Bayside Council v Morton

Parties: Bayside Council (Plaintiff)
Dean Morton (Defendant)

Representation: Solicitors:
Lindsay Taylor Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2025/138247

Publication restriction: Nil

JUDGMENT

1. By motion supported by an affidavit of its solicitor Ms Hawley, the Council sought orders transferring these proceedings to the Land and Environment Court for hearing, there being related other proceedings on foot between them in that Court. This Court has power to make such an order under s 149B of the Civil Procedure Act 2005 (NSW). The parties have now agreed to the transfer and ask the Court to order it, by consent.

2. Such an order depends on satisfaction “that it is more appropriate for the proceedings to be heard in the other court”: s 149B(1). Factors to be considered being the nature of the proceedings and the relief sought: Young v King [2016] NSWCA 282 at [15].

3. Transfer can be ordered so that these proceedings can be heard together with related proceedings, on satisfaction that there are related proceedings pending in the Land and Environment Court and that it is more appropriate for these proceedings to be heard together with the related proceedings in that Court: s 149B(2).

4. These proceeding were brought in September 2024 in pursuit of claimed unpaid development contributions of over $3 million, in breach of the Environmental and Planning and Assessment Act 1979 (NSW), in circumstances where Mr Morton, the defendant certifier, had issued an occupation certificate in relation to a large residential development at Arncliffe to Arncliffe Investments No 1 Pty Ltd. It then completed the sale of the site and entered as voluntary liquidation.

5. It is Mr Morton’s alleged breach of that Act, an applicable Regulation and the duty which he owed the Council which is pursued in these proceedings. In the Land and Environment Court it is the recovery of contributions required under that Act which are pursued, those proceedings falling within s 20(1)(e) of the Land and Environment Court Act 1979 (NSW), which could not have been pursued in this Court: s 71(1).

6. The claims are all defended, the defence in both cases resting on arguments about the expiry of a relevant Ministerial Direction. The Land and Environment Court proceedings are due soon to be listed for hearing.

7. The parties have agreed that the issues raised are in the two proceedings are intertwined in such a way that they are related for the purpose of s 149B and that it is more appropriate for them both to be heard in the Land and Environment Court

8. I am satisfied that may be accepted, the specialist expertise of the Land and Environment Court in matters arising under the Environmental and Planning and Assessment Act having been repeatedly recognised.

9. The parties have also agreed that this case raising as it does questions about the duties of a certifier under that Act and the applicable regulations and Ministerial Direction, which are also raised in the Land and Environment proceedings and are anterior to the determination of the certifier’s duty of care, alleged breaches of which are used in these proceedings, that it is most appropriate for these proceedings to be transferred to the Land and Environment Court, so that the related proceedings can be heard together.

10. I am satisfied in all these circumstances that this must also be accepted. The agreement which the parties have reached is not only open, but accords with the obligations imposed upon them by s 56 of the Civil Procedure Act*,* in respect of the overriding purpose of the legislative scheme there specified, the just, quick and cheap resolution of the real issues in the proceedings.

11. That supports the conclusion which I have reached, that the Court’s transfer power has been enlivened and should be exercised, that being what is just in the circumstances which have arisen to be considered in respect of the hearing of the related proceedings on foot in the two Courts.

Orders

12. For these I make the orders which the parties have agreed by consent, namely:

13. Pursuant to s 149B(2) of the Civil Procedure Act 2005 (NSW), that these proceedings be transferred to the Land and Environment Court and be heard together with proceedings number 2024/00338108 in that Court.

14. Each party bear its own costs of the Motion.

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Amendments

26 May 2025

Order (1) on the cover page and the Order at 12(1) has the "B" omitted from s 149(2). The correct section now reads "s 149B(2)".