Wheeldon v Woollahra Municipal Council

Catchwords: CIVIL PROCEDURE — Notice of Motion — Application for joinder — Seeking to join after judgment has been delivered — Jurisdictional error — Restrictive covenants — Application to set aside judgment of Commissioner — Application for a stay

Legislation Cited: Civil Procedure Act 1995 (NSW) ss 13, 58, 67
Environmental Planning and Assessment Act 1979 (NSW) ss 3.16, 8.15, s 75W (repealed)
Land and Environment Court Act 1979 (NSW) ss 34, 34AA, 56A
Supreme Court Act (NSW) s 69
Uniform Civil Procedure Rules 2005 r 6.24, 36.15, 36.16
Woollahra Local Environmental Plan 2014 cl 1.9A

Cases Cited: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112
Coshott & Anor v Ludwig (1997) 8 BPR 15,519
Cumerlong Holdings v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27
Dranichnikov v Minister for Immigrations and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
John Alexander’s Clubs Pty Ltd & Anor v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club & Ors (2010) 241 CLR 1; [2010] HCA 19
JPMorgan Chase Bank, National Association v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31
Mahogany Ridge Developments Pty Ltd v Port Stephens Council (2004) 135 LGERA 60; [2004] NSWLEC 555
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Morrison Design Partnership Pty Ltd v North Sydney Council and Director General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Vandervell Trustees Limited v White [1971] AC 912
Wheeldon v Woollahra Municipal Council [2025] NSWLEC 1176

Texts Cited: Woollahra Development Control Plan 2015

Category: Principal judgment

Parties: Susan Wheeldon (Applicant) (First Respondent on Notices of Motion)
Woollahra Municipal Council (Respondent) (Second Respondent on Notices of Motion)
Sascha Callaghan (First Applicant on Notices of Motion)
Yuanli Zheng (Second Applicant on Notices of Motion)
Rui Luo (Third Applicant on Notices of Motion)
Tim Allerton (Fourth Applicant on Notices of Motion)
Stacy Allerton (Fifth Applicant on Notices of Motion)

Representation: Counsel:
T Roberstson SC (Joinder Applicants) (Applicants on Notices of Motion)
H Irish SC (Applicant) (First Respondent on Notices of Motion)
C Koikas; L Sims (Respondent) (Second Respondent on Notices of Motion)
Solicitors:
Project Lawyers (Joinder Applicants) (Applicants on Notices of Motion)
Boskovitz Lawyers (Applicant) (First Respondent on Notices of Motion)
Woollahra Municipal Council (Respondent) (Second Respondent on Notices of Motion)

File Number(s): 2024/00364616

Publication restriction: Nil

JUDGMENT

Motions before the Court

1. Before the Court are two notices of motion relating to a Class 1 Development Appeal (Class 1 Appeal). The Class 1 Appeal was brought by the Substantive Applicant (Wheeldon) against the Substantive Respondent, Woollahra Municipal Council (Council), following the Council’s refusal on 19 September 2024 of Wheeldon’s development application (DA) to demolish an existing house and garage and construct a new dwelling, swimming pool and landscaping on the property known as 11A Burrabirra Avenue, Vaucluse (the P****roperty).

2. A conciliation conference for the Class 1 Appeal was conducted before Commissioner O’Neill on 6 March 2025. On that day, Wheeldon and the Council reached an agreement as to the terms of the decision in the Class 1 Appeal, whereby they agreed that the appeal should be upheld, and an amended development application (amended DA), lodged by Wheeldon, be determined by a grant of consent subject to conditions.

3. On 31 March 2025, Commissioner O’Neill’s decision was handed down, with the Commissioner considering that the agreement reached was one that the Court could have made in the proper exercise of its functions: Wheeldon v Woollahra Municipal Council [2025] NSWLEC 1176 at [11].

4. After the date that agreement was reached between Wheeldon and the Council, but before the date of the Commissioner’s decision, on 12 March 2025 a number of owners of land surrounding the Property sought to be joined to the Class 1 Appeal (Joinder Applicants). By motion filed on 12 March 2025, they sought joinder pursuant to s 8.15(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). A “stay of proceedings" was also sought pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (CPA). An amended notice of motion was filed on 17 March 2025 (Amended Joinder Motion) which relevantly sought:

(a) an order for joinder under r 6.24(1) of the Uniform Civil Procedure Rules 2005 (UCPR), and alternatively under s 8.15(2) EP&A Act; (b) to have the proceedings relisted before Commissioner O’Neill; and (c) a stay of the proceedings “until the hearing of the relisted proceedings” before Commissioner O'Neill.

5. On 7 April 2025, after the Court’s decision and orders in the Class 1 Appeal were handed down on 31 March 2025 (which for reasons explained below occurred prior to the hearing of the Amended Joinder Motion), the Joinder Applicants filed a second motion (the Stay**/**Set Aside Motion), in which they sought orders that:

(a) the Class 1 Appeal be stayed nunc pro tunc from 20 March 2025 until the Amended Joinder Motion is heard; and (b) the judgment and orders of the Court on 31 March 2025 be set aside.

6. Both motions were listed before me and heard on 24 and 28 April 2025. Mr Robertson SC appeared for the Joinder Applicants, and Ms Irish of Counsel appeared for Wheeldon. Mr Koikas and Ms Sims of Counsel appeared for the Council, but it did not take an active role in the arguments concerning the motions, save for the reading of one affidavit.

7. It should be stated at the outset that it seems unusual that a motion for joinder would be heard by the Court in circumstances where judgment in those proceedings has already been delivered. As outlined in more detail below, orders providing for the filing and service of evidence in the Amended Joinder Motion were made on 20 March 2025 by the Senior Deputy Registrar. The Amended Joinder Motion was listed for hearing that day for 24 April 2025, before a Judge. And yet judgment was delivered in the Class 1 Appeal prior to this hearing date, on 31 March 2025. Every aspect of why this happened is not entirely clear. Nevertheless, for the reasons outlined below, in my view both the Amended Joinder Motion and the Stay/Set Aside Motion should be dismissed.

Factual Background

8. The Property is burdened by a number of private covenants. Covenant K793523 burdens the Property and benefits the properties 64 Hopetoun Avenue Vaucluse (owned by the Second and Third Joinder Applicants) and 66 Hopetoun Avenue Vaucluse (owned by the Fourth and Fifth Joinder Applicants). Amongst other things, this private covenant imposes the following restrictions on the Property:

(a) no more than one main building shall be erected on the Property; (b) no building, structure or tree shall be higher than 156 feet as related to standard datum; and (c) no part of any building on the Property shall be distanced less than 20 feet from the northwest boundary of the Property.

