 is vacated.' "The applicant is to pay the respondents' costs thrown away as agreed or assessed occasioned by the filing of the amended summons and the vacation of the hearing date."]