Willoughby City Council v Randall Pty Limited [2005] NSWLEC 11

Land and Environment Court of New South Wales

CITATION : Willoughby City Council v Randall Pty Limited [2005] NSWLEC 11

APPLICANT Willoughby City Council PARTIES : RESPONDENT Randall Pty Limited t/as Monkey Bar Car Park

FILE NUMBER(S) : 41220 of 2003

CORAM: Talbot J

KEY ISSUES: Costs :- application for leave to amend pleadings subject to separate order.

DATES OF HEARING: 23/11/2004, 24/11/2004

DATE OF JUDGMENT: 01/13/2005

APPLICANT Mr J A Ayling SC with M/s H P Irish (Barrister) SOLICITORS Mallesons Stephen Jacques LEGAL REPRESENTATIVES:

RESPONDENT Mr D J Hammerschlag SC with Mr P R Clay (Barrister) SOLICITORS Moloney Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Talbot J

13 January 2005

41220 of 2003 Willoughby City Council v Randall Pty Limited (t/as Monkey Bar Car Park)

JUDGMENT 1 Talbot J: These proceedings relate to a dispute in respect of the use of an area known as the "Monkey Bar Car Park" at Chatswood. Class 1 proceedings have also been heard and determined by Commissioner Bly and by me on appeal from one of the decisions of Commissioner Bly. 2 On 23 November 2004 the hearing of these class 4 proceedings commenced. The hearing continued intermittently on 23 and 24 November. On 24 November, after extensive argument regarding the efficacy of the applicant's Amended Points of Claim, orders were made in relation to the future conduct of the matter and it was adjourned for mention on 13 March 2005. The respondent now seeks an order that the applicant, pay the respondent, its costs thrown away as a consequence of the aborted hearing caused by the alleged inability of the applicant to plead its case. 3 The respondent argues that as a consequence of the defective points of claim and the proffering of defective proposed amendments, the proceedings foundered causing the hearing to be adjourned. Costs thrown away were occasioned by the fruitless amendment applications.