9. The Property is also burdened by Covenant A768286 which benefits the properties owned by the Second, Third, Fourth and Fifth Joinder Applicants, and also the property known as 15 Burrabirra Avenue, Vaucluse, which is owned by the First Joinder Applicant. This Covenant also poses a restriction that only one house shall be erected on the Property, as well as restrictions in relation to building materials and use of any building on the site. A further private Covenant (A808252) benefits each property owned by the Joinder Applicants, and imposes similar restrictions on the Property as Covenant A768286. Dealing L451444 subsequently modified A808252, and imposed the height and setback restrictions referred to in relation to Covenant K793523.

10. There were two other covenants that burdened the Property (L422953 and L422954), however these were released by Council shortly prior to reaching agreement with Wheeldon at the conciliation conference on 6 March 2025. I will refer to all of the covenants collectively as “the Covenants”.

11. While it is discussed in more detail below, it can be noted now that cl 1.9A of the Woollahra Local Environmental Plan 2014 (WLEP) is in the following terms:

1.9A S****uspension of covenants, agreements and instruments

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with the consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

12. It was not in issue in the arguments concerning the two notices of motion that the Covenants are of the kind contemplated by cl 1.9A of the WLEP (see also s 3.16(2) EP&A Act).

13. After Wheeldon lodged her DA on 29 June 2023, each of the Joinder Applicants made submissions to the Council opposing a grant of consent. [1] Each objection raised (amongst other matters) impacts on views; privacy issues; and issues concerning the bulk and scale of the DA. The Covenants were also brought to the attention of the Council by the Joinder Applicants, including the restrictions therein, and that the DA would exceed the height restrictions contained in them.

14. The DA was refused by Council on 19 September 2024. Amongst other matters, the grounds for refusal included fears of view loss; privacy impacts; bulk and scale of the proposed development; and nonfulfillment of objectives of both the WLEP and the Woollahra Development Control Plan 2015 (WDCP).

15. Wheeldon’s Class 1 Appeal was filed on 2 October 2024. A s 34AA conciliation conference was held on 6 March 2025. Shortly prior to the conciliation conference (which was held on the Property but involved the Commissioner attending the properties of each of the Joinder Applicants and hearing verbal submissions of objections from them) Wheeldon provided amended plans in respect to her proposed development (amended DA) to the Council, which were also provided to the Joinder Applicants on 5 March 2025. A joint expert report of two town planners dated 25 February 2025 (J****oint s 34****AA Expert R****eport) was filed with the Court, in which the experts express certain opinions concerning the matters that were considered relevant to the refusal of the original DA. A view impact analysis (prepared by AE Design Partnership Pty Ltd) forms part of the Joint s 34AA Expert Report. A number of opinions expressed in the view impact analysis report relate to the lessening of view loss from the Joinder Applicants’ properties as a result of the amended DA plans.

16. Also on 6 March 2025, Wheeldon and the Council reached a s 34(3) agreement. As outlined above, the terms of the agreement were for the appeal to be upheld, and for the amended DA to be determined by a grant of consent. There is no contest in relation to the two motions before me that the agreement was a decision that the Court could have made in the proper exercise of its functions: see s 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act).

17. On 12 March 2025, six days after Wheeldon and the Council had reached agreement at the s 34AA conciliation, the Joinder Applicants filed their notice of motion seeking an order that they be joined to the proceedings pursuant to s 8.15(2) of the EP*&*A Act, and seeking a stay of the proceedings. This motion was supported by an affidavit of Charlene (Chujing) Cai dated 12 March 2025 (Cai affidavit – discussed below). On 17 March 2025, the Amended Joinder Motion was filed.

18. On 20 March 2025, the matter was listed before the Senior Deputy Registrar in her notice of motion list. Prior to the matter being called before the Senior Deputy Registrar, Wheeldon, the Council, and the Joinder Applicants had reached agreement on the terms of Short Minutes of Order. The Short Minutes were relevantly in the following form:

(1) That leave is granted to file the amended Notice of Motion (Motion) dated 17 March 2025.

(2) That the determination of the substantive proceedings 2024/00364616 be stayed until the motion is heard and determined.

(3) The Motion is listed for hearing before a judge of the Land and Environment Court on _ 2025 with an estimate of _ hours.

19. The Short Minutes also provided for a timetable for the filing of evidence by the parties. Ms H Irish appeared for Wheeldon, and Ms M Parrino, the solicitor for the Joinder Applicants, appeared for them.

20. When the matter was called on before the Senior Deputy Registrar, the transcript reveals the following relevant exchange:

Senior Deputy Registrar: …Just looking at your orders, one of the reasons that this motion needs to get heard before a judge is order 2 sought in the notice of motion. I see that you are seeking order 2 of the short minutes being order 2 of the notice of motion. That is not an order that I can make. It will need to be heard as part of the notice of motion before a judge.

Parino [sic]: Registrar, I’d actually checked if you’d had the power but in any event we’re happy to be before a judge.

Irish: Registrar, we’re happy to have that be a note that the applicant in the substantive proceedings is prepared to accept that there be no determination that the status quo remain as it is, pending the relief in the motion being argued. That was the underlying purpose of that direction.

Senior Deputy Registrar: I’m happy to make that note. Yes, 24 April is available for a charge [sic]. I’m striking out order 2 and not hearing any objection to the proposed note by the applicant. So, Ms Irish, can you give me the wording of the proposed note?

Irish: That the parties agree to be inserted before the existing wiring [sic] of order 2.

Senior Deputy Registrar: All I can do is note that that’s what the parties agree, but as I said, I’m not prepared to order it. That order sought in a motion will be dealt with when the motion is heard. Right, and the timetable otherwise is fine. An estimate of, did you say half a day?

Parino [sic]: Yes registrar.

Senior Deputy Registrar: I’ll add that in. I list the notice of motion as amended filed 17 March 2025 for hearing before a judge on 24 April 2025 in Court at 10am, estimate of half a day and I make orders in accordance with the short minutes of order as amended and the note as agreed between the parties...

21. The first thing to note about the transcript is that the reference to Order 2 in the Short Minutes is clearly a reference to the proposed direction that “determination of the substantive proceedings 2024/00364616 be stayed until the Motion is heard and determined”.

22. However, it is unclear whether the reference to Order 2 in the Notice of Motion refers to Order 2 in the original Notice of Motion (where a stay is sought) or Order 2 in the Amended Notice of Motion (seeking a relisting before Commissioner O’Neil). The Amended Notice of Motion, as opposed to the original, was presumably before the Senior Deputy Registrar. However, it seems the Senior Deputy Registrar was referring to the stay order in the original notice of motion by virtue of comparing it to Order 2 in the Short Minutes of Order (which also relate to a stay).

23. In relation to the Senior Deputy Registrar’s observation that Order 2 of the Short Minutes was not an order that she could make, this seems to be a misunderstanding of her powers (discussed later below). The Senior Deputy Registrar at least had power delegated to her to make the consent order to stay the Class 1 Appeal (a matter agreed between the parties at the hearing of the Notices of Motion before me: see T 12.35-40; T13.23-26).

