Piety Developments Pty Ltd v Cumberland City Council (No 2) [2024] NSWCA 196

Piety Developments Pty Ltd v Cumberland City Council (No 2) [2024] NSWCA 196

Piety did not meet the Burgundy Royale threshold because it had no substantial prospect of obtaining special leave on its proposed grounds: the first proposed ground concerned factual issues about communication of acceptance and raised no identified question of public importance, and the second proposed ground under s 54A of the Conveyancing Act 1919 (NSW) had no prospects if special leave were refused on the first. The balance of convenience favoured the Council because the rescission motion might fail, Piety would not necessarily be prevented from seeking specific performance if it succeeded, the Council had a statutory obligation to consider the rescission motion, further delay could...

Jurisdiction
Australia
Judgment Date
07 August 2024
Procedural Posture
Urgent Notice of Motion for Stay or Restraint Pending Proposed Application for Special Leave to Appeal to the High Court of Australia / Court of Appeal Procedural Ruling After Dismissal of Appeal and Cross Appeal
Outcome
Notice of motion filed 6 August 2024 dismissed on the Council giving undertakings; applicant ordered to pay the respondent's costs.
Legal Topics
['stay Pending Special Leave Application' 'burgundy Royale Test' 'rescission Motion by Council' 'communication of Contractual Acceptance' 'specific Performance' 'balance of Convenience']
['practice and Procedure' 'appellate Procedure' 'contract Law' 'local Government'] ['stay Pending Special Leave Application' 'burgundy Royale Test' 'rescission Motion by Council' 'communication of Contractual Acceptance' 'specific Performance' 'balance of Convenience']

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Procedural Posture

Urgent Notice of Motion for Stay or Restraint Pending Proposed Application for Special Leave to Appeal to the High Court of Australia / Court of Appeal Procedural Ruling After Dismissal of Appeal and Cross Appeal

Legal Issues

  1. 1 ["Whether the Council should be restrained from taking action to rescind its 3 November 2021 resolution concerning the sale of 13 John St, Lidcombe pending Piety's proposed application for special leave to appeal." 'Whether Piety had a substantial prospect of obtaining special leave to appeal to the High Court.' "Whether the balance of convenience favoured a stay or restraint, having regard to potential prejudice to Piety, the Council's statutory obligations, delay, and the offered undertakings."]

Ratio Decidendi

Piety did not meet the Burgundy Royale threshold because it had no substantial prospect of obtaining special leave on its proposed grounds: the first proposed ground concerned factual issues about communication of acceptance and raised no identified question of public importance, and the second proposed ground under s 54A of the Conveyancing Act 1919 (NSW) had no prospects if special leave were refused on the first. The balance of convenience favoured the Council because the rescission motion might fail, Piety would not necessarily be prevented from seeking specific performance if it succeeded, the Council had a statutory obligation to consider the rescission motion, further delay could...

Court Disposition

Notice of motion filed 6 August 2024 dismissed on the Council giving undertakings; applicant ordered to pay the respondent's costs.

Orders

  • ["On the Cumberland City Council giving undertakings on a without admissions basis not to dispose of, or encumber, the subject land at 13 John St, Lidcombe NSW until Piety's application for special leave to the High Court is determined, and not to raise the passing of the rescission motion in opposing Piety's...