BERARD v JONSHEL (NO 15) PTY LTD AND ANOR SUPREME COURT NEW SOUTH WALES [1992] NSWCA 22

BERARD v JONSHEL (No 15) PTY LTD AND ANOR SUPREME COURT NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 19 October 1992 [1992] NSWCA 22

Mahoney JA This is an application for expedition of the hearing of an appeal from the Land and Environment Court. The ground of the application is stated in the affidavit of Mr Whitehouse of 2 October 1992. It is essentially, and I summarise somewhat inadequately the effect of para9 of that affidavit, that the change of a home unit or residential flat building to a serviced apartment building has resulted in a detrimental effect upon the amenity of the building as far as the appellant is concerned.

The change in use occurred, the court has been informed, in January 1991. As appears from Mr Whitehouse's affidavit, proceedings were commenced on 20 December 1991. As I understand paral0 of that affidavit, those proceedings ultimately came on for hearing in September 1992 and were decided in that month. The court has been informed that no application for expedition was made to the Land and Environment Court. The matter now comes before this court on appeal. It will be some months at least before that appeal is heard in the ordinary course.

Without in any way minimising the difficulties which it may be Mrs Berard suffers by virtue of the change, it is necessary to achieve a balance between those cases in the list of the court which justify urgent hearing and those which are of less urgency. In all of the circumstances and having regard to the history of the matter, I do not think that there is in this matter a sufficient ground for preferring this case over other cases in the list. There are other cases in the list of at least equal urgency, and a number of them of greater urgency. I say that not in any way to deprecate Mrs Berard's application or to minimise in any way the extent of the inconvenience which may have been caused to her. But in the circumstances, I do not think that this is an appropriate case for expedition.