24. In any event, all parties including the Joinder Applicants were content that rather than the Court making the stay order sought in Order 2 of the Short Minutes, the Court would merely note that the parties had agreed this between themselves, and that the hearing of the Amended Joinder Motion (including the issue of a stay) would be listed before a Judge on 24 April 2025. The Short Minutes of Order made by the Senior Deputy Registrar on 20 March 2025 therefore did not include the proposed Order 2 of the Short Minutes, which she crossed out (a copy of the orders made with relevant dates inserted is annexure F to the affidavit of Anthony Boskovitz dated 15 April 2025 (the Second Boskovitz Affidavit)).

25. Although a timetable had been put in place concerning the filing and service of evidence and submissions for the Amended Joinder Motion, which was now listed for hearing before a Judge on 24 April 2025, the Class 1 Appeal was listed for judgment at 10:30am on 25 March 2025. Mr Boskovitz (Wheeldon’s solicitor) was notified of this in an email from the Court on 21 March 2025. As a consequence, he sent an email to the Registrar (copied to all relevant parties) dated 22 March 2025 which was relevantly in the following terms:

“Dear Registrar

…There is a current joinder application.

The parties, by agreement, agreed for the substantive proceedings to be stayed pending the determination of the joinder.

… On the basis of the above, we consider it is appropriate that the judgment not be handed down until the determination of the joinder motion.”

26. Ms Parrino (for the Joinder Applicants) followed this email up with one of her own which was sent to the Registrar on 24 March 2025, which reiterated Mr Boskovitz’s view that “it is appropriate that the judgment not be handed down until the determination of the joinder motion.” [2]

27. Later on the same day, Mr Boskovitz received a notice from the Court indicating that the judgment for 25 March 2025 had been vacated.

28. For reasons that are not clear, the Court relisted the matter for judgment on 31 March 2025 at 10:30am. Mr Boskovitz (but not the legal representatives for the other parties) was notified of this listing by email dated Friday 28 March 2025.

29. Mr Boskovitz did not read this email concerning the relisting until the morning of 31 March 2025. He promptly sent an email to the Court on that morning (at 10:15am) which is relevantly in the following terms:

“… It is noted that there is a joinder application on foot and there is a note made on the court file as part of the orders made on 20 March 2025 in respect of the same which stated:

“the Court notes that the parties agree that determination of the substantive proceedings be stayed until the Notice of Motion is heard.”

The Applicant seek an urgent case management conference to understand why this matter has now been listed for judgment twice, noting the notation made on the file previously.” [3]

30. At 10:30am on 31 March 2025, the Senior Deputy Registrar handed down the Commissioner’s judgment. Mr Boskovitz appeared via telephone link. The transcript indicates that he tried without success to make a statement or submission to the Court before judgment was delivered. It is not precisely clear why the Senior Deputy Registrar did not allow Mr Boskovitz to address the Court (the clear inference being that any submission from him would have been consistent with his email to the Court of that morning) other than that it would appear that the Senior Deputy Registrar felt that the matter had been listed only for the purpose of handing down the Court’s decision, and nothing else.

31. As stated above, the Commissioner was satisfied on the evidence before her that the agreement Wheeldon and the Council had reached on 6 March 2025 was a decision that the Court could have made in the proper exercise of its functions, and she therefore upheld the appeal and ordered that the amended DA be determined with a grant of consent subject to conditions.

32. By email dated 31 March 2025, Mr Boskovitz notified Ms Parrino that the Court had delivered judgment that morning. Ms Parrino responded with a letter dated 1 April 2025 in which she sought Wheeldon’s consent to an order that the judgment be set aside pursuant to either UCPR r 36.16(1), 36.16(3A), or 36.15. [4] Mr Boskovitz responded with a letter indicating (amongst other things) that his client did not consent to such an order.

33. On 7 April 2025, the Joinder Applicants filed the Stay/Set Aside Motion.

34. The Amended Joinder Motion and the Stay/Set Aside Motion were heard before me on 24 and 28 April 2025. Late on the second day of the hearing, Mr Robertson SC sought leave to amend the date in Order 1 of the Stay/Set Aside Motion from 20 March 2025 to 5 March 2025. That matter is addressed by me below as part of the resolution of the two notices of motion.

Evidence

35. As I was told that most of the evidence filed in support of the Amended Joinder Motion would be relevant to the Stay/Set Aside Motion, I directed that evidence in one motion be evidence in the other.

36. The following affidavits were read for the Joinder Applicants:

(a) Affidavit of Charlene (Chunjing) Cai dated 12 March 2025. Part of the exhibit to the Cai affidavit (Exhibit CC-1) is the Covenants, as well as a list of “reasons for joinder”. (b) Affidavit of Chris Adams dated 17 March 2025. Mr Adams is an architect, and annexed to his affidavit is a series of drawings comparing the amended DA plans and the height restrictions contained in the Covenants. (c) Affidavit of Robert Brett Daintry dated 18 March 2025. Annexure C to Daintry’s affidavit is a report of Daintry Associates dated 25 January 2024, which is described as an objection to the original DA made on behalf of the First Joinder Applicant (Callaghan). The objection addresses matters including restrictions in the Covenants; visual intrusion; privacy impacts; planning controls; desired future character; loss of views; height, bulk, and scale; and overshadowing. Annexure D to Mr Daintry’s affidavit is a report prepared by Christopher Adams of Adams Architects dated 28 August 2023, which is also a submission of objection to the Council on behalf of the First Joinder Applicant, and raises similar issues to those raised in the report of Daintry Associates. (d) Affidavit of Maysaa Parrino dated 19 March 2025 (F****irst Parrino A****ffidavit). This affidavit also addresses the Covenants. (e) Affidavit of John Aspinall dated 21 March 2025. Mr Aspinall’s affidavit annexes a “virtual visual impact report” dated 20 March 2025, in which he expresses various opinions concerning the impacts of the amended DA plans on the properties of the First, Second and Third Joinder Applicants (64 and 66 Hopetoun Avenue and 15 Burrabirra Avenue). (f) Affidavit of Yuanli (Tiffany) Zheng dated 20 March 2025. Ms Zheng is the Second Joinder Applicant and owner of 64 Hopetoun Avenue. In her affidavit she attests to the fact that she was aware of the Class 1 Appeal; did not think it would be successful; attended the s 34AA conciliation conference; was surprised by the agreement reached between the Council and Wheeldon; and was unaware she could apply to be joined to the Class 1 Application until the First Joinder Applicant (Callaghan) obtained legal advice to that effect. (g) Affidavit of Sascha Callaghan dated 20 March 2025. Ms Callaghan is the First Joinder Applicant and owner of 15 Burrabirra Avenue. In her affidavit, Ms Callaghan sets out her history of objection to the DA, confirms that she attended the conciliation conference on 6 March 2025, and indicates that she was first provided advice about seeking potential joinder to the proceedings on 10 March 2025. (h) Affidavit of Maysaa Parrino dated 7 April 2025 (S****econd Parrino A****ffidavit). In this affidavit, Ms Parrino sets out her version of the circumstances of the mention before the Senior Deputy Registrar on 20 March 2025, and the events that followed. (i) Affidavit of Maysaa Parrino dated 23 April 2025 (T****hird Parrino A****ffidavit). In this affidavit, Ms Parrino responds to certain matters raised in the Second Boskovitz Affidavit.

