WOOLWORTHS LTD v CAMPBELLS CASH and CARRY PTY LTD [NO 2] [1996] NSWCA 563

WOOLWORTHS LTD v CAMPBELLS CASH and CARRY PTY LTD [No 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, COLE and BEAZLEY JJA 22 October 1996, 22 November 1996 [1996] NSWCA 563

DEVELOPMENT CONSENTS — nature of Court orders — uncertainty of terms of consents

Sheller JA The Court delivered judgment in this appeal on 19 September 1996. At the end of my judgment, with which Beazley JA agreed, I indicated that the appellant was entitled to injunctive relief but left open to the respondent the opportunity to formulate an undertaking to the Court not to sell goods from the four premises on which the respondent carried on its business to ordinary members of the public. Cole JA who reached a different conclusion about the meaning of the development consents obtained for the premises, proposed orders which, inter alia, restrained the respondent from using the premises otherwise than for the particular purposes found in the consents, which were described in his Honour's proposed orders. The respondent proffered undertakings which were not acceptable to the appellant.

On 22 October 1996 the Court heard argument about the undertakings proffered and the orders that should be made. Following that further written material was put before the Court. The main point of contention was whether the Court's orders should expressly describe the nature of the goods that could be sold from the premises in question. The respondent submitted that for some time goods had been sold from some of the premises which at least arguably might fall outside the terms of the consents but that this had not been a matter in issue in the Land and Environment Court or on this appeal. The respondent also expressed concern about undertakings or orders, such as those the appellant proposed, which referred to sales "only in bulk quantities", because of the uncertainty involved in the use of such words.