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[2026] NSWSC 1100
Supreme Court of NSW
2026-08-13
Cavanagh J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Altis Frasers JV Pty Ltd as Trustee of ARET Frasers Project Trust v Sydney Water Corporation [2026] NSWSC 1100
Hearing dates: 13 August 2026
Date of orders: 13 August 2026
Decision date: 13 August 2026
Jurisdiction: Common Law
Before: Cavanagh J
Decision: (1) The motion is dismissed (on the basis that if the defendant wishes to reagitate the issue of cross-examining witnesses it may do so on another motion).
(2) The defendant is to pay the plaintiff’s costs of the motion. Such costs are limited to costs of the initial consideration of the motion, preparation of the motion, attendance at the hearing today, and excludes all costs of the negotiations and discussions between the parties prior to the motion.
Catchwords: CIVIL PROCEDURE — judicial review proceedings — plaintiff a property developer — defendant a statutory authority — plaintiff challenges validity of infrastructure contribution charges issued by defendant — application of defendant for discovery pursuant to r 59.7 of the Uniform Civil Procedure Rules 2005 (NSW) — whether discovery sought is reasonably necessary to dispose fairly of the cause of action or is in the interests of a fair trial — no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 21.2, 59.7, 59.10
Cases Cited: General Nominees Pty Ltd v Metro Inner-North Joint Development Assessment Panel [2022] WASC 114 Montenegro v Legal Profession Admission Board [2026] NSWCA 21 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Category: Procedural rulings
Parties: Altis Frasers JV Pty Ltd as Trustee of the ARET Frasers Project Trust (First Plaintiff)
The Trust Company (Australia) Limited (Second Plaintiff)
Sydney Water Corporation (Defendant)
Representation: Counsel:
R Mansted (Plaintiffs)
C Beshara (Defendant)
Solicitors:
Mallesons (Plaintiffs)
Ashurst Perkins Coie (Defendant)
File Number(s): 2025/00292573
HIS HONOUR: The first plaintiff, a developer, which I shall refer to as the plaintiff for the purposes of this judgment, seeks orders for judicial review of decisions made by the defendant, the Sydney Water Corporation (“Sydney Water”), to issue five invoices for infrastructure contributions in respect of the plaintiff's development of a project known as The Yards in the Mamre Road precinct in Western Sydney.
In effect, the plaintiff seeks declarations that the decision of Sydney Water to issue the five invoices for specific amounts (totalling approximately $48 million) is invalid and of no effect.
In the alternative, the plaintiff seeks declarations that the decision of Sydney Water to issue what I will describe as the preliminary notices (that is, the indication of the likelihood of a contributions charge being laid) are invalid and are of no effect.
On 22 October 2025, Sydney Water filed a response to the summons, setting out its response to each of the orders sought and the grounds referred to in the summons.
By a notice of motion filed on 8 May 2026, Sydney Water seeks leave to do two things: firstly, to cross-examine two of the plaintiff’s witnesses pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 59.7(3), and secondly, for discovery pursuant to UCPR, r 59.7(4), in respect of categories of documents identified in annexure A to the motion which Sydney Water has previously provided to the plaintiff.
Following discussions between the parties, Sydney Water agreed, firstly, not to pursue the orders in respect of cross-examination at this time, and secondly, to limit the categories of documents for which discovery was sought.
The effect of that position is that there remain four categories of documents in dispute. The plaintiff’s position is that it opposes giving discovery in respect of any categories.
The parties were very expertly represented by Mr Beshara of counsel on behalf of Sydney Water and Ms Mansted of counsel on behalf of the plaintiff. I received helpful and extensive oral and written submissions from them.
As I said, the background to this dispute is that the plaintiff obtained approval to develop the land in the Mamre Road precinct.
Between 2008 and October 2022, water infrastructure delivered by Sydney Water was not subject to infrastructure contributions payable by developers. However, in 2020, the New South Wales Productivity Commission considered the issue and suggested that water infrastructure contributions be reintroduced. As I understand it, then in October 2022, the New South Wales Treasurer issued a letter to Sydney Water approving the reintroduction of infrastructure contributions for water, sewerage and stormwater.
The effect of all of this is that Sydney Water then set about complying with its obligations and issuing invoices for infrastructure contributions. The process which was adopted, Sydney Water says in accordance with the legislation governing its operation, being the Sydney Water Act 1994 (NSW), was that it would firstly issue a number of notices of requirements, which is a document which provides some information to a party such as the plaintiff as to the basis on which infrastructure contributions might be charged and indeed the amount that might be charged.
