Gosford City Council v Verde Terra Pty Ltd [2013] NSWLEC 20

Gosford City Council v Verde Terra Pty Ltd [2013] NSWLEC 20

Because the applicant had not complied with earlier directions, had served substantial evidence only on the eve of the hearing, and had delayed taking steps such as notices to produce despite Bingo's earlier denial of involvement, it was unfair to allow the applicant to rely on that evidence at the resumed hearing. However, to ensure the real issues were ventilated and in the interests of justice, the Court granted a final adjournment with directions for evidence, any amendment and joinder motion, submissions, and a further hearing of Bingo's removal motion. The applicant was ordered to pay the respondents' costs of the day because its defaults and late evidence necessitated the adjournment.

Jurisdiction
Australia
Judgment Date
19 February 2013
Procedural Posture
Class 4 Proceedings Seeking Declarations and Injunctions Concerning Alleged Breaches of Planning Law / Interlocutory Application by the Third Respondent for Removal as a Party; Adjournment and Directions Made
Outcome
Adjournment granted; directions made for filing evidence, any amendment and joinder motion, submissions and further hearing; applicant ordered to pay the respondents' costs of the day.
Legal Topics
['alleged Unauthorised Development or Breach of Development Consent' 'landfill and Golf Course Remodelling Works' 'joinder and Removal of Parties' 'interlocutory Directions' 'late Evidence' 'costs of Adjournment']
['environmental and Planning Law' 'civil Procedure'] ['alleged Unauthorised Development or Breach of Development Consent' 'landfill and Golf Course Remodelling Works' 'joinder and Removal of Parties' 'interlocutory Directions' 'late Evidence' 'costs of Adjournment']

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Procedural Posture

Class 4 Proceedings Seeking Declarations and Injunctions Concerning Alleged Breaches of Planning Law / Interlocutory Application by the Third Respondent for Removal as a Party; Adjournment and Directions Made

Legal Issues

  1. 1 ['Whether the third respondent should be removed as a party pursuant to Pt 6 r 6.29 of the Uniform Civil Procedure Rules 2005.' 'Whether the applicant should be permitted to rely on a lengthy affidavit served on the eve of the hearing in breach of earlier directions.' 'Whether the proceedings should be adjourned to allow the applicant a final opportunity to amend its claim, seek joinder of further parties and file evidence.' "Whether the applicant should pay the respondents' costs of the adjourned hearing."]

Ratio Decidendi

Because the applicant had not complied with earlier directions, had served substantial evidence only on the eve of the hearing, and had delayed taking steps such as notices to produce despite Bingo's earlier denial of involvement, it was unfair to allow the applicant to rely on that evidence at the resumed hearing. However, to ensure the real issues were ventilated and in the interests of justice, the Court granted a final adjournment with directions for evidence, any amendment and joinder motion, submissions, and a further hearing of Bingo's removal motion. The applicant was ordered to pay the respondents' costs of the day because its defaults and late evidence necessitated the adjournment.

Court Disposition

Adjournment granted; directions made for filing evidence, any amendment and joinder motion, submissions and further hearing; applicant ordered to pay the respondents' costs of the day.

Orders

  • ['The applicant must file and serve all evidence relating to the alleged breaches of the Environmental Planning and Assessment Act 1979 and Gosford Interim Development Order 122 by 19 March 2013.' 'The applicant must file and serve all evidence relating to environmental harm said to be the consequence of that...