Bobolas v Waverley Council [2015] NSWCA 216

Bobolas v Waverley Council [2015] NSWCA 216

The applicants did not demonstrate any ground for setting aside or varying Basten JA's orders. Rule 36.17 was not engaged because no clerical error or accidental slip was identified. Refusal of a stay was inconsistent with granting protective relief under UCPR r 12.11, s 200 had been addressed by Basten JA, other matters were either insufficient, not raised before Basten JA, or matters for the appeal, and the evidence established that the Council had given notice. There was also no error in directing that the costs of the earlier motion be costs in the appeal.

Jurisdiction
Australia
Judgment Date
20 July 2015
Procedural Posture
Application to Set Aside Orders / Notice of Motion in the Court of Appeal Seeking to Set Aside Part of Orders Made by Basten JA on 13 July 2015 in an Appeal From the Land and Environment Court
Outcome
Notice of motion filed 17 July 2015 dismissed with costs.
Legal Topics
['setting Aside or Varying Orders' 'stay of Orders' 'correction of Judgments or Orders' 'protection of Property' 'council Notices and Entry Powers' 'costs']
['civil Procedure' 'local Government'] ['setting Aside or Varying Orders' 'stay of Orders' 'correction of Judgments or Orders' 'protection of Property' 'council Notices and Entry Powers' 'costs']

Case Brief

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Procedural Posture

Application to Set Aside Orders / Notice of Motion in the Court of Appeal Seeking to Set Aside Part of Orders Made by Basten JA on 13 July 2015 in an Appeal From the Land and Environment Court

Legal Issues

  1. 1 ['Whether the orders made by Basten JA should be set aside or varied under UCPR rr 36.15 or 36.16(3A).' 'Whether any clerical mistake, accidental slip or omission existed so as to engage UCPR r 36.17.' "Whether Basten JA failed to deal with matters raised in the applicants' earlier notice of motion, including UCPR r 12.11 and s 200 of the Local Government Act 1993 (NSW)." "Whether alleged issues concerning notice, removal of waste, the back verandah, heritage bricks, and provisions of the Local Government Act justified revisiting Basten JA's orders." "Whether there was error in Basten JA's costs direction."]

Ratio Decidendi

The applicants did not demonstrate any ground for setting aside or varying Basten JA's orders. Rule 36.17 was not engaged because no clerical error or accidental slip was identified. Refusal of a stay was inconsistent with granting protective relief under UCPR r 12.11, s 200 had been addressed by Basten JA, other matters were either insufficient, not raised before Basten JA, or matters for the appeal, and the evidence established that the Council had given notice. There was also no error in directing that the costs of the earlier motion be costs in the appeal.

Court Disposition

Notice of motion filed 17 July 2015 dismissed with costs.

Orders

  • ['The notice of motion filed on 17 July 2015 is dismissed with costs.']