Jeloudev v William Lohman [2010] NSWSC 1229

Jeloudev v William Lohman [2010] NSWSC 1229

Given defendant's absence and probable futility of a request, and plaintiff’s right under the carriageway easement, the court may order that the defendant consent to the application, and, in default, the Registrar execute the consent pursuant to Civil Procedure Act, s 94.

Jurisdiction
Australia
Judgment Date
20 September 2010
Procedural Posture
Order for Substituted Performance / Post Hearing Judgment
Outcome
Order granted for defendant to consent to development application, Registrar to execute consent if defendant fails to comply; defendant to pay plaintiff's costs.
Legal Topics
['substituted Performance' 'execution of Documents' 'right of Carriageway' "owner's Consent for Development Application"]
['civil Procedure' 'property Law'] ['substituted Performance' 'execution of Documents' 'right of Carriageway' "owner's Consent for Development Application"]

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Procedural Posture

Order for Substituted Performance / Post Hearing Judgment

Legal Issues

  1. 1 ['Whether the court can make an anticipatory order for execution of a document in anticipation of non-compliance' "Whether registrar can execute owner's consent to development application when defendant does not comply"]

Ratio Decidendi

Given defendant's absence and probable futility of a request, and plaintiff’s right under the carriageway easement, the court may order that the defendant consent to the application, and, in default, the Registrar execute the consent pursuant to Civil Procedure Act, s 94.

Court Disposition

Order granted for defendant to consent to development application, Registrar to execute consent if defendant fails to comply; defendant to pay plaintiff's costs.

Orders

  • ['Order that the defendant by 27 September 2010 consent for Environmental Planning and Assessment Regulation 2000, cl 49(1)(b), to lodgement of development application DA1366/2009 and execute all necessary documents.' 'Order that upon proof of service and non-compliance by defendant, consent be executed by the...