There is no dispute in these proceedings that Sydney Water issued a number of those notices. Indeed, the notices were issued in the period commencing April 2024.
Subsequent to the notices being provided, Sydney Water would then issue an invoice requiring payment of the assessed infrastructure contributions, in this case to the plaintiff. Those invoices were issued in May 2025.
The plaintiff filed the summons for judicial review on 31 July 2025.
These proceedings are governed by UCPR, Pt 59. Part 59 sets out the procedural rules for judicial review proceedings, including rules concerning the content of a summons, service, responses to summons and the procedure for evidence generally.
Rule 59.7(4) is in the following terms:
59.7 Procedure—evidence generally
…
(4) A party may not, without the leave of the court, seek discovery from, or interrogate, another party to the proceedings. An application for leave is to include a draft list of categories of documents to be discovered or draft interrogatories.
As is apparent from r 59.7(4), a party may not, without the leave of the court, seek discovery from another party to the proceedings. An application for leave is to include a draft list of categories or documents to be discovered. Sydney Water has complied with that requirement and, by its motion, is seeking leave.
Rule 59.10 specifies a time limit for commencing judicial review proceedings as being within three months of the date of the decision.
The plaintiff commenced these proceedings within three months of the date of the issuing of the invoices, but not within three months of the date of the issuing of the notices. Sydney Water maintains that, in those circumstances, having regard to the orders sought in the summons and the grounds for the orders, the plaintiff will require an extension of time.
Rule 59.10(3) refers to the matters, in a non-inclusive way, that the court should take account of in determining whether an extension of time should be granted. Those matters include (a) any particular interest of the plaintiff in challenging the decision; (b) possible prejudice to other persons caused by the passage of the time if the relief is granted, including but not limited to prejudice to parties to the proceedings; (c) the time at which the plaintiff became or by exercising reasonable diligence should have become aware of the decision; and (d) any relevant public interest.
As submitted on behalf of the plaintiff, the circumstances in which discovery would be granted in judicial review proceedings would generally be considered quite limited or even rare. Ms Mansted suggests that the parties have been unable to find any case where discovery has been granted in circumstances akin to this application. Of course, that of itself does not preclude discovery being granted.
Importantly, Sydney Water is not seeking discovery of documents from the plaintiff in respect of matters which might go to the validity of its decisions, that is, the principal issue in the proceedings.
Rather, Sydney Water is seeking discovery of documents, which it says are relevant to two other issues which will arise in these proceedings, being:
Whether the plaintiff should be granted an extension of time to pursue these proceedings (if that is necessary, which the defendant says it is not); and
Whether, even if the court accepts the principle contentions raised by the plaintiff, the court should exercise its discretion not to make the declarations or orders sought.
It is agreed by the parties that the court has an overriding discretion in these types of proceedings. On behalf of Sydney Water, reference is made to a number of cases in which the issue of discretion has been considered. In particular, Sydney Water relies on the decision the Supreme Court of Western Australia in General Nominees Pty Ltd v Metro Inner-North Joint Development Assessment Panel [2022] WASC 114. In that case, Tottle J said, at [151]:
“The discretion to refuse relief on the ground of delay must be exercised having regard to all the circumstances of the impugned decision and the challenge to it. Without being exhaustive, those circumstances include: the nature of the decision and the activities regulated or affected by it, any factual or legal complexities associated with the decision, the length of the delay, any explanation offered for the delay, the effect of the decision on the personal and commercial interests of those affected by it (including prejudice to proponents or opponents of the decision and prejudice to third parties), and the existence of other methods of challenging the decision. Each case must be determined on its own facts - a delay of three months in one case may be decisive but in another it may be of no significance.”
Sydney Water submits that the question of whether the court should exercise its discretion is particularly significant in this matter because it says that, if the plaintiff is successful in its case, the burden of this sum of money, that is, the $48 million, will fall either on it or on third parties. Sydney Water submits that this is an important discretionary factor.
The plaintiff says that Sydney Water’s general proposition that the question of whether the court should exercise its discretion will be a significant matter in the proceedings is not consistent with the rare circumstances in which a court may decline to make orders which should otherwise be made on a discretionary basis. For example, the defendant refers to the reasons of Gummow and Gaudron JJ in the judgment of the High Court in Re Refugee Review Tribunal*; Ex* parte Aala (2000) 204 CLR 82; [2000] HCA 57, pointing out that their Honours made plain that the discretion not to make the orders against a grant of a final remedy is not exercised lightly, and the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the law which governs their exercise.
