Duke Investments Trust Pty Ltd v Leichhardt Municipal Council

CITATION : Duke Investments Trust Pty Ltd v Leichhardt Municipal Council [2000] NSWLEC 14 APPLICANT: Duke Investments Trust Pty Ltd PARTIES : RESPONDENT: Leichhardt Municipal Council FILE NUMBER(S) : 10238 of 1999 CORAM: Talbot J Development Application :- incorrect description of applicant KEY ISSUES: Development Application:- notification - substantial compliance Amendment of Class 1 Application to correct name of party Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 s 39 LEGISLATION CITED: Environmental Planning and Assessment Regulation 1994 reg 48A Supreme Court Rules 1970 Pt 8 r 8, Pt 20 r 1(3) Land and Environment Court Rules 1996 Pt 10 r 1(3), Pt 10 r 2(3) CSR Limited trading as The Readymix Group v Yarrowlumla Shire Council and Anor (unreported 40054 of 1985 2 August 1985); RKO Pictures Inc v Cannon Screen Entertainment Pty Ltd [1990] BCLC 364; CASES CITED: Lazard Bros and Co v Midland Bank Ltd [1933] AC 289; Tetlow v Orela Limited [1920] 2 Ch 24; Alexander Mountain and Co v Rumery Limited [1948] 2 KB 436; McInnes and Others v Wingecarribee Shire Council and Anor (1987) 64 LGRA 137 DATES OF HEARING: 24/11/99 EX TEMPORE 11/24/1999 JUDGMENT DATE :

27. Mr Bingham has referred the Court to a decision of the Queen's Bench Division by Schiemann J in RKO Pictures Incorporated v Cannon Screen Entertainment Pty Limited reported in Butterworth's Company Law Cases [1990] BCLC 364. That case conveniently summarises a number of authorities referred to by both parties in the course of argument. The particular circumstances in RKO Pictures related to a case where solicitors had instituted the proceedings in the name of a party to a contract which had ceased to exist as a separate entity. This ceasing as a consequence of a merger was unknown to the solicitors, and, it appears, to the defendants.

29. Reference was made in the course of the judgment by Shearman J to Lazard Bros and Co v Midland Bank Ltd [1933] AC 289, where proceedings were started against a Russian bank which had ceased to exist some years before. In that case the Court treated the proceedings as a nullity. Shearman J was able to distinguish that case, as he was able to do with others which were referred to such as Tetlow v Orela Limited [1920] 2 Ch 24 where after delivery of the statement of claim and defence it was discovered the plaintiff had been dead for nearly eight years. And in that case the Court could not justify creating a plaintiff in an action for the first time.