37. The following affidavits were read on behalf of Wheeldon:

(a) Affidavit of Anthony Boskovitz dated 18 March 2025 (F****irst Boskovitz A****ffidavit). In this affidavit Mr Boskovitz sets out the factual background to the DA, the lodging of the Class 1 Appeal, the conciliation conference, the various objections to the grant of the DA, as well as various matters that are attested to in opposition to the application for joinder. (b) Affidavit of Robert David Williamson dated 27 March 2025. In his affidavit, Mr Williamson addresses matters concerning the restrictions in the Covenants. (c) Affidavit of George Karavanas dated 27 March 2025. Mr Karavanas is a town planner and was one of the experts who prepared the Joint s 34AA Expert Report dated 25 February 2025. (d) Affidavit of Nicholas Rohan Dickson dated 27 March 2025. Mr Dickson is an architect, and his firm AE Design Partnership Pty Ltd prepared various photomontages relevant to view impacts which formed part of the Joint s 34AA Expert Report. (e) Affidavit of Anthony Boskovitz dated 15 April 2025 (S****econd Boskovitz A****ffidavit). In this affidavit, Mr Boskovitz sets out his version of the history of the Class 1 Appeal including the appearance before the Senior Deputy Registrar on 20 March 2025, and the events thereafter.

38. The Council read an affidavit of Heath Hazelton dated 19 March 2025. The sole purpose of this affidavit was to confirm extinguishment of two of the Covenants referred to above in [10].

Amended Joinder Motion

Statutory Provisions and Principles

39. It is convenient to deal with the Amended Joinder Motion first. This is at least partly because, if joinder of the Joinder Applicants is not a necessary or appropriate order to make in these proceedings (and in my view no order for joinder is appropriate) there seems to be little utility in making an order setting aside the judgment (a matter discussed more fully below).

40. The Joinder Applicants rely principally on r 6.24(1) UCPR, which is in the following terms:

6.24(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.

41. There are two circumstances in which the Court may exercise its power to join a person as a party under the rule. The first is if the Court considers the person ought to have been joined; the second is if the Court considers joinder is “necessary to the determination of all matters in dispute”: AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 (‘AQC Dartbrook*’*) at [158] per Preston CJ of LEC.

42. One link between the first circumstance (“ought to have been joined as a party”), and part of the consideration as to the second circumstance (“necessary to the determination of all matters”) is that Courts have said that the matters in dispute in the proceedings must “affect the person to be joined in some material respect, such as directly affecting their rights or interests”: AQC Dartbrook at [187]. In AQC Dartbrook, Preston CJ of LEC gave a number of such examples as follows at [187]:

“(a) where the person seeking to be joined is “able to show that some legal right enforceable by him against one of the parties to the action or some legal duty enforceable against him by one of the parties to the action will be affected by the result of the action”: Fire Auto and Marine Insurance Company v Greene [1964] 2 QB 687 at 697;

(b) where the person’s “rights against or liabilities to any party to the action in respect of the subject matter of the action [will] be directly affected by any order which may be made in the action”: Pegang Mining Co Ltd v Choong Sam at 55-56; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524; [1996] FCA 870; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd at [131];

(c) where the person to be joined “should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party”: Amon v Raphael Tuck & Sons Ltd at 380;

(d) where the determination of a dispute between two parties “will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill”: Gurtner v Circuit at 595; and

(e) where “the rules of natural justice require that a person who is to be bound by a judgment in an action brought against another party and directly liable to the plaintiff upon the judgment should be entitled to be heard in the proceedings in which the judgment is sought to be obtained”: Gurtner v Circuit at 602-603; State of Victoria v Sutton at [77].”

43. This first circumstance of joinder (“ought to have been joined”) can be seen as making an order for joinder to ensure a person can seek to protect their rights and to ensure them procedural fairness: AQC Dartbro**ok at [189] per Preston CJ at LEC.

44. In the second circumstance (“necessary to the determination of all matters in dispute”), a joinder applicant must satisfy the Court that the matters in dispute may not be effectually or completely considered and determined without them as a party. This requires a consideration of what matters are in dispute and whether those matters can be “effectively and completely determined and adjudicated upon in the absence of” the joinder applicant: Vandervell Trustees Limited v White [1971] AC 912 at 930, 936.

45. In the alternative to r 6.24(1), the Joinder Applicants rely on s 8.15(2) of the EP&A Act, which is in the following terms:

8.15(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.

46. The exercise of discretionary power pursuant to s 8.15(2)(a) concerns similar considerations to the second circumstance of r 6.24(1). The question for the Court is, would an issue in the proceedings not likely be sufficiently addressed if the joinder applicant is not joined as a party to the proceedings: Morrison Design Partnership P**ty L**td v North Sydney Council and Director General of the Department of Planning (2007) 159 LGERA 361; [2007] NSWLEC 802 (‘Morrison Design’) at [44] per Preston CJ.

47. While s 8.15(2) (including the two limbs of s 8.15(2)(b) (“interests of justice”) or (“in the public interest”)) is to be considered “beneficially as conferring a wide judicial discretion” (Mahogany Ridge Developments Pty Ltd v Port Stephens Council (2004) 135 LGERA 60; [2004] NSWLEC 555 at [21] per Bignold J), relevant but not decisive to s 8.15(2)(b) is a consideration of the s 8.15(2)(a) issue. If an applicant for joinder has had opportunities to raise concerns or make objections to a particular development application, and similar opportunities have been given to other members of the public, with the decision maker thereby given the opportunity to have meaningful assistance from the applicants for joinder or the public generally on the issues for determination, the criteria laid out in s 8.15(2)(b)(i) and (ii) are unlikely to be satisfied: Morrison Design at [48], [55]-[57].