In other words, the plaintiff submits that it is highly unlikely that the Court would exercise its discretion not to make orders if the plaintiff succeeds on its primary contention. That is, that the issuing of the notices and the invoices was invalid as being beyond power or contrary to the statutory powers which govern the operation of Sydney Water.
In support of the application, the Sydney Water relies on the following affidavits:
Affidavit of Ruby Grace Bishop dated 8 May 2026; and
Affidavit of Rebecca Elizabeth Dixon dated 30 June 2026.
The plaintiff relies on the following affidavits:
Affidavit of Kate Dean dated 2 June 2026; and
Affidavit of Luke Salem dated 31 July 2026.
“6 Documents comprising any correspondence, communications, minutes, files notes or records of discussions or meetings (other than those exchanged between the Plaintiffs and Sydney Water) recording or referring to the Plaintiffs’ understanding of the effect of the IC Deed as referred to in [92] and [112] of the O’Connor Affidavit.
7 Documents recording any consideration as to the timing of commencing proceedings challenging the Notices of Requirements for the Yards Development (Decisions A-E as defined in the Plaintiff’s Summons) or for the purposes of the ID Deed.
…
9 Documents recording any communications between 18 October 2022 and 1 May 2025 concerning the timing or quantum of the Infrastructure Contribution Charges for the Yards Development, including records of discussions and correspondence between the Plaintiffs and government agencies (other than Sydney Water), consultants, or adjoining owners.
…
11 Documents recording any consideration of the financial impact of the requirement to pay Infrastructure Contribution Charges on the feasibility or profitability of the Yards Development.”
As is well-known, discovery of documents may only be given if the document sought is relevant to a fact in issue: see UCPR, r 21.2(4). It is taken to be relevant to a fact in issue, if it could or contains material that could rationally affect the assessment of the probability of the existence of the fact in issue, otherwise than by relating solely to the credibility of a witness, regardless of whether the document or thing would be admissible in evidence.
In Montenegro v Legal Profession Admission Board [2026] NSWCA 21 at [51]-[52], Stern JA set out the principles guiding discovery in an application for judicial review:
“[51] A party seeking discovery in an application for judicial review may not do so without leave of the court: UCPR, r 59.7(4). Discovery must be relevant to facts in issue: UCPR, r 21.2(4); Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 (Brereton J) at [21]-[22]. A document is taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence: UCPR, r 21.1(2).
[52] Discovery must also be reasonably necessary for disposing fairly of the cause or matter or in the interests of a fair trial: Graphite Energy at [19]. Discovery will not be ordered for the purpose of carrying out a fishing expedition, that is, to ascertain whether a case exists rather than to compel production of documents where there is already some evidence that a case exists: Trade Practices Commission v CC (New South Wales) Pty Limited (1995) 58 FCR 426 at 438 (Lindgren J).”
The first two categories, being category 6 and category 7, are said to be relevant to the question of whether the plaintiff should be granted an extension of time to pursue these proceedings.
There has been correspondence between the parties about this issue. The plaintiff maintains that it does not need an extension of time, but if it does, it says that it simply relies on the terms of an agreement between the parties, styled an Infrastructure Contribution Deed, which was entered into on 29 November 2023.
Clause 4.3 of the deed purports to impose obligations on the developer which must be performed within 60 days of receipt of a payment notice (the invoice issued by Sydney Water). Within 60 days, the developer must either pay the infrastructure contribution, commence court proceedings in respect of that development, or direct the custodian to commence court proceedings.
The plaintiff says that it complied with cl 4.3.
Sydney Water says that there is a different construction of cl 4.3 available which must depend upon the definitions of the words, “court declaration” and “court proceedings”. Sydney Water says that the attempt by the plaintiff to rely on the deed is misplaced and that on a proper construction of the deed, it does not mean what the plaintiff suggests. I am being necessarily vague about this issue in this judgment because it is unnecessary for me to make any comment about the strengths of the party's competing submissions about this.
The significance of the deed is that Sydney Water submits that its need for discovery of categories 6 and 7 is highlighted by evidence which the plaintiff will be relying on in the proceedings, being an affidavit of an employee of the plaintiff, Stephen O’Connor, dated 16 December 2025.
Sydney Water points to pars (110) to (112) of that affidavit, as follows:
”110 On 31 July 2025, the Plaintiffs commenced proceedings by way of Summons, which was within 60 days of the receipt of the Tax Invoices.
111 As discussed in paragraph [107], the Plaintiffs first became aware of the specific financial implications of the infrastructure charges on 23 May 2025.
