Greater Taree City Council v Murowski Investments Pty Limited - [2010] NSWLEC 258 - NSWLEC 2010 case summary — Zoe

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Greater Taree City Council v Murowski Investments Pty Limited

[2010] NSWLEC 258

Land and Environment Court (NSW)|2010-12-10|Before: Pepper J, Mr P, Mr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2010-12-10

Before

Pepper J, Mr P, Mr J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

Introduction 1 HER HONOUR: Initially this matter came before the Court on a notice of motion filed by the applicant, Greater Taree City Council ("the council"), seeking to strike out pursuant to r 14.28(1) of the Uniform Civil Procedure Rules 2005 ("UCPR") certain paragraphs of the respondents' points of defence and cross claim. 2 However, when the notice of motion came to be determined the respondents sought leave to file in Court a notice of motion seeking leave to amend their points of defence and cross claim as attached to that motion. 3 Leave was granted to file the notice of motion in Court. However, the council submitted that leave to amend ought not be granted by the Court because the amended points of defence and cross claim continued to contain deficiencies. 4 This judgment is a determination of the two notices of motion, in respect of which all parties have been partially successful. Nature of the Dispute Between the Parties 5 The pleadings as filed revealed the following dispute between the parties. On 21 January 2003, the council granted development consent 1074/2002D ("the consent") for the subdivision of the respondents' property into eight lots. Condition 9 of the consent provided that an existing Crown road, Sunshine Road, was to be upgraded. The road was to be designed in accordance with the council's AUSPEC No. 1 Design Manual to the standard of the Rural Subdivision Road, Local Miner, and approved plans. 6 On 10 October 2003, construction certificate 1074/2002D ("the construction certificate") was issued in relation to the consent. 7 On 11 August 2004, the council issued a subdivision certificate in relation to the consent. 8 In September 2004 the respondents subdivided their property into eight lots purportedly pursuant to the consent.

[2]

[4]

(b) second, the respondents state that, in effect, when the council, as consent authority, and later upon its appointment as principal certifying authority for the subdivision work, issued the construction certificate and the subdivision certificate, it represented to the respondents that the road had been built in conformity with the consent and that the conditions of the consent, including condition 9, had been complied with. 13 The council cannot now assert a breach of the consent by reason of any stated failure to satisfactorily complete the road works. To the extent that it seeks to do so, it is estopped. 14 The respondents in their cross claim seek a declaration that the council had breached ss 109E(3)(e) and 109J(1)(c) of the EPAA to the extent that the subdivision was not carried out in accordance with the consent. Further, if the subdivision was not carried out in accordance with the consent as alleged, then the respondents seek an order that they not be required to submit to any relief, or comply with any order of the Court, unless and until the council pays or contributes towards the cost of it having to do so. Proposed Amended Points of Defence and Cross Claim 15 The proposed amended pleadings by the respondents did not seek to amplify or reduce the issues raised in the currently filed pleadings in any material way. Rather, the amendments sought to respond to defects previously identified by the council. In particular, the pleaded estoppel and the asserted breaches of ss 109E(3)(e) and 109J(1)(c) of the EPAA were pleaded with greater precision. Statutory Framework 16 As at the date which the subdivision was permitted, ss 109E(3)(e) and 109J(1)(c) of the EPAA stated as follows: 109E Principal certifying authorities (3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied: (e) that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate. 109J Restriction on issue of subdivision certificates (1) A subdivision certificate must not be issued for a subdivision unless the certifying authority is satisfied of each of the following: (c) in the case of subdivision for which a development consent has been granted, that the applicant has complied with all conditions of the consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision, 17 Rule 14.28(1) of the UCPR states as follows: 14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. 18 Rule 14.1 of the UCPR states, "this Part applies to proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed" (emphasis added). 19 Schedule 1 of the UCPR states that proceedings in Class 4 of this Court's jurisdiction incorporate by way of practice and procedure all of the provisions of the Civil Procedure Act 2005 ("the CPA") and the UCPR. Having said this, Sch 2 of the UCPR effectively states that the local rules of this Court prevail over those enacted in the UCPR. 20 The Land and Environment Court Rules 1996 were repealed by the passage of the Land and Environment Court Rules 2007 ("the 2007 Rules"). The 2007 Rules were enacted following the enactment of the UCPR to reflect the adoption in this Court of those harmonised civil procedure rules. 21 Rule 4.1 of the 2007 Rules states "this Part applies to proceedings in Class 4 of the Court's jurisdiction." 22 The Note to this rule provides as follows: Note : Proceedings to which this Part applies are subject to the provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 . That Act and those rules refer to an applicant under these rules as a plaintiff and a respondent under these rules as a defendant. Under Part 4 of the Uniform Civil Procedure Rules 2005 , proceedings to which this Part applies are to be commenced by statement of claim or by summons. 23 The last sentence of the Note appears to suggest that proceedings to which Pt 4 of the 2007 Rules apply may be commenced only by statement of claim or by summons. However, proceedings in Class 4 of the Court's jurisdiction are commenced not by statement of claim but are initiated by points of claim, together with a summons. The significance of this will be explained below. Defects in the Proposed Amended Pleadings 24 The council complained about four defects in the proposed amended points of defence and cross claim that sought to be filed by the respondents. Some, but not all, of these defects currently exist in the points of defence and cross claim as filed.

