APKC Pty Ltd v Bayside Council

Category: Procedural rulings

Parties: APKC Pty Ltd (Applicant)
Bayside Council (Respondent)
Papapetros Pty Ltd (Applicant for joinder)

Representation: Counsel:
S Hanscomb (Applicant)
A Epstein (Solicitor)(Respondent)
J Doyle (Applicant for joinder)
Solicitors:
Kydon Segal Lawyers (Applicant)
Messenger Cole Solicitors (Respondent)
Madison Marcus (Applicant for joinder)

File Number(s): 2025/216843

Publication restriction: Nil

JUDGMENT

1. This matter is a notice of motion for the joinder by Papapetros Pty Ltd (Papapetros) as the second respondent to the substantive proceedings (the Motion).

2. The Notice of Motion was filed on 4 July 2025 and on the date of its first return was stood over to 1 August 2025 with orders for Papapetros to file and serve further evidence and a draft of its proposed Statement of Facts and Contentions (proposed SOFC). The Motion’s listing on 1 August 2025 was again vacated and the Motion stood over for hearing before me on 12 August 2025.

3. At the hearing of the Motion, Papapetros relied on 4 affidavits sworn by its solicitor on 4 July, 25 July, 5 August and 8 August 2025. The Applicant relied on the affidavit of its solicitor affirmed on 8 August 2025. Both the Applicant and Papapetros filed written submissions in respect of the Motion.

4. Papapetros seeks to be joined under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) which sets out the test for joinder as follows:

8.15 Miscellaneous provisions relating to appeals under this Division (cf previous s 97B; s 39A Land and Environment Court Act)

…

(2) On an appeal under this Division, the Court may, at any time on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion—

(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party, or

(b) that—

(i) it is in the interests of justice, or

(ii) it is in the public interest,

that the person be joined as a party to the appeal.

5. In the alternative, Papapetros seeks joinder on the basis that it is a necessary party to the proceedings under r 6.24 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). That rule states:

6.24 Court may join party if joinder proper or necessary (cf SCR Part 8, rule 8(1); DCR Part 7, rule 8(1); LCR Part 6, rule 8(1))

(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.

(2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.

6. The substantive proceedings are an appeal against the Council’s refusal to APKC’s modification application (MA) to modify condition 74 of its development consent.

7. APKC wishes to change condition 74, which currently reads:

“74. Any damage not shown in the dilapidation report required under Condition No. 12 submitted to Council before site works have commenced, will be assumed to have been caused as a result of the site works undertaken and must be rectified at the applicant's expense, prior to the issue of the Occupation Certificate.”

8. The MA seeks to amend condition 74 to remove the words underlined in the original consent so that the condition reads:

“74. Any damage not shown in the dilapidation report required under Condition No. 12 submitted to Council before site works have commenced, will be assumed to have been caused as a result of the site works undertaken and must be rectified at the applicant's expense.”

9. Papapetros occupies the site next door to the Applicant’s development at 589 Gardeners Road, Mascot, at which a motor vehicle repair and service workshop operates.

10. Following complaints by Papapetros, NSW Fair Trading issued a Rectification Order to APKC concerning damage caused to Papapetros’ property at 589 Gardeners Road, Mascot.

11. In 2024, Papapetros also commenced Supreme Court Proceedings against APKC for damage to its property at 589 Gardeners Road, Mascot alleged to have occurred as a result of the carrying out of the development by APKC.

12. The Motion is consented to by the Respondent, Bayside Council (Council), and opposed by the Applicant, APKC Pty Ltd (APKC).

13. Papapetros has served its proposed SOFC on the parties to the proceedings. The contentions it proposes to raise are summarised as follows:

14. Damage to the neighbouring Papapetros property;

15. Infringement of Papapetros’ ability under the EPA Act to compel the Applicant to rectify damage caused to the Papapetros property;

16. Validity of condition 74 of the development consent; and

17. Public interest.

18. It was conceded by Papapetros and the Council that Papapetros’ proposed SOFC in these proceedings is largely repetitive of the Council’s Statement of Fact and Contentions. It was put to me by the Applicant that for this reason I should dismiss Papapetros’ application for joinder.

