Penrith City Council v Settlers Estate Pty Ltd [2020] NSWLEC 99

Penrith City Council v Settlers Estate Pty Ltd [2020] NSWLEC 99

Leave to re-open was refused because the location of the works was always a pleaded and submitted issue, the respondents gave no cogent explanation for failing to adduce the survey evidence earlier, the proposed expert evidence was inadmissible in its current form and non-compliant with the expert evidence rules, its probative value was diminished by the respondents' concession that other evidence existed on the point, and admitting it would prejudice the Council by likely requiring reply expert evidence, possible cross-examination, adjournment, delay and further costs in urgent Class 4 proceedings.

Jurisdiction
Australia
Judgment Date
24 July 2020
Procedural Posture
Class 4 Proceedings; Procedural Notice of Motion for Leave to Re Open to Adduce Further Expert Survey Evidence / Second Application to Re Open Respondents' Case Before Judgment on a Separate Question
Outcome
Notice of motion filed on 13 July 2020 dismissed; leave to re-open to adduce expert survey evidence refused with costs.
Legal Topics
['application for Leave to Re Open' 'adducing Further Expert Survey Evidence' 'integrated Development Consents and Controlled Activity Approvals' 'prejudice, Delay and Costs' 'expert Report Admissibility']
['civil Procedure' 'planning and Environment' 'expert Evidence' 'costs'] ['application for Leave to Re Open' 'adducing Further Expert Survey Evidence' 'integrated Development Consents and Controlled Activity Approvals' 'prejudice, Delay and Costs' 'expert Report Admissibility']

Case Brief

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Procedural Posture

Class 4 Proceedings; Procedural Notice of Motion for Leave to Re Open to Adduce Further Expert Survey Evidence / Second Application to Re Open Respondents' Case Before Judgment on a Separate Question

Legal Issues

  1. 1 ['Whether the respondents should be granted leave to re-open their case to adduce further expert survey evidence concerning the as-executed location of Drainage Line A and the headwall.' 'Whether the asserted issue about the positioning or location of the works arose without notice to the respondents.' 'Whether the proposed survey evidence was admissible in its current form and compliant with the expert evidence requirements of the Uniform Civil Procedure Rules 2005.' 'Whether admitting the evidence would prejudice the Council by requiring reply survey evidence, cross-examination, adjournment and further delay.' 'Whether there was a cogent explanation for the respondents not adducing the evidence earlier.']

Ratio Decidendi

Leave to re-open was refused because the location of the works was always a pleaded and submitted issue, the respondents gave no cogent explanation for failing to adduce the survey evidence earlier, the proposed expert evidence was inadmissible in its current form and non-compliant with the expert evidence rules, its probative value was diminished by the respondents' concession that other evidence existed on the point, and admitting it would prejudice the Council by likely requiring reply expert evidence, possible cross-examination, adjournment, delay and further costs in urgent Class 4 proceedings.

Court Disposition

Notice of motion filed on 13 July 2020 dismissed; leave to re-open to adduce expert survey evidence refused with costs.

Orders

  • ['The notice of motion filed on 13 July 2020 is dismissed.' "The respondents are to pay the applicant's costs of the motion, including the application to adjourn the motion." "The respondents are to pay the applicant's costs thrown away preparing for the foreshadowed draft notice of motion attached to the email from...