Young v King (No 4) [2012] NSWLEC 236

Young v King (No 4) [2012] NSWLEC 236

The respondents' motion succeeded because the applicant should have sought prerogative-type relief in the Supreme Court rather than pursuing a post-facto motion in the Land and Environment Court to set aside final consent orders. In any event, the applicant's case as opened did not make out a case against the respondents: the allegations of fraud, collusion and conspiracy were unsupported by evidence, were directed substantially at others who were not before the Court, and amounted only to imputations of knowledge or motive and submissions from the bar table. The contention that the respondents' dismissal motion was an abuse of process because of delay had no merit.

Jurisdiction
Australia
Judgment Date
19 October 2012
Procedural Posture
Class 4 Proceedings / Respondents' Notice of Motion for Summary Dismissal of the Applicant's Notice of Motion to Set Aside 2004 Consent Orders
Outcome
Respondents' Notice of Motion upheld; applicant's Notice of Motion dismissed; costs reserved.
Legal Topics
['summary Dismissal' 'jurisdiction to Set Aside Final Orders' 'consent Orders' 'undertakings to the Court' 'allegations of Fraud, Collusion and Conspiracy' 'costs Reserved']
['practice and Procedure' 'land and Environment' 'civil Procedure'] ['summary Dismissal' 'jurisdiction to Set Aside Final Orders' 'consent Orders' 'undertakings to the Court' 'allegations of Fraud, Collusion and Conspiracy' 'costs Reserved']

Case Brief

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Procedural Posture

Class 4 Proceedings / Respondents' Notice of Motion for Summary Dismissal of the Applicant's Notice of Motion to Set Aside 2004 Consent Orders

Legal Issues

  1. 1 ["Whether the Land and Environment Court had jurisdiction to hear the applicant's Notice of Motion to set aside the 2004 consent orders." 'Whether the applicant made out a case against the respondents sufficient to avoid summary dismissal.' "Whether the respondents' summary dismissal application was an abuse of process because it was brought too late." 'Whether costs should be determined immediately or reserved for later submissions.']

Ratio Decidendi

The respondents' motion succeeded because the applicant should have sought prerogative-type relief in the Supreme Court rather than pursuing a post-facto motion in the Land and Environment Court to set aside final consent orders. In any event, the applicant's case as opened did not make out a case against the respondents: the allegations of fraud, collusion and conspiracy were unsupported by evidence, were directed substantially at others who were not before the Court, and amounted only to imputations of knowledge or motive and submissions from the bar table. The contention that the respondents' dismissal motion was an abuse of process because of delay had no merit.

Court Disposition

Respondents' Notice of Motion upheld; applicant's Notice of Motion dismissed; costs reserved.

Orders

  • ["The respondent's Notice of Motion filed on 18 September 2012 is upheld." "The applicant's Notice of Motion originally filed on 23 May 2008, as finally formulated on 27 March 2012, is dismissed." "Costs are formally reserved, and the parties are directed to file any Notices of Motion seeking costs orders within 28...