Grace & Anor v Thomas St Cafe Pty Limited & (3) Ors (No. 2) [2008] NSWLEC 179

Grace & Anor v Thomas St Cafe Pty Limited & (3) Ors (No. 2) [2008] NSWLEC 179

The application to vacate the hearing dates was dismissed on the ground that, in accordance with established principles, the pending proposal for rezoning and new development application do not justify an adjournment, especially where the cafe is not operating and uncertainty remains; adjudication of issues and costs requires the hearing to proceed, and the discretion under s124(3) should not be exercised at this stage.

Parties
Applicant: Peter Grace; Applicant: Angela Pearman; First Respondent: Thomas St Cafe Pty Limited; Second Respondent: Catherine Patricia Kortt; Third Respondent: Primary Court Pty Limited; Fourth Respondent: North Sydney Council
Jurisdiction
Australia
Judgment Date
23 May 2008
Procedural Posture
Application for Declaration and Injunction / Notice of Motion to Vacate Hearing Dates in a Remitted Hearing
Outcome
Notice of motion to vacate hearing dates dismissed with costs.
Legal Topics
Notice of Motion to Vacate Hearing, Adjournment Discretion, Existing Use Rights, Development Application, Proposed Rezoning
Planning Law Environmental Law Practice and Procedure Notice of Motion to Vacate Hearing Adjournment Discretion Existing Use Rights Development Application Proposed Rezoning

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 2 Authorities cited 9 Party arguments 2
Sign in to unlock

Parties

Peter Grace

Applicant

Angela Pearman

Applicant

Thomas St Cafe Pty Limited

First Respondent

Catherine Patricia Kortt

Second Respondent

Primary Court Pty Limited

Third Respondent

North Sydney Council

Fourth Respondent

Procedural Posture

Application for Declaration and Injunction / Notice of Motion to Vacate Hearing Dates in a Remitted Hearing

Legal Issues

  1. 1 Whether hearing dates should be vacated pending development application and proposed rezoning
  2. 2 Whether the court's discretion under s124(3) Environmental Planning and Assessment Act 1979 should be exercised to adjourn proceedings

Ratio Decidendi

The application to vacate the hearing dates was dismissed on the ground that, in accordance with established principles, the pending proposal for rezoning and new development application do not justify an adjournment, especially where the cafe is not operating and uncertainty remains; adjudication of issues and costs requires the hearing to proceed, and the discretion under s124(3) should not be exercised at this stage.

Court Disposition

Notice of motion to vacate hearing dates dismissed with costs.

Orders

  • The motion to vacate the hearing dates is dismissed with costs.