112 I considered that it was not necessary for the Plaintiffs to commence proceedings challenging the contributions earlier, having regard to the terms of the Deed. My understanding of the Deed was that the Defendant and the Plaintiffs had agreed that the Plaintiffs would only challenge the contributions when the value of those contributions was known and a notice (or notices) containing the amount of the infrastructure contributions was issued by the Defendant.”
Sydney Water says that, on its understanding, the plaintiff will be relying on what Mr O’Connor says, partly in support of any application for an extension of time. Sydney Water says that in circumstances in which the plaintiff appears to be relying on Mr O’Connor’s understanding of the deed, and, whether he considered it necessary to commence proceedings earlier, it seeks discovery of documents relating to the matters to which Mr O’Connor deposes.
Category 6 specifically refers to the plaintiff’s understanding of the effect of the deed as referred to in Mr O’Connor’s affidavit, and category 7 refers to documents recording any consideration of the timing of commencing proceedings challenging the notices of requirements. In effect, Sydney Water seeks to obtain evidence relevant to what it says will be the plaintiff’s application for an extension of time.
Having heard the submissions from Mr Beshara on behalf of Sydney Water, I understood well the basis on which discovery was sought. However, it was then submitted on behalf of the plaintiff that the plaintiff would not be relying on Mr O’Connor’s understanding as part of any evidence seeking an extension of time. The plaintiff will be simply relying on the terms of the deed itself (to which I have just referred) and it says perhaps other documents which it will obtain from Sydney Water or which are already available between the parties.
It must be said, having regard to the correspondence between the parties and indeed the submissions of Sydney Water, that Sydney Water has difficulty accepting, at face value, that concession or statement. However, I have made it clear and it appears on the transcript, that that is the position that the plaintiff is adopting. It is difficult to understand how the plaintiff could resile from such a position without giving notice to Sydney Water and, of course, providing an opportunity for Sydney Water to re-agitate the position that it is agitating today.
The concession from the bar table about non-reliance on Mr O’Connor’s affidavit negates the need for discovery on this particular issue. Mr Beshara pressed the point on the basis that Sydney Water should still be entitled to undertake an examination of the plaintiff’s documents so that it can be in a position to make submissions as to why leave should not be granted. In my view, that is simply a fishing expedition.
The simple point is that the plaintiff has indicated in court today that, if it needs to seek an extension of time, it will be doing so by relying only on the terms of the deed itself and some other documents which are already available to the parties.
As has been indicated, leave should be granted for discovery in a case such as this (only sparingly). Further, in determining whether to grant leave, I must have regard to all of the evidence.
The plaintiff in its evidence relies on estimates as to the cost of discovering such documents and the volume of such documents. Whilst in my experience I must take such estimates with a grain of salt, they are estimates that are made and I accept that there would be significant work involved in complying with the orders for discovery. The cost and inconvenience to the plaintiff is a factor which must be borne in mind.
In the end, having regard to what I will call the concession made by the plaintiff, I am not satisfied that a discovery of categories 6 and 7 is necessary, and in all those circumstances, there will be no order for discovery in respect of those categories.
The second reason that the Sydney Water wants discovery is because it wishes to adduce evidence on the issue of the exercise of the discretion. It is foreshadowed that, should the court be minded to make the orders sought, that is, should the plaintiff be generally successful on its contentions, Sydney Water will ask the court not to make the orders on discretionary grounds. I have already said something about the general issue of discretion.
In this regard, Sydney Water says that there are a number of matters which might be relevant to the exercise of discretion, including acquiescence, delay, the impact on third parties and the financial capacity of the plaintiff. In other words, the financial impact on the plaintiff of the total amount of the invoices issued.
Sydney Water refers in particular to par (106) of Mr O’Connor’s affidavit, where he says that the amount of the invoice is approximately 5.7 per cent of the total cost incurred by the plaintiff in connection with The Yards development as of December 2025.
Sydney Water wishes to have discovery of categories 9 and 11, as those documents are said to go to the issue of the court’s discretion, and in particular, the response of the plaintiff to the notices and the impact of those notices, and I assume the ultimate invoices, would have on the feasibility or profitability of The Yards development.
Sydney Water says two things about the statement in par (106) of Mr O’Connor’s affidavit, being, firstly, that it is now well out of date, and secondly, that that mere statement by Mr O’Connor is insufficient information for it to obtain evidence on discretionary factors. That is, it wishes to obtain further information from the plaintiff as to the financial impact, which might allow it to make a submission that the financial impact is really different from that which is asserted for by Mr O’Connor or not as significant. In other words, it wishes to investigate whether the financial impact is really as Mr O’Connor says.
