GOSFORD RSL CLUB LTD v GOSFORD RACE CLUB LTD [1998] NSWCA 96

GOSFORD RSL CLUB LTD v GOSFORD RACE CLUB LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

BEAZLEY, STEIN JJA and SHEPPARD AJA 15 June 1998, 15 June 1998

[1998] NSWCA 96

Procedural fairness — Dismissal of summons by trial judge — Whether appellant denied opportunity of presenting case — Whether a reasonable expectation that case would be heard — Whether denial of natural justice justifying intervention.

Beazley JA This appeal raises a single issue, namely, whether the appellant was denied procedural fairness in the trial judge's dismissal of its summons on 23 March 1998. The determination of that issue requires a short recounting of the history of the proceedings and an examination of what his Honour said in his three judgments in the matter.

The proceedings related to two covenants which affected land at Gosford. The dominant tenement is a racecourse owned by the respondent. It has the benefit of two covenants which are lettered (b) and (c) in the transfer in which they are contained and are in the following terms:

"(b) That the subject land should only be used as a Bowling and Recreation Club.

(c) The transferees their executors administrators and assigns shall not carry on any business or trade on the subject land which will interfere with the running and conduct of racing on the adjoining land."

In general terms, the appellant, by these proceedings, sought to have extinguished or modified the restriction arising under these covenants.

The proceedings were heard by Bryson J over approximately 5 days. On 18 December 1997, his Honour delivered judgment which, had his Honour made final orders, would have resulted in the dismissal of the summons. The effect of his Honour's judgment was that the land, as affected by covenant (b) had in effect been sterilised. His Honour was not satisfied, however, that the proposal which had been made in respect of covenant (c) was anything "more than a concept". He found that he was "not able to come to a conclusion about a declaratory order or an order for modification of covenant (c) except in relation to a more specific proposal". His Honour further stated: