Grace & Anor v Thomas Street Café Pty Ltd & Ors (No 2) [2008] NSWCA 72

Grace & Anor v Thomas Street Café Pty Ltd & Ors (No 2) [2008] NSWCA 72

The appellants succeeded on the legal issue that the use of the premises as a café was unlawful, and were entitled to a declaration to that effect; costs of the appeal were awarded to appellants except for costs related to the issue of injunctive relief, which was remitted for further determination; costs of that issue and hearing at first instance to be determined following remitter.

Jurisdiction
Australia
Judgment Date
24 April 2008
Procedural Posture
Appeal / Consequential Orders/remitter Following Successful Appeal
Outcome
Appeal allowed; prior orders vacated; declaration made; matter remitted to lower court; costs adjusted as per new orders.
Legal Topics
['costs' 'existing Use Rights' 'injunctive Relief' 'appeal Procedure' 'declaratory Relief']
['civil Procedure' 'planning and Environment Law'] ['costs' 'existing Use Rights' 'injunctive Relief' 'appeal Procedure' 'declaratory Relief']

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Procedural Posture

Appeal / Consequential Orders/remitter Following Successful Appeal

Legal Issues

  1. 1 ['Whether the premises have existing use rights within the meaning of s 106 of the Environmental Planning and Assessment Act 1979 for restaurant or café use' 'Whether costs of appeal should be awarded, reserved, or otherwise varied pending further determination of relief' 'Reopening or varying costs orders based on without prejudice correspondence/settlement offers']

Ratio Decidendi

The appellants succeeded on the legal issue that the use of the premises as a café was unlawful, and were entitled to a declaration to that effect; costs of the appeal were awarded to appellants except for costs related to the issue of injunctive relief, which was remitted for further determination; costs of that issue and hearing at first instance to be determined following remitter.

Court Disposition

Appeal allowed; prior orders vacated; declaration made; matter remitted to lower court; costs adjusted as per new orders.

Orders

  • ['Orders made by the Court on 12 December 2007 are vacated and replaced.' 'Appeal allowed.' 'Orders made by the judge at first instance are set aside.' 'Declaration: 2 Thomas Street, McMahons Point NSW does not enjoy existing use rights under s 106 of the Environmental Planning and Assessment Act 1979 for a...