Golden Paradise Corporation v Kogarah Municipal Council & Another (No. 2) [2003] NSWLEC 288

Golden Paradise Corporation v Kogarah Municipal Council & Another (No. 2) [2003] NSWLEC 288

The challenged orders did not reflect the Court's true intention. The hearing had focused on the validity of the transfer of lot 2, with no evidence or argument establishing the applicant's alleged right of way or a public dedication. The Court intended only to require reinstatement of lot 2 by removal of the wall erected after the invalid transfer, not to order removal of any construction work or impose a continuing restraint on construction. Those errors were accidental errors capable of correction under Pt 10 r 7, not a reconsideration of the merits or an exercise of a new discretion.

Jurisdiction
Australia
Judgment Date
27 November 2003
Procedural Posture
Class 4 Proceedings; Notice of Motion Under Pt 10 R 7 of the Land and Environment Court Rules 1996 to Revoke or Vary Orders / Judgment on Notice of Motion After Earlier Judgment Delivered on 29 August 2003
Outcome
Notice of motion allowed in part; order 7 varied, order 8 revoked, and no order as to costs.
Legal Topics
['slip Rule' 'correction of Orders' 'accidental Error or Omission' 'development Consent and Access Over Land']
['practice and Procedure' 'land and Environment Court Procedure'] ['slip Rule' 'correction of Orders' 'accidental Error or Omission' 'development Consent and Access Over Land']

Case Brief

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Procedural Posture

Class 4 Proceedings; Notice of Motion Under Pt 10 R 7 of the Land and Environment Court Rules 1996 to Revoke or Vary Orders / Judgment on Notice of Motion After Earlier Judgment Delivered on 29 August 2003

Legal Issues

  1. 1 ['Whether order 7 and order 8 made on 29 August 2003 resulted from a clerical mistake or accidental error within Pt 10 r 7 of the Land and Environment Court Rules 1996.' "Whether the challenged orders failed to reflect the Court's true intention by referring to any construction work on lot 2 rather than the wall constructed across lot 2." "Whether order 8 impermissibly constrained construction work or interfered with the registered proprietor's rights over lot 2."]

Ratio Decidendi

The challenged orders did not reflect the Court's true intention. The hearing had focused on the validity of the transfer of lot 2, with no evidence or argument establishing the applicant's alleged right of way or a public dedication. The Court intended only to require reinstatement of lot 2 by removal of the wall erected after the invalid transfer, not to order removal of any construction work or impose a continuing restraint on construction. Those errors were accidental errors capable of correction under Pt 10 r 7, not a reconsideration of the merits or an exercise of a new discretion.

Court Disposition

Notice of motion allowed in part; order 7 varied, order 8 revoked, and no order as to costs.

Orders

  • ['The words "any construction work of any kind" in Order 7 made in proceedings 40536 of 2002 on 29 August 2003 be deleted and substituted by the words "the wall constructed across lot 2 in approximately August 2002".' 'Order 8 made in proceedings 40536 of 2002 on 29 August 2003 be revoked.' 'No order be made for the...