Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86

Conway v Leeroy Property Investments Pty Ltd [2023] NSWLEC 86

The Land and Environment Court does not have jurisdiction in Class 4 proceedings to determine the applicant’s claim for an implied or statutory easement as ancillary to the planning law claim. The more appropriate forum to hear the entire controversy is the Supreme Court of New South Wales. Accordingly, the proceedings are ordered to be transferred to the Supreme Court under s 149B(1) of the Civil Procedure Act 2005 (NSW), with no order as to costs on the motions.

Jurisdiction
Australia
Judgment Date
18 August 2023
Procedural Posture
Judicial Review (class 4 Proceedings) / Determination of Transfer and Strike Out Motions Prior to Substantive Hearing
Outcome
Proceedings ordered to be transferred to the Supreme Court of New South Wales; no order as to costs.
Legal Topics
['transfer of Proceedings' 'jurisdiction—ancillary and Exclusive' 'implied and Statutory Easements' 'judicial Review of Development Consent' 'out of Time Proceedings' 'strike Out Applications']
['administrative Law' 'property Law' 'planning and Environment Law' 'civil Procedure'] ['transfer of Proceedings' 'jurisdiction—ancillary and Exclusive' 'implied and Statutory Easements' 'judicial Review of Development Consent' 'out of Time Proceedings' 'strike Out Applications']

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 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Judicial Review (class 4 Proceedings) / Determination of Transfer and Strike Out Motions Prior to Substantive Hearing

Legal Issues

  1. 1 ['Whether the applicant requires leave to commence proceedings out of time pursuant to r 59.10(2) UCPR' 'Whether the Land and Environment Court has jurisdiction to hear and determine the claim for an implied or statutory easement as ancillary to judicial review proceedings' 'Whether proceedings should be transferred to the Supreme Court under s 149B of the Civil Procedure Act 2005 (NSW)' 'Whether the Court should strike out parts of the summons seeking easement relief']

Ratio Decidendi

The Land and Environment Court does not have jurisdiction in Class 4 proceedings to determine the applicant’s claim for an implied or statutory easement as ancillary to the planning law claim. The more appropriate forum to hear the entire controversy is the Supreme Court of New South Wales. Accordingly, the proceedings are ordered to be transferred to the Supreme Court under s 149B(1) of the Civil Procedure Act 2005 (NSW), with no order as to costs on the motions.

Court Disposition

Proceedings ordered to be transferred to the Supreme Court of New South Wales; no order as to costs.

Orders

  • ['Pursuant to s 149B(1) of the Civil Procedure Act 2005 (NSW), these proceedings be transferred to the Supreme Court of New South Wales.' 'No order as to costs of the notices of motion filed 5 December 2022 and 3 February 2023.']