Northern Beaches Council v Built Development (Manly) Pty Ltd [2018] NSWCA 193

Northern Beaches Council v Built Development (Manly) Pty Ltd [2018] NSWCA 193

The primary judge erred in striking out the impugned paragraphs because the plaintiffs' case alleged that the Council expressly or impliedly represented that the Development Deed was valid and enforceable, not that it represented anything about the particular grounds of invalidity later pleaded by the Council. The contextual matters pleaded by the Council were capable of being relevant to whether the alleged representations were conveyed, whether the plaintiffs relied on them, and whether there was a common assumption for estoppel by convention. The plaintiffs' amended commercial list statement therefore permitted the Council's response.

Jurisdiction
Australia
Judgment Date
03 September 2018
Procedural Posture
Application for Leave to Appeal and Appeal From an Interlocutory Ruling Striking Out Paragraphs of a Commercial List Response / Court of Appeal; Leave to Appeal Granted and Appeal Allowed
Outcome
Leave to appeal granted; appeal allowed; strike out order and costs order set aside; amended notice of motion dismissed.
Legal Topics
['interlocutory Appeal' 'strike Out' 'commercial List Response' 'practice Note' 'misleading and Deceptive Conduct' 'australian Consumer Law S 18' 'estoppel by Representation' 'estoppel by Convention' 'validity and Enforceability of Development Deed']
['civil Procedure' 'commercial Law' 'consumer Law' 'estoppel' 'local Government'] ['interlocutory Appeal' 'strike Out' 'commercial List Response' 'practice Note' 'misleading and Deceptive Conduct' 'australian Consumer Law S 18' 'estoppel by Representation' 'estoppel by Convention' 'validity and Enforceability of Development Deed']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Leave to Appeal and Appeal From an Interlocutory Ruling Striking Out Paragraphs of a Commercial List Response / Court of Appeal; Leave to Appeal Granted and Appeal Allowed

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from an interlocutory procedural ruling striking out parts of the Council's Commercial List Response." "Whether the primary judge failed to give proper regard to the Commercial List Practice Note's general rule that strike out applications and applications for summary judgment will not be entertained." "Whether the primary judge misunderstood the scope of the plaintiffs' pleaded case concerning representations that the Development Deed was valid and enforceable." 'Whether contextual matters pleaded by the Council were relevant to whether representations were conveyed, whether the plaintiffs relied on them, and whether there was a common assumption for estoppel by convention.']

Ratio Decidendi

The primary judge erred in striking out the impugned paragraphs because the plaintiffs' case alleged that the Council expressly or impliedly represented that the Development Deed was valid and enforceable, not that it represented anything about the particular grounds of invalidity later pleaded by the Council. The contextual matters pleaded by the Council were capable of being relevant to whether the alleged representations were conveyed, whether the plaintiffs relied on them, and whether there was a common assumption for estoppel by convention. The plaintiffs' amended commercial list statement therefore permitted the Council's response.

Court Disposition

Leave to appeal granted; appeal allowed; strike out order and costs order set aside; amended notice of motion dismissed.

Orders

  • ['Grant the applicant leave to appeal from the judgment in the Equity Division given on 25 May 2018.' 'Direct that the applicant file within seven days a notice of appeal in the form of the draft notice of appeal contained in the white folder filed on 20 August 2018.' 'Allow the appeal and set aside order (1) made...