Joinder Applicants’ Submissions

48. The Joinder Applicants submit that they enjoy the benefit of the Covenants which contain property rights, and that those rights will be “extinguished” upon the grant of the development consent. Development of the kind sought in either the original DA plans or the amended DA plans could not be carried out if the Covenants applied. [5] While cl 1.9A of the WLEP does not extinguish the Covenants or render them nought, it disapplies the height and other restrictions in them, and is therefore “a serious inroad into the property rights of the joinder applicants”. [6] In circumstances where a Court is asked to make orders, such as in this Class 1 Appeal, “directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined”. [7] Put another way, cl 1.9A was said to “hollow out” the restrictions in the Covenants if development consent is granted, which “triggered the duty” on Wheeldon to join the Joinder Applicants. [8]

49. That is, the Joinder Applicants submit that not only should the Court now join them to the Class 1 Appeal, Wheeldon had an obligation to do so. [9] It is submitted that this is no more than an aspect of procedural fairness, allowing persons whose property rights might be affected to have an opportunity to contest the potential interference of those rights. [10]

50. The submissions made by the Joinder Applicants can be seen as very much grounded in the first circumstance of r 6.24(1) (“ought to have been joined”). No detailed submission was made, at least in direct terms, that any impact the amended DA would have on the views or privacy enjoyed by the Joinder Applicants, or any consideration as to the bulk and scale of the proposed development, could not be effectively or completely determined without them as parties. Rather, the complaint was more general and expressed as being one where had the Joinder Applicants been joined, as they say they ought to have been, it “would have enabled them to participate in the conciliation as a party,” and allowed them “the valuable opportunity for negotiation and modification of the development’s impacts on the covenant rights”. [11]

Wheeldon Joinder Submissions

51. Wheeldon submits that the Covenants fall within the class of instruments caught by cl 1.9A of the WLEP. [12] This matter is not in dispute, and was also embraced by the Joinder Applicants.

52. Because of cl 1.9A, Wheeldon submits that there is no utility in joining the Joinder Applicants to the proceedings, as whatever is left of the Covenants, the restrictions within them cannot prevent the carrying out of development in accordance with a valid development consent.

53. Additionally, it seems that Wheeldon also relies on the late nature of the application to join, being after Wheeldon and the Council had reached agreement at the conciliation conference. [13]

54. As to the matters in dispute in the proceedings, Wheeldon submits that all relevant issues relating to the grant of consent have been sufficiently (in fact, extensively) raised in the Class 1 Appeal so as to not warrant an order for joinder. [14]

55. In written submissions I granted leave to be filed after the conclusion of the hearing, Wheeldon points to the fact that at the time the Joinder Motion was filed (12 March 2025), she and the Council had already reached their s 34AA conciliation conference agreement. [15] This, it is submitted, left only one issue in the Class 1 Appeal: was that agreement one the Court could make in the proper exercise of its functions?

Resolution

Timing of joinder application – issues left for determination

56. Wheeldon and the Council reached agreement concerning the outcome of the Class 1 Appeal at the s 34AA conciliation conference on 6 March 2025. The Joinder Applicants filed their notice of motion seeking joinder on 12 March 2025 (Amended Motion 17 March 2025). This does raise in my mind this question: what were the Joinder Applicants seeking to be joined to?

57. Section 34(3) of the LEC Act is in the following terms:

34(3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a) must dispose of the proceedings in accordance with the decision, and

(b) must set out in writing the terms of the decision.

(emphasis added)

58. At the point in time when agreement was reached between Wheeldon and the Council, the Court had a very limited role to play. Rather than making her own specific merits assessment of the issues in the Class 1 Appeal, the sole question for the Commissioner became this: is the decision the parties have agreed on one which could have been made in the proper exercise of the Court’s functions?

59. In her judgment in the Class 1 Appeal on 31 March 2025, this was the question the Commissioner posed. She answered in the affirmative, and hence made orders – as she was bound to – upholding the appeal and determining the amended DA by grant of consent: Wheeldon v Woollahra Municipal Council [2025] NSWLEC 1176 at [11]-[12].

60. In AQC Dartbrook, the Court of Appeal was also concerned with a matter where a joinder application was made after an agreement had been reached following a conciliation conference. This case concerned an appeal by Dartbrook Management (Dartbrook) against a decision of the Independent Planning Commission (IPC) to modify a development consent for a coal mine under the now repealed s 75W of the EP&A Act.

61. A s 34 conference in relation to the appeal commenced on 19 March 2020, and resumed on 12 October 2020, on which day an “in principle" agreement was reached, reflected later in a written agreement on 30 October 2020.

62. Some 10 days later, on 9 November 2020, Hunter Thoroughbred Breeders Association Inc (HTBA) filed a motion to be joined to the proceedings under (as here) s 8.15(2) of the EP&A Act, and r 6.24(1) of the UCPR. On 20 November 2020, the primary judge hearing the notice of motion made an order for joinder of HTBA under s 8.15(2) (but did not address r 6.24(1)). Dartbrook appealed.

63. For reasons not relevant to the Amended Joinder Motion here, the Court of Appeal (Meagher and Leeming JJA; Preston CJ of LEC) held that there was no jurisdiction to make the joinder order the primary judge did under s 8.15(2). They also held that r 6.24(1) was not a power capable of supporting joinder because “the primary judge did not consider and form an opinion of satisfaction regarding all of the requirements upon which a valid exercise of the power in r 6.24(1) depends”: AQC Dartbrook [175] per Preston CJ of LEC.

64. In the course of his judgment, Preston CJ of LEC noted that when HTBA had applied to be joined, Dartbrook and the IPC had reached a s 34 conciliation conference agreement. In respect to this, his Honour observed:

“That agreement resolved all but one of the matters in dispute in the proceedings. All of the merit considerations concerning the acceptability of the proposed modification of the development consent raised by the Minister in the statement of facts and contentions and joined between the parties, were resolved. Hence, although those merit considerations were once matters in dispute in the proceedings, they ceased to be on the parties reaching agreement under s 34(3) of the Court Act and the Court no longer was called upon to make a “determination” on these matters. The only matter in dispute in the proceedings remaining to be determined by the Court was that required by s 34(3) of whether the decision agreed between the parties was a decision the Court could have made in the proper exercise of its functions”: AQC Dartbrook at [182] per Preston CJ of LEC.

65. To similar effect in their joint judgment, Meagher and Leeming JJA stated at [9] that following the s 34 agreement being reached between Dartbrook and the IPC:

“[a]t this point, the only issue for the Court is whether the decision to which the parties have agreed is one the Court could have made in the proper exercise of its jurisdiction.”

66. Their Honours went on to say at [16]:

“… the statutory scheme reflected in s 34 is one which encourages the parties to participate in good faith to settle their dispute. If agreement is reached, then the Court’s role is very significantly circumscribed: the only issue is whether the resultant decision is one which could have been made in the proper exercise of the Court’s function.”

67. In relation to the Commissioner’s decision in this matter, no submission was made that the agreement reached between Wheeldon and the Council did not reflect a decision that the Court could make in the proper exercise of its function. In those circumstances, despite all other matters raised by the Joinder Applicants, I cannot see how granting the orders they seek in their Amended Joinder Motion would have any utility. There is no reason why they “ought” to be joined to proceedings in relation to which the sole matter the Commissioner had to resolve was whether the decision the parties had reached was a decision that she could reach. By the time the Joinder Motion was filed there was nothing left in Wheeldon’s Class 1 Appeal that could not have been entirely and completely determined without the Joinder Applicants as parties to that appeal: see Vander**vell Trustees Ltd v White at 930, 936. On the one issue left at the time the Joinder Applicants filed their motion for joinder – whether the decision of the parties and their agreement reflected a decision that the Court could properly make – they raise no issue.

