Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No. 2) [2019] NSWLEC 136

Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd (No. 2) [2019] NSWLEC 136

Rule 59.10 UCPR does not apply to claims questioning the validity of the development consent because a statutory limitation period under s 4.59 of the EP&A Act applies; accordingly, leave was not required for those claims. In relation to judicial review of CC1, there is no statutory bar and r 59.10 applies. Despite a significant delay, the complexity of fact-finding, the nature of the proceedings, and the continuing involvement of the respondents meant leave should be granted to extend time for the CC1 judicial review.

Parties
Applicant: Omaya Investments Pty Ltd; First Respondent: Dean Street Holdings Pty Ltd; Second Respondent: TQM Design and Construct Pty Ltd; Third Respondent: Patrick John Elias; Fourth Respondent: Maurice Freixas; Fifth Respondent: Burwood Council
Jurisdiction
Australia
Judgment Date
25 September 2019
Procedural Posture
Judicial Review / Interlocutory Application (notice of Motion for Extension of Time and Leave to Amend Pleadings)
Outcome
Notice of motion for leave to commence proceedings regarding development consent dismissed as leave not required; leave granted to commence proceedings out of time regarding CC1; costs reserved.
Legal Topics
Extension of Time, Judicial Review, Development Consent, Practice and Procedure, Discretionary Powers
Environment and Planning Law Civil Procedure Extension of Time Judicial Review Development Consent Practice and Procedure Discretionary Powers

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Parties

Omaya Investments Pty Ltd

Applicant

Dean Street Holdings Pty Ltd

First Respondent

TQM Design and Construct Pty Ltd

Second Respondent

Patrick John Elias

Third Respondent

Maurice Freixas

Fourth Respondent

Burwood Council

Fifth Respondent

Procedural Posture

Judicial Review / Interlocutory Application (notice of Motion for Extension of Time and Leave to Amend Pleadings)

Legal Issues

  1. 1 Whether leave is required to commence proceedings for judicial review regarding development consent and construction certificate outside statutory time limits
  2. 2 Whether extension of time should be granted to apply for judicial review of CC1
  3. 3 Whether r 59.10 of the Uniform Civil Procedure Rules 2005 applies to the claims

Ratio Decidendi

Rule 59.10 UCPR does not apply to claims questioning the validity of the development consent because a statutory limitation period under s 4.59 of the EP&A Act applies; accordingly, leave was not required for those claims. In relation to judicial review of CC1, there is no statutory bar and r 59.10 applies. Despite a significant delay, the complexity of fact-finding, the nature of the proceedings, and the continuing involvement of the respondents meant leave should be granted to extend time for the CC1 judicial review.

Court Disposition

Notice of motion for leave to commence proceedings regarding development consent dismissed as leave not required; leave granted to commence proceedings out of time regarding CC1; costs reserved.

Orders

  • Pursuant to r 59.10 the Applicant is given leave to commence proceedings seeking judicial review of the decision to grant CC1 in accordance with the Third Further Amended Summons and Points of Claim. The time to commence such proceedings is extended to 25 September 2019.
  • The Applicant is given leave to rely upon the Third Further Amended Summons and Points of Claim with the addition of the handwritten amendment to 15D(B)(i) of the Summons.