19. However, Papapetros argued that its proposed SOFC is far more detailed and the evidence it could bring in support of its proposed contentions would be of benefit to the Court in resolving of the real issues in dispute in the proceedings.

20. The Applicant is correct that Papapetros’ proposed SOFC broadly addresses the Council’s Statement of Facts and Contentions. The Applicant is also correct that the issues sought to be raised by Papapetros have been ventilated repeatedly, including in Papapetros’ formal objection, in the Council’s assessment report and in the reasons given in the Council’s Notice of Determination. The Applicant is also correct that all that material would be provided to the Court on the appeal and will be considered by it: Morrison Design Partnerships Pty Ltd v North Sydney Council (2007) 159 LGERA 361; [2007] NSWLEC 802 at [44]-[45].

21. However, it is my view that in these proceedings it would be incorrect for me to conclude that the test for joinder accordingly fails on this ground. To this end I am guided by the decision of Robson J in Huajun Investments Pty Ltd v City of Canada Bay Council (No 2) [2018] NSWLEC 194, where his Honour said at [44] and [45] that:

“[44] Further, I note that whilst Huajun is correct to submit that the Court is able to reach an independent state of satisfaction with respect to the cl 4.6 request (and indeed, as Preston J noted at [203] of the CA decision, the Court is required to reached an independent state of satisfaction), the correct question is whether there are any issues in that respect which are not likely to be sufficiently addressed absent joinder. As Preston J observed in Avalon Beach at [10], whilst the Court can raise issues of its own volition, it will be assisted by proper argument which requires a contradictor.

[45] The legal principles in relation to joinder, as noted above, are well understood and do not require repetition. Despite this, it is clear that the “sting in the test” (to quote the words of Moore J in Suh v Liverpool City Council [2016] NSWLEC 25; (2016) 216 LGERA 84 at [35]) are the words “sufficiently addressed” in s 8.15(2)(a). This “test” is frequently considered when the application is founded upon issues which may already have been raised by the consent authority and on an application for joinder the applicant desires to supplement those issues.”

18. My view is that Papapetros is in a unique position to assist the Court in its determination of these proceedings by adducing evidence of the relevant damage it says has been caused and the consequences if that alleged damage is not promptly repaired. Furthermore, I agree with both the Council and Papapetros that the Court will have inadequate argument and evidence before it about those issues without the joinder of Papapteros.

19. As such, I consider the first limb of the test for joinder to be satisfied.

20. I must now consider whether it is appropriate to exercise my discretion and order joinder of Papapetros to the proceedings.

21. In the exercise of my discretion, the Court considers matters such as any delay in bringing the application, the likely strength of the issues proposed to be raised in the context of the overriding purpose of the “just, quick and cheap” resolution of proceedings, and any potential prejudice: Bongiorno Hawkins Frassetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205 (Bongiorno) at [6]. Further, a multiplicity of parties and multiplicity of experts is generally undesirable, as it undermines the efficient conduct of proceedings and Court practice: Garling v Northern Beaches Council [2022] NSWLEC 102 at [47] and: Bongiorno at [9].

22. With this guidance, my view is that the unique position that Papapetros has found itself in because of the Applicant’s development and the assistance it can provide to the Court demonstrates clear grounds for me to exercise my discretion in its favour.

23. The Court orders:

24. Papapetros Pty Ltd be joined as the second respondent.

25. Papapetros is to file and serve the Statement of Facts and Contentions in the form of Exhibit (3) by Friday, 29 August 2025.

26. The Applicant is to file its Statement of Facts and Contentions in Reply by 22 September 2025.

27. The conciliation conference listed on 14 October 2025 is confirmed.

S Froh

Registrar of the Court

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