68. Accordingly, I see no proper reason for the Joinder Applicants to be joined to a Class 1 Appeal where the parties to that appeal have at the time that joinder is sought already reached an agreement under s 34, being an agreement that the Court could properly make. This alone is sufficient for me to dismiss the Amended Joinder Motion. However, if I understand his argument correctly, Mr Robertson SC contends that it should not matter that the Joinder Applicants’ motion seeking joinder was filed after the time that the Council and Wheeldon reached their s 34(3) Agreement, because in his submission, Wheeldon was obliged to join the Joinder Applicants to the Class 1 Appeal prior to the conciliation conferences. [16] I disagree, but for completeness will shortly state why I would have declined to make an order for joinder even if the Joinder Applicants had filed their motion prior to the s 34 agreement being reached between Wheeldon and the Council.

No joinder even if joinder application filed before s 34 Agreement reached

69. I accept that the Joinder Applicants hold property rights under the Covenants. I also accept, on the evidence of Mr Adams in his affidavit dated 18 March 2025, that development of the kind contemplated by either the original DA or the amended DA (now the subject of both the s 34 agreement and a decision of the Court) could not be carried out if the restrictions in the Covenants (particularly as to height) were enforced or complied with.

70. I also accept the submission made by Mr Robertson SC at the hearing that cl 1.9A of the WLEP (see also s 3.16(2) of the EP&A Act) does not completely extinguish the Covenants, but rather operates as a suspension of the restrictions contained within them (to the extent necessary) after the grant of consent: T73.47-T74.5. In other words, cl 1.9A provides that any restriction in the Covenants “does not apply to the extent necessary” to enable the carrying out of development for which consent has been granted. However, even if cl 1.9A does not render the Covenants extinguished, I consider the impact on the restrictions in the Covenants because of cl 1.9A to be so significant that the contention that the Joinder Applicants “ought” to have been joined to the Class 1 Appeal cannot be maintained.

71. Mr Robertson SC put considerable reliance on the High Court’s decision in John Alexander’s Clubs Pty Ltd & Anor v White City Tennis Club Ltd; Walker Corporation Pty Ltd v White City Tennis Club & Ors (2010) 241 CLR 1; [2010] HCA 19 (‘John Alexander’s Clubs’).

72. The facts of John Alexander’s Clubs are, to say the least, complex, and every aspect need not be stated here. White City Tennis Club (the Club) conducted tennis and related activities on land it did not own. Tennis NSW proposed to sell the land. The Club wanted to ensure that its members could continue to play tennis as part of a new club on part of the land after it was sold. John Alexander’s Clubs (JACS) was in the business of developing land for use by sporting clubs. It wished to help the Club in providing for a place for its members to play tennis. JACS was granted an option to purchase the land, and nominated a company called Poplar Holding Pty Ltd (Poplar) as its nominated entity to exercise the option. Poplar exercised the option, and borrowed money from Walker Corporation Pty Ltd (Walker Corporation) to do so. Walker Corporation was granted an unregistered mortgage over the land as security for this loan.

73. Following a dispute, the Club commenced proceedings in the Supreme Court claiming breach of fiduciary duty. It claimed it held a constructive trust over the land on terms that it pay Poplar its cost of acquiring it. The trial judge dismissed the proceedings. That judgment was successfully appealed to the Court of Appeal. The Court of Appeal’s first judgment was delivered on 3 June 2009, in which it held that Poplar held its interests in the land on a constructive trust for the Club. On 10 June 2009, the Court of Appeal extended until further order an injunction preventing the Registrar General of NSW from registering an interest over Poplar’s interest in the land (that injunction had originally been granted on 6 April 2009). Also on 10 June 2009, Walker Corporation foreshadowed the filing of a notice of motion seeking orders that it be joined as a third respondent to the appeal. The motion was filed the next day, and an amended notice of motion was filed shortly after that. The Court of Appeal dismissed the amended motion after a hearing. Walker Corporation joined in the appeal to the High Court.

74. On that appeal, the High Court held that Poplar did not hold its interest in the option on constructive trust for the Club. In relation to the Walker Corporation appeal, the High Court held that it was entitled to be a party to the proceedings. This is because the relief claimed by the Club – a constructive trust and transfer to it of the land – directly affected the interest of Walker Corporation as holder of a mortgage over the land. At [137] of the judgment, the Court (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) stated:

“Walker Corporation submitted that if a court makes an order affecting a person who should have been joined as a necessary party, while the order will not be a nullity, that person is entitled to have the order set aside, and is not limited merely to seeking the favourable exercise of a discretion, whether or not the person in question becomes a party. As a general proposition this submission is correct.”

75. That Walker Corporation had an entitlement to be joined as a party was said to depend on “matters of right affecting non-parties which rest on general law principles of natural justice”: John Alexander’s Clubs at [153].

76. In Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50, on similar lines to the High Court in John Alexander’s Clubs, Leeming JA (with whom Meagher and Tobias JJA agree) stated at [51] that:

“It is settled law that a person who is directly affected by orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the plaintiff or applicant or person applying for those orders.”

77. Justice Leeming went on to state at [57] that:

“The joinder of a party directly affected by an order is not, at least not ordinarily, a matter of discretion: It is a matter of obligation upon the party seeking the order.”

78. The circumstances of this case differ significantly from the relevant circumstances in John Alexander’s Clubs. In that case, Walker Corporation had been granted a mortgage over the land in question as security for a loan. Here, the property rights of the Joinder Applicants have been fundamentally curtailed by cl 1.9A of the WLEP. As Meagher JA (Giles and Simos AJJA agreeing) said at 15,521 in Coshott & Anor v Ludwig (1997) 8 BPR 15,519 in the context of similar statutory provisions to s 3.16 of the EP&A Act and cl 1.9A of the WLEP:

“The self evident purpose of s 28 of the Act and cl 32 of the LEP 27 is to nullify and remove all obstacles [such as restrictions in covenants] to the planning principles decided on by the council or the minister. In this context, s 28 of the Act is stating, in effect, “an environmental planning instrument may state what documents should be disregarded”, and cl 32 of LEP 27 is stating that one type of document to be disregarded is a document creating a restrictive covenant”.

(emphasis added)

79. While a provision like cl 1.9A of the WLEP may put the restrictions in the Covenants in abeyance rather than extinguishing them, “that abeyance represents a serious inroad upon the property rights of [the Joinder Applicants]”: Cumerlong Holdings v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 at [12] per Gummow ACJ, Hayne, Crennan and Bell JJ.

80. Given the impact on the Covenants by cl 1.9A of the WLEP, which is such as to “nullify and remove all obstacles to the planning principles” provided for in the WLEP, in my view the Joinder Applicants were not persons who “ought” to be joined to Wheeldon’s Class 1 Appeal.

