Woollahra Municipal Council v Ferella [2005] NSWLEC 402

Woollahra Municipal Council v Ferella [2005] NSWLEC 402

The consent orders noting Mr Ferella's undertaking had been entered and sealed, and the proposed release from the undertaking was not authorised by Pt 15 r 9 of the Land and Environment Court Rules 1996, did not involve fraud or a void or voidable agreement, and did not fall within any inherent-jurisdiction exception to prevent procedural injustice. The Court therefore had no jurisdiction or basis to vary the perfected orders and dismissed the respondent's motion.

Jurisdiction
Australia
Judgment Date
30 June 2005
Procedural Posture
Practice and Procedure Motion to Vary Consent Orders After Final Orders Made / Ex Tempore Judgment on the Respondent's Notice of Motion Dated 10 June 2005
Outcome
Respondent's notice of motion dismissed; applicant's security for costs motion also dismissed with no order as to costs.
Legal Topics
['consent Orders' 'variation of Perfected Orders' 'jurisdiction to Reopen Final Orders' 'undertakings Noted by the Court' 'costs']
['practice and Procedure'] ['consent Orders' 'variation of Perfected Orders' 'jurisdiction to Reopen Final Orders' 'undertakings Noted by the Court' 'costs']

Case Brief

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Procedural Posture

Practice and Procedure Motion to Vary Consent Orders After Final Orders Made / Ex Tempore Judgment on the Respondent's Notice of Motion Dated 10 June 2005

Legal Issues

  1. 1 ['Whether the Land and Environment Court had jurisdiction to vary consent orders, entered and sealed on 16 April 2003, so as to release the respondent from an undertaking to backfill a void under a slab.' 'Whether the circumstances fell within any statutory or common law exception to the general rule that perfected final orders are beyond recall by the court that made them.']

Ratio Decidendi

The consent orders noting Mr Ferella's undertaking had been entered and sealed, and the proposed release from the undertaking was not authorised by Pt 15 r 9 of the Land and Environment Court Rules 1996, did not involve fraud or a void or voidable agreement, and did not fall within any inherent-jurisdiction exception to prevent procedural injustice. The Court therefore had no jurisdiction or basis to vary the perfected orders and dismissed the respondent's motion.

Court Disposition

Respondent's notice of motion dismissed; applicant's security for costs motion also dismissed with no order as to costs.

Orders

  • ["The respondent's notice of motion dated 10 June 2005 is dismissed." 'The respondent must pay the costs of that notice of motion.' "The applicant's notice of motion filed on 17 June 2004 for security for costs is dismissed, with no order as to costs."]