Liverpool City Council v Philip Joseph Tabone [2021] NSWLEC 3

Liverpool City Council v Philip Joseph Tabone [2021] NSWLEC 3

The Notice of Motion was dismissed because the Council failed to identify a matter in question in the proceedings for which the proposed inspection would enable proper determination, and in any event failed to satisfy the precondition that sufficient relief was not available under s 169 of the Evidence Act 1995, including because no request for inspection had been made or unreasonably refused. The application was premature and doomed to failure, warranting indemnity costs.

Jurisdiction
Australia
Judgment Date
20 January 2021
Procedural Posture
Class 4 Proceedings / Notice of Motion for Inspection of Land Under UCPR 23.8
Outcome
Notice of Motion dismissed; Respondents awarded indemnity costs; proceedings otherwise remained listed for directions.
Legal Topics
['inspection of Land' 'uniform Civil Procedure Rules 2005 R 23.8' 'evidence Act 1995 S 169' 'indemnity Costs']
['practice and Procedure' 'environmental Planning and Assessment' 'evidence' 'costs'] ['inspection of Land' 'uniform Civil Procedure Rules 2005 R 23.8' 'evidence Act 1995 S 169' 'indemnity Costs']

Case Brief

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Procedural Posture

Class 4 Proceedings / Notice of Motion for Inspection of Land Under UCPR 23.8

Legal Issues

  1. 1 ['Whether the Court should order access to and inspection of 10 Wolstenholme Avenue, Greendale under UCPR 23.8.' 'Whether the Council identified a matter in question in the proceedings for which inspection would enable the proper determination.' 'Whether the Council satisfied the Court that sufficient relief was not available under s 169 of the Evidence Act 1995.' 'Whether the Respondents should receive costs of the Notice of Motion on an indemnity basis.']

Ratio Decidendi

The Notice of Motion was dismissed because the Council failed to identify a matter in question in the proceedings for which the proposed inspection would enable proper determination, and in any event failed to satisfy the precondition that sufficient relief was not available under s 169 of the Evidence Act 1995, including because no request for inspection had been made or unreasonably refused. The application was premature and doomed to failure, warranting indemnity costs.

Court Disposition

Notice of Motion dismissed; Respondents awarded indemnity costs; proceedings otherwise remained listed for directions.

Orders

  • ['The Notice of Motion filed on 23 December 2020 is dismissed.' 'The Council is ordered to pay the Respondents costs of the Notice of Motion on an indemnity basis in accordance with UCPR 42.5.' 'The exhibits are returned.' 'The proceedings otherwise remain listed for directions hearing on 12 March 2021 at 9.15am.']