There is a document which is (in part) commercially sensitive, which refers to the total cost of being around $1 billion. I mention that because the plaintiff has agreed that that part is not commercially sensitive. It is thus not difficult to understand where Mr O’Connor’s estimate of 5.7 per cent comes from, bearing in mind that general estimate of the expenses being a billion dollars.
Whilst there may be some merit to Sydney Water’s submissions, there are other important matters which bear upon my decision in respect of categories 9 and 11.
Firstly, I accept, at least on a general basis, that the idea that the court might accept that the issuing of the invoices and notices of requirements were invalid but still exercise its discretion not to grant the relief sought, is a somewhat bold proposition.
I only say that, because as a matter of general principle, it is perhaps difficult to understand why the court would not make the orders. However, as Mr Beshara pointed out, the amount which Sydney Water seeks to invoice the plaintiff will, if not paid by the plaintiff, fall on another party. There are discretionary factors at play and I do not mean to be suggesting other than that is an issue which the Sydney Water can fairly pursue.
Secondly, I have difficulty with Mr Beshara’s suggestion that whether or not the impact on the plaintiff is 4 per cent or 5 per cent or 8 per cent is of any real significance in this case. Sydney Water seeks to invoice or has invoiced the plaintiff for $48 million. Whether that amount is 10 per cent of the total charges or 2 per cent of the total charges being incurred by the plaintiff, it is nearly $50 million. It would be most surprising if it could be seriously suggested that a charge of $50 million did not have a significant impact on the development as a whole or on the profitability or financial operation of the development.
In my view, it is the amount rather than the percentage which is important.
Thirdly, the plaintiff also points out that the matters raised today and in the earlier correspondence are not the subject of any pleading. Indeed, the plaintiff submits that in the response to the summons, that is par (6), Sydney Water merely says that the relief sought by the plaintiff is futile and should not be granted because in the event that the decisions are set aside and the matter remitted for further determination, the infrastructure contributions will be required at law to be fixed in a different means or on a different basis (as I understand par (6)).
Again, the point is that the plaintiff says that Sydney Water has not raised that it will be relying on different discretionary grounds for the purposes of resisting the orders sought in the summons. That might be something which Sydney Water wishes to address. It is a valid point made by the plaintiff, albeit my decision would not be different if it was pleaded.
It is submitted that the documents sought in category 9 and, in particular, category 11 will provide a basis for comparing the financial impact on the plaintiff with the impact on Sydney Water and third parties. Again, I am unable to accept that much more information would be needed other than that set out in the affidavit of Mr O’Connor. Further, if the problem is that his estimate is not up-to-date, then a further affidavit can be provided by him based on up-to-date figures. I apprehend that the plaintiff would be happy to do that but in any event I could make such an order, if required.
The submission made by Sydney Water that the effect of relieving the plaintiff from paying the infrastructure contributions will allow the plaintiff to take the benefit of Sydney Water’s infrastructure without contributing to their costs, and that such costs will then be borne by Sydney Water’s wider customer base is well made, but not obtaining further documents about the plaintiff's financial position would not in any way detract from that submission. Obtaining further documents from the plaintiff about its financial position would similarly not assist in making any submission about the fact that Sydney Water is seeking to charge the plaintiff $48 million.
Again, I emphasise that nothing I say should be taken as any indication that Sydney Water is not entitled to pursue that submission. I am simply dealing with the proposition advanced on behalf of Sydney Water that it needs discovery as it needs to know more about the financial impact on the plaintiff.
For the reasons I have set out, I am not satisfied that it is appropriate in the circumstances of this case that an order for discovery be made in any of the categories now sought by Sydney Water.
I emphasise that, in coming to that view, I have had regard to the reason advanced by Sydney Water as to why it needed discovery in respect of categories 6 and 7, and the concession made by the plaintiff about Mr O’Connor’s affidavit, and then have had regard to the issue of discretionary factors for categories 9 and 11.
In the circumstances, the motion will be dismissed (on the basis that if the Sydney Water wishes to re-agitate the issue of cross-examining witnesses), it may do so pursuant to another motion, and it is not precluded from doing so by this motion.
Therefore, I make the following orders:
The motion is dismissed (on the basis that if the defendant wishes to reagitate the issue of cross-examining witnesses it may do so on another motion).
The defendant is to pay the plaintiff’s costs of the motion. Such costs are limited to costs of the initial consideration of the motion, preparation of the motion, attendance at the hearing today, and excludes all costs of the negotiations and discussions between the parties prior to the motion.
**********
Altis Frasers JV Pty Ltd as Trustee of ARET Frasers Project Trust
Sydney Water Corporation