Sydney Advantage Investments Pty Ltd v Deep River Group Pty Ltd T/as Precise Planning

Land and Environment Court (NSW)|2018-09-19|Before: Moore J, Mr P

Introduction

There is no doubt that there is a discretion to extend the time for commencing proceedings provided for in r 59.10(2). In considering whether to grant such an extension, r 59.10(3) sets out four matters which should be taken into account in considering whether or not to grant an extension. Those matters, in r 59.10(3)(a) to (d) were earlier set out. The list is not to be regarded as exhaustive.
In Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146, an extempore decision given by Pepper J on the day I heard this application for extension, her Honour set out the relevant principles for consideration when determining an application for an extension of time to be granted pursuant to r 59.10(2). Her Honour's summary was in the following terms (at [34]: They may be summarised as follows: (a) the applicant bears the onus of establishing why the Court should exercise its discretion to extend time in his or her favour; (b) the factors to be considered on any application for leave to extend time are not limited to those in r 59.10 of the UCPR, but include: (i) the length of the delay; (ii) the reasons for the delay (noting that the failure to seek legal advice is not a compelling explanation); and (iii) whether the applicant has a fairly arguable case; (c) the weight to be given to relevant factors will depend upon the circumstances of the particular case and will require the Court to carry out a balancing exercise; (d) the question of potential prejudice to a party caused by the delay is a significant consideration; (e) the rule of law is strengthened by provisions such as r 59.10 of the UCPR requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced; (f) in considering r 59.10 of the UCPR, it should be borne in mind that a claimant cannot fairly be criticised for failing to take action before he or she knew, or by exercising reasonable diligence should have known, that there was anything to take action about (Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 at [7] and Moorebank Recyclers at [14]); (g) in considering delay in an application for extension of time the Court has frequently made a distinction as to the unreasonableness of the delay on the basis of intention. There is a difference between intentional or contumelious delay (Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [56], that is, delay caused by "deliberate inaction" (IPM at [82]) or "an intentional decision to delay" (Moorebank Recyclers at [52]), and delay which is merely the result of a "bona fide mistake or blunder" (Tomko at [56]), mere "oversight" (IPM at [82]), or caused by seeking to clarify rights and trying to solve the matter without litigation (Yves Deyris at [13]); and (h) there is danger in placing too much emphasis on the prospects of success. To do so invites the parties to treat the application as a dress rehearsal for the full appeal (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). It is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case. It is not necessary nor appropriate to demonstrate in any detail the prospects of success (Tomko at [58]).

SAI has a fairly arguable case

I have, earlier, set out the basis upon which I am satisfied I can conclude that SAI has a fairly arguable case based on the matters set out in the initiating Summons.

Delay

I am satisfied on the basis of the uncontradicted evidence given by Mr Sartor that there was nothing unreasonable in him not becoming aware, in a definite sense, about potential difficulties arising from the structure which MSC had erected until he received the relevant confirmation from the surveyor on 19 February 2018. On the basis of his evidence, the fact that he was otherwise significantly engaged in legal and financial matters, between the completion of the MSC structure in October 2017 and his site visit in early February 2018, does not constitute any unreasonable delay on behalf of SAI (particularly when, on Mr Sartor's evidence, he was the primary active one of the two directors of SAI).
I also do not consider that the delay between February 2018 and the filing of the Summons commencing these proceedings should be regarded as being in any way disentitling, given that the chronology in Exhibit B (not contested by MSC) clearly demonstrates considerable activity on behalf of SAI with MSC to seek to resolve this matter without the necessity for litigation.

Prejudice

The primary basis upon which Mr Nash resisted the extension of time (in addition to the matters which I have already addressed) was the substantial prejudice which was said would arise to MSC if SAI was to be granted the extension of time which it seeks.
Mr Greene's affidavit of 6 September 2018 sets out, from (25) to (34), the prejudice which is said will arise to MSC and its component individuals or entities if SAI was permitted to run its pleaded case and if it was to be successful in it.
These impacts are said to arise, not only as a consequence of the some $10 million already expended by MSC on its development, but also as a consequence of the fact that a number of the individuals or entities comprising MSC have entered into contracts for sale of allotments within the portion of the MSC subdivision attributable to the relevant individual or entity.
Each of the matters pressed on the basis of prejudice (as strongly argued by Mr Nash) are matters of prejudice that are said to arise, at least in major part, as a consequence of the uncertainty which will arise if the extension of time is granted and proceedings continue to adjudication.
These prejudices, however, need to be balanced against what I am satisfied appear to be the potential significant detriment to SAI if it is not permitted to seek to challenge MSC's activities where, on the basis of the provision by SAI to MSC of its proposed drainage arrangements in September 2016, coupled with the express notation, earlier set out, put on the MSC construction certificate plan at the time of its approval by the Council on 24 May 2017, some elements of the risk to MSC might fairly be arguable to be self-inflicted (a matter I do not need to determine).
However, taken overall, it seems to me that in the balancing of the competing potential prejudices, the scales are tipped slightly in favour of SAI with the consequence that the orders I proposed on 19 September 2018 were those appropriate in the circumstances in order to ensure that SAI would have the opportunity to test the matters of concern raised by it in these proceedings.

Orders

The orders of the Court, therefore, are: 1. Leave is granted pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 extending the time until 9 July 2018 for the Applicant to commence these proceedings; and 2. The Applicant is granted leave to rely upon the Amended Summons which was annexed to the Applicant's Notice of Motion.

Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2018

Judgment

In Thirlmere, a semi-rural area some 70 kilometres south-west of the Sydney CBD, Sydney Advantage Investments Pty Ltd (SAI) has development approval from Wollondilly Shire Council (the Council) for a large residential subdivision. The Second, Third, Fourth and Fifth Respondents (collectively MSC) also have development consent from the Council for a residential subdivision in Thirlmere. MSC's subdivision is upslope (and, hence, upstream in a stormwater drainage sense) from SAI's subdivision.
As a consequence of a dispute between SAI and MSC concerning drainage and disposal arrangements for stormwater from the MSC subdivision, SAI filed, on 9 July 2018, a Summons in this Court challenging the validity of MSC's development consent. As MSC's development consent was granted by the Council on 30 June 2016, SAI's proceedings have been filed a little over two years after the granting of that development consent.
Because, amongst other matters sought by SAI, is a declaration that MSC's development consent is invalid and that this is a jurisdictional point, SAI adopts the initial position consistent with the decision of the High Court in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 (Kirk) that no statutory time bar can act to prevent its commencement of proceedings. This, it is submitted by SAI, is a complete answer to any complaint by MSC about the timing of the commencement of proceedings. However, in a cautionary fashion, SAI filed a Notice of Motion on 28 August 2018 seeking the following orders: 1. If leave be required, that pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005, the Applicant be granted leave to extend the time of commencement of these proceedings to 9 July 2018, the date of filing these proceedings; and 2. The Applicant be granted leave to rely upon the Amended Summons (which was annexed to the Notice of Motion).
The Notice of Motion was heard by me on 19 September 2018. At the conclusion of the proceedings, I indicated to the parties that the orders of the court would be: 1. Leave is granted pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 extending the time until 9 July 2018 for the Applicant to commence these proceedings; and 2. The Applicant is granted leave to rely upon the Amended Summons which was annexed to the Applicant's Notice of Motion.
I also indicated that I proposed that costs of the motion be costs in the cause but that the parties would have the opportunity, if they wished to do so, to be heard on the question of costs at the time of publication of my reasons for making the orders.
I indicated that I would publish my reasons on 21 September 2018 and these are those reasons.

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