[5]

25 First, the council submits that the respondents cannot simply "not admit" paragraph 11 of the points of claim filed 26 August 2010, in paragraph 11 of the defence. Paragraph 11 of the points of claim pleads that the subdivision was not carried out in accordance with the consent because of the failure by the respondents to upgrade Sunshine Road in accordance with the conditions attached to that consent. 26 The council submits that it should be told by the respondents whether or not paragraph 11 of the points of claim is incorrect by way of denial or whether the respondents are simply putting the council to strict proof in respect of the alleged failure to comply with the conditions of consent in relation to the construction of the road. 27 In reply the respondents submit that there is no practical difference between a denial of paragraph 11 of the points of claim and a refusal to admit. Moreover, they submit that as pleaded, there is nothing defective about the refusal to admit the allegation and that this would not provide a basis for striking out this paragraph of the proposed amended points of defence. 28 I agree. Provision for a non-admission is made in r 14.26 of the UCPR. It is a perfectly permissible traversal of an allegation. A statement of non-admission commonly indicates that the disputed fact is not within the party's knowledge. Clearly enough where disputed facts are within a party's knowledge then a denial is preferable. Further, because of the content of the verification required by r 14.23 of the UCPR, a respondent ought properly admit facts as to which there is no real dispute and if the fact alleged is known to be true, it is improper for a respondent to swear an affidavit verifying a defence which contains a statement of non-admission of that fact. However, the application of these principles does not, in the present case, permit the Court to strike out the non-admission of fact contained in paragraph 11 of the defence pursuant to r 14.28(1) of the UCPR. 29 Second, the council submits that the estoppel pleaded in paragraph 14A of the proposed amended defence is defective insofar as the essential elements of estoppel, namely, representation, reliance and detriment, have not been properly (or at all) pleaded. In particular, the council submits that the specific representations by the council and the respondents' reliance on those specific representations must be pleaded in order for the council to know the case it must meet. Further, the council submits that there has been no articulation of the alleged detriment that the respondents have purportedly suffered which would entitle them to rely upon any estoppel. 30 In response, the respondents submit: (a) that this Court is not a court of strict pleading and that, in any event, it is not clear if r 14.28 of the UCPR applies to proceedings filed in Class 4 of the Court's jurisdiction because they are not commenced by a "statement of claim" but by points of claim;

[13]

43 However, while criticism may be made of the failure of the respondents to properly particularise the preconditions required by the consent to be met and the basis upon which it is asserted that the council could not be satisfied that the preconditions had been met, in my view, in this regard sufficient information is contained within paragraph 17a that I am not inclined to refuse leave to amend the cross claim to exclude this allegation. Whilst inelegantly drawn, a reasonable reading of paragraph 17a of the proposed amended cross claim reveals that the precondition referred to is condition 9 of the consent and the very matters about which the council now complains in respect of the breach of that condition are the same matters founding, the respondents in effect plead, its lack of satisfaction. 44 Therefore leave is granted to amend the cross claim by the insertion of proposed paragraph 17a. 45 Fourth, the council submits that paragraph 18 as currently framed does not articulate the basis upon which the respondents are entitled to an order that the council pay or contribute towards the respondents' costs of acceding to the relief, or complying with any orders that are made by the Court, assuming that the council is successful. 46 The respondents submit that paragraph 18 must be read in conjunction with paragraph 17 and that once this occurs, the basis upon which they are entitled to the relief claimed is revealed. That is to say, paragraph 18 of the proposed amended cross claim does not stand as a separate proposition. 47 I do not agree. As currently framed it does appear to stand alone. Furthermore, in my opinion, the council is entitled to know the legal basis upon which the right to relief is framed. The issue is not unimportant given the limited jurisdiction of this Court to provide monetary relief. 48 Thus as currently framed, the relief sought in paragraph 18 is inadequately pleaded and ought to be struck out. Leave to Replead 49 With the exception of paragraph 17b of the proposed amended cross claim, while the respondents did not accept the criticisms levelled at their pleadings, they nevertheless accepted, that if found to be wanting by the Court that they would be amenable to an order permitting them to redraft the proposed amended points of defence and cross claim. 50 This suggested course was agreed to by the council and prudently so given that it facilitates the overriding purpose of the "just, quick and cheap resolution of the real issues in the proceedings" (s 56 of the CPA).