81. My view on this is strengthened by the following context. All through the planning history of Wheeldon’s DA, the Joinder Applicants have been able to make submissions and objections on all issues of concern to them regarding the original DA plans and the amended DA plans. For example:

(a) the Joinder Applicants made submissions to Council (including with the aid of expert opinion) opposing consent after notification of the DA in July 2023; [17] (b) through the objection process, the Joinder Applicants made reference to the restrictions in the Covenants; and (c) the Joinder Applicants made submissions opposing the amended DA plans at the conciliation conference on 6 March 2025.

82. Moreover, as part of the Class 1 Appeal, a joint expert report was filed which addressed the issues and impacts that were the subject of the Joinder Applicants objections: that is view impacts, privacy impacts, and the bulk and scale of the proposed development. [18]

83. Based also on this history, I am of the view that there is no reason that the Joinder Applicants “ought” to be joined to the proceedings, nor (even had they filed their motion prior to the s 34 agreement being reached between Wheeldon and the Council) could it be said that joinder was “necessary to the determination of all matters in dispute in any proceedings” (r 6.24(1)), nor could it be said that any issue in the proceedings “would not likely to be sufficiently addressed if the [Joinder Applicants] were not joined as a party”: s 8.15(2)(a). In fact, every issue of concern to the Joinder Applicants was raised before the conciliation conference in the planning history, in the Council’s Statement of Facts and Contentions for the Class 1 Appeal, and was part of the expert evidence of the Joint s 34AA Expert Report.

84. Therefore, had the motion for joinder been filed and argued prior to the s 34 agreement being reached, I would still in the circumstances have dismissed the Amended Joinder Motion.

Motion for Stay and Set Aside of Judgment

85. A week after judgment was delivered in Wheeldon’s Class 1 Appeal, on 7 April 2025, the Joinder Applicants filed the Stay/Set Aside Motion seeking an order that Wheeldon’s Class 1 Appeal “be stayed nunc pro tunc from 20 March 2025” until the Amended Joinder Motion was heard and determined, and an order setting aside the judgment and the orders of the Court given on 31 March 2025.

86. In the last moments of the hearing of the two motions before me, Mr Robertson SC sought leave to amend the date of the stay order from 20 March 2025 to 5 March 2025. Subsequently, a proposed amended notice of motion was provided to me in which a further order was sought (in the alternative) that “the said proceedings be stayed nunc pro tunc from 5 March 2025 until the said motion is heard and determined”.

87. This amendment application falls away for the reasons outlined below, but it was perhaps made because of the difficulty I believe was posed by filing the Joinder Motion after the date agreement was reached between Wheeldon and the Council, which left as the only issue in the proceedings the very narrow matter of whether the decision of the parties was one which the Court could properly make.

88. I consider the Stay/Set Aside Motion should be dismissed (and the application to amend the motion refused) but before turning to my reasons for reaching this view, since becoming reserved in these motions, I have been troubled as to whether the Stay/Set Aside Motion is a proper means to seek to set aside the judgment of the Court handed down on 31 March 2025. This is because the error that is said to have been made (which is also said to be a jurisdictional error) is an alleged error of the Senior Deputy Registrar made at a directions hearing for the Amended Joinder Motion on 20 March 2025. There is no attack on anything the Commissioner did (except obliquely at [8] of the Joinder Applicants’ Amended Submissions for Stay and Set Aside Judgment dated 14 April 2025 (JAS 2)), or concerning the content and reasoning in the judgment itself. It may be that any attempt to seek the setting aside of the Court’s decision (noting that the motion before me is of course not an appeal under s 56A of the LEC Act) should have been brought in the Supreme Court pursuant to s 69 of the Supreme Court Act 1970 (NSW).

89. This issue was not argued before me or raised in submissions. Accordingly, I now set out my reasons for dismissing the Stay/Set Aside Motion.

Joinder Applicants Submissions on the Stay/Set Aside Motion

90. The central plank of the Joinder Applicants’ submission is that at the directions hearing on 20 March 2025 for the Amended Joinder Motion, the Senior Deputy Registrar made a jurisdictional error when she incorrectly thought she lacked power to make a consent order for the stay of the proceedings. [19] Because she erroneously thought she lacked power to make the stay order, the submission is made that she failed to exercise her jurisdiction, which is a form of jurisdictional error. [20]

91. This error was said to be “consequential” or material, in that the proceedings became listed for judgment on 25 March 2025, with no stay by the Court in place, albeit agreement between Wheeldon and the Joinder Applicants that the proceedings would be stayed pending the matter coming before a judge on 24 April 2025 for the hearing of the Amended Joinder Motion. What followed is set out above at [25]-[30], with judgment of the Court ultimately being delivered on 31 March 2025.

92. It is submitted that because of all this, the Joinder Applicants were denied a right to a hearing, which justifies the setting aside of the judgment. [21] In the same paragraph of the JAS 2, it is said that “on no possible basis could it be said that the actions of the Court officers (the Senior Deputy Registrar and the Commissioner) were in accordance with the dictates of justice: s 58, Civil Procedure Act”. Pausing here, I have difficulty understanding the criticism of the Commissioner. She has been informed of a s 34 agreement between the parties to the Class 1 Appeal. No order was made by the Court to stay those proceedings. She was not involved in any aspect of listing or case managing the Amended Joinder Motion, nor was she asked to grant a stay. She then delivered a judgment reflecting what she was bound to do pursuant to s 34(3) of the LEC Act. I fail to understand how any of what she did is outside or not in accordance with the “dictates of justice”.

93. In any event, the Joinder Applicants submit that because “the stay order should have been made by the Senior Deputy Registrar on 20 March, but was not because of a jurisdictional error, a nunc pro tunc order for a stay should be made … The judgment can then be set aside as an irregularity, although it could also be set aside directly on the natural justice or abuse of process grounds”. [22]

94. In supplementary written submissions dated 28 April 2025, the Joinder Applicants clarified that they “rely on the implied or incidental power of the Court, or alternatively UCPR r 36.15 to set aside the judgment as irregularly obtained for breach of procedural fairness and abuse of process”. [23] Reliance was also placed on UCPR r 36.16(2)(b) which is in the following terms:

36.16(2) The Court may set aside or vary a judgment or order after it has been entered if--

…(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order…

95. In relation to the reference to “party” in UCPR r 36.16(2)(b) a submission was made that “party” extends to a non-party with an interest in the judgment or order: JPMorgan Chase Bank*, National* A**ssociation v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31 at [101], [104], [147], [162]-[164], [166].

96. As to the stay orders sought, the Joinder Applicants rely on r 36.4(3) UCPR which is in the following terms:

36.4(3) Despite subrules (1) and (2), the court may order that a judgment or order is to take effect as of a date earlier or later than the date fixed by those subrules.

