Land and Environment Court of New South Wales CITATION : Baker Kavanagh Architects Pty Limited v City of Sydney Council [2007] NSWLEC 794 APPLICANT: Baker Kavanagh Architects Pty Limited PARTIES : RESPONDENT: City of Sydney Council FILE NUMBER(S) : 11031 of 2007 CORAM: Biscoe J KEY ISSUES: Practice and Procedure :- application for expedition – class 1 appeal against refusal of development consent – if these proceedings unsuccessful related Supreme Court proceedings re contract for sale of land unlikely to be proceeded with. DATES OF HEARING: 23 October 2007 EX TEMPORE JUDGMENT DATE : 23 October 2007 APPLICANT: Mr J Kosmin SOLICITORS Kosmin and Associates LEGAL REPRESENTATIVES: RESPONDENT: Ms N Johnston SOLICITORS Maddocks JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 23 October 2007 11031 of 2007 BAKER KAVANAGH ARCHITECTS PTY LIMITED v CITY OF SYDNEY COUNCIL EXTEMPORE JUDGMENT 1 HIS HONOUR: This is a motion for expedition of the hearing by the applicant in this class 1 appeal against the respondent council's refusal of the applicant's development application D/2007/88, in respect of land at 140-144 Cleveland Street, Chippendale. 2 The applicant is the architect for the purchaser of that property pursuant to a contract for sale dated 7 November 2006. The purchase price under the contract was $4,500,000 in respect of which a deposit of $225,000 has been paid. The time for completion of the sale under the contract was 1 July 2007. 3 Between exchange and completion the applicant, as intended by the parties, applied to the respondent council for development consent to develop the property for the purposes of a backpackers' hostel. The applicant says that it was a condition of the contract for sale pursuant to condition 16.1 that the vendor would do certain things to enable that development application to be made and prosecuted. 4 The applicant lodged its application for development consent on about 15 January 2007. The application was determined by the respondent council on 13 August 2007 by refusal of consent. The applicant contends that it was necessary in order that the purchaser be in a position to complete its purchase pursuant to the contract, that the development consent be granted. 5 This contention appears to be on the basis stated in a letter dated 24 July 2007 from the solicitors for the applicant and purchaser, to the vendor's solicitors: We advise that we consider that the said Notice to be invalid both as to form and substance. We again draw to your attention to the fact that our client experienced considerable difficulty in obtaining access to the property to enable it to complete the Development Application and that your client was in breach of cl 16.1 of the Contract. As a result our client experienced substantial delays with respect to the lodgement and the processing of the Development Application, which, in turn, has resulted in our client's finance availability being delayed. We therefore submit that the purported Notice in this instance is unjustified and inequitable and not a valid Notice... 6 According to the evidence, in the circumstances the applicant was unable to complete the purchase, and on 16 July 2007 the vendor issued a notice to complete the contract by 31 July 2007. The contract was not completed by the time stipulated in the notice to complete and on 1 August 2007 the vendor issued a notice of termination by which it purported to terminate the contract. It is the purchaser's contention that the vendor failed to comply with its obligations under condition 16.1, by reason of which the applicant was delayed in the obtaining determination of the development application. 7 The purchaser contends that but for the vendor's conduct the applicant would have been able to prosecute an appeal in this court in respect of council's refusal of its development application and would have had a reasonable expectation that that appeal would have been determined before the time permitted under the contract for completion. 8 In those circumstances the purchaser, Carewash Café Pty Ltd, has now commenced proceedings in the Supreme Court of New South Wales against the vendor, Benima Pty Ltd, seeking declaratory and other relief in relation to the vendor's conduct and its purported termination of the contract. Those proceedings are next returnable in the Supreme Court on 15 November 2007 before the Duty Judge. Also returnable before the Duty Judge on that date is the plaintiff's notice of motion seeking an extension of time for the operation of a caveat over the subject land. The motion is responsive to the vendor's Notice to Caveator of Proposed Lapsing of Caveat, which was enclosed with a letter dated 3 September 2007 from the vendor's solicitors to the purchaser's solicitors. 9 I am informed by the solicitor for the applicant that it is anticipated that only the motion for the extension of the caveat is likely to be dealt with in the Supreme Court proceedings on 15 November. 10 The applicant submits that these proceedings should be expedited because if these proceedings are unsuccessful the purchaser would most likely not proceed with the Supreme Court proceedings since, in order to complete the purchase, the applicant needs to procure finance which is dependent upon the obtaining of development consent. 