Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 61

Fenwick v Woodside Properties Pty Ltd [2016] NSWLEC 61

Leave was granted in part because the proposed pleading that alleged modification 04/0353.05 was affected by the alleged nullity of modifications 04/0353.01 and 04/0353.04 raised novel issues that were not plainly untenable under the General Steel test, and including that challenge would assist the just, quick and cheap resolution of the proceedings. However, the procedural unfairness allegations concerning notification of modification 04/0353.05 did not disclose a cause of action because the material before the public identified the earlier modifications and the Applicant did not articulate how the public was not properly informed.

Jurisdiction
Australia
Judgment Date
27 May 2016
Procedural Posture
Class 4 Proceedings / Notice of Motion Seeking Leave to Rely on Second Further Amended Summons and Amended Points of Claim
Outcome
Leave to amend granted in part; Applicant granted leave to rely on the second further amended summons and directed to file a redrafted amended points of claim.
Legal Topics
['amendment of Pleadings' 'reasonable Cause of Action' 'development Consent Modification' 'public Notification' 'procedural Fairness']
['planning and Environment Law' 'civil Procedure'] ['amendment of Pleadings' 'reasonable Cause of Action' 'development Consent Modification' 'public Notification' 'procedural Fairness']

Case Brief

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Procedural Posture

Class 4 Proceedings / Notice of Motion Seeking Leave to Rely on Second Further Amended Summons and Amended Points of Claim

Legal Issues

  1. 1 ['Whether the Applicant should be granted leave to amend the summons and points of claim to challenge modification 04/0353.05.' 'Whether the proposed amendments disclosed a reasonable cause of action or were so untenable that leave should be refused.' 'Whether alleged invalidity of modifications 04/0353.01 and 04/0353.04 could support a challenge to modification 04/0353.05.' 'Whether the pleaded procedural unfairness allegations concerning notification of modification 04/0353.05 disclosed a cause of action.']

Ratio Decidendi

Leave was granted in part because the proposed pleading that alleged modification 04/0353.05 was affected by the alleged nullity of modifications 04/0353.01 and 04/0353.04 raised novel issues that were not plainly untenable under the General Steel test, and including that challenge would assist the just, quick and cheap resolution of the proceedings. However, the procedural unfairness allegations concerning notification of modification 04/0353.05 did not disclose a cause of action because the material before the public identified the earlier modifications and the Applicant did not articulate how the public was not properly informed.

Court Disposition

Leave to amend granted in part; Applicant granted leave to rely on the second further amended summons and directed to file a redrafted amended points of claim.

Orders

  • ['The Applicant is granted leave to rely on the second further amended summons marked annexure "C" to the affidavit of Ms Hill sworn 23 May 2016.' 'The Applicant must file a redrafted amended points of claim no later than 4 pm Monday 30 May 2016.' 'Exhibits are to be returned.']