Wheeldon’s Submissions

97. Wheeldon submits that unless an order for joinder is granted, there is no utility in the Court making the stay or set aside orders. [24]

98. The essential part of the balance of the Wheeldon submissions is that the Senior Deputy Registrar was entitled not to make the stay order sought in the Short Minutes of Order on 20 March 2025, and the matter was therefore left “no higher than a note agreed between the parties recorded on the Court’s computerised record system”. [25] In oral submissions, Ms Irish also submitted that at the hearing before the Senior Deputy Registrar the Joinder Applicants’ solicitor did not ultimately press for a stay to be granted by the Court, and hence no error was made: T 24.47 – T 25.17; T26.50 – T 27.21; T 38.46 – T39.19.

Resolution

99. In my view, the Senior Deputy Registrar did not make a jurisdictional error on 20 March 2025. When the transcript of that directions hearing is analysed closely (it is set out above at [20]), she was not required by the parties, including the legal representative for the Joinder Applicants, to make a determination on Order 2 as sought in the Short Minutes of Order.

100. It is true that on page 1 at line 43-44 of the transcript, the Senior Deputy Registrar is recorded as saying:

“I see that you’re seeking order 2 of the short minutes being order 2 the notice of motion. That is not an order that I can make. It will need to be heard as part of the notice of motion before a judge.”

101. Pausing here, in my view the Senior Deputy Registrar did have power to make Order 2 sought in the Short Minutes of Order, namely an order “that the determination of the substantive proceedings 2024/00364616 be stayed until the motion is heard and determined”. This is because pursuant to s 13 of the CPA, on 7 May 2020 the Chief Judge of this Court had delegated to the Registrar and Deputy Registrars the power to grant a stay of proceedings under s 67 of the CPA in a Class 1 Appeal. I accept the submission made by Mr Robertson SC to this effect at JAS 2 at [6]. There was no resistance to this from Ms Irish.

102. That is not the end of the matter however. The transcript then shows the following was said:

Parino [sic]: Registrar, I’d actually checked if you’d had the power but in any event we’re happy to be before a judge.

Irish: Registrar, we’re happy to have that be a note that the applicant in the substantive proceedings is prepared to accept that there be no determination that the status quo remain as it is, pending the relief in the notion being argued. That was the underlying purpose of that direction.

Senior Deputy Registrar: I’m happy to make that note … I’m striking out order 2 and not hearing any objection to the proposed note by the applicant. So, Ms Irish, can you give me the wording of your proposed note? … All I can do is note that that’s what the parties agree, but as I said, I’m not prepared to order it.

103. No criticism at all is made of this, but at this point in the directions hearing, the parties (the legal representatives for the Joinder Applicants and Wheeldon) have taken charge of the stay issue. No challenge was made to anything said by, or the position taken by, the Senior Deputy Registrar. The parties indicated that they were content for the stay order in the Short Minutes not to be made, and to be merely the subject of an agreement between them. I agree with the submission made by Ms Irish that the Court ceased to be involved in the issue of the stay, save for a note being made of the parties’ agreement. Whatever this is, it does not in my view represent a jurisdictional error of the Senior Deputy Registrar. The parties were content for her not to exercise jurisdiction, and they were content for her not to make a decision on the stay issue.

104. That is enough to dispose of the Stay/Set Aside Motion. I do note however that for some reason the events recorded at [25]-[30] above occurred. It may have been preferable if the matter had not been listed for judgment on 25 March 2025, then taken out of the judgment list, then relisted for judgment on 31 March 2025, on which morning judgment was delivered. This is particularly so given the timetable for evidence for the Amended Joinder Motion that was made on 20 March 2025. Be that as it may, there is no jurisdictional error made by the Senior Deputy Registrar (much less the Commissioner) which warrants the setting aside of the judgment.

105. If I held a different view about this, I would still decline to grant the relief sought in the Stay/Set Aside Motion. This is because, for the reasons set out above, I do not consider that the Joinder Applicants should be joined to the proceedings. There would be no utility in my view in setting aside the judgment of the Court, only to have the Commissioner be bound to deliver an identical judgment based on the agreement reached between Wheeldon and the Council at the s 34AA conference on 6 March 2025.

106. For these reasons, the Stay/Set Aside Motion is dismissed.

Costs

107. It may be that the parties wish to make particular submissions as to the costs orders I should make in relation to the two notices of motion. I will therefore allow a timetable for the exchange of written submissions. If either party feels that there should be an oral hearing in relation to costs, they can let my Associate know in accordance with these orders.

Orders

1. The Amended Notice of Motion filed 17 March 2025 (Amended Joinder Motion) is dismissed.
2. Leave refused to amend the motion filed 7 April 2025 (Stay/Set Aside Motion).
3. Stay/Set Aside Notice of Motion filed 7 April 2025 is dismissed.
4. Costs in relation to both motions are reserved. If the parties reach an agreement in relation to what costs orders I should make, they should notify my Associate within 7 days of the date of this judgment.
5. In the absence of agreement between the parties in relation to costs, the parties have leave to file and serve written submissions (limited to five pages) in relation to costs orders they seek by 5pm Tuesday 17 June 2025.
6. If either party wishes to supplement any written submissions in relation to costs with oral submissions they are to send to my Associate a note indicating why an oral hearing is sought, for my consideration.

Addendum and Further Orders (7 July 2025)

108. I gave judgment and made orders in these proceedings on 3 June 2025 and reserved costs. As the parties have now reached agreement in relation to costs, I make the following further orders:

109. The First to Fifth Applicants on the motions are to pay the costs of the First Respondent on the motions, Susan Wheeldon, in the amount of $50,000.00 by 4 July 2025, in full and final settlement of all costs.

110. No order as to costs between the First to Fifth Applicants on the motions and the Second Respondent, Woollahra Municipal Council, on the motions.

**********

Endnotes

Exhibit AB-1 to the affidavit of Anthony Boskovitz dated 18 March 2025 (First Boskovitz Affidavit), pp 187-246.

Annexure H to the affidavit of Maysaa Parrino dated 7 April 2025.

Annexure P to the Second Boskovitz Affidavit.

Annexure T to the Second Boskovitz Affidavit.

Joinder Applicants Submissions dated 10 April 2025 (JAS) at [15].

JAS at [15].

JAS at [3] and see John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131] and [153].

JAS at [15].

JAS at [4].

JAS at [2].

JAS at [6].

Wheeldon Joinder Submissions dated 22 April 2025 (WJS) at [80].

WJS at [81].

WJS at [84] to [85].

Wheeldon’s Supplementary Submissions (WSS) at [3].

JAS at [6].

First Boskovitz Affidavit, Exhibit AB-1 pp 187-246.

see the Joint s 34AA Expert Report at pp 106-182 of Exhibit AB-1 to the First Boskovitz Affidavit.

JAS 2 at [6].

JAS 2 at [6] citing Dranichnikov v Minister for Immigrations and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [32], [86] see also Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11.

JAS 2 at [8].

JAS 2 at [11].

Joinder Applicants Supplementary Submissions at [2].

Wheeldon Stay/Set Aside Submissions dated 7 April 2025 (WS 2) at [8].

WS 2 at [13].

Amendments

07 July 2025

Addendum and Further Orders added at [108].

07 July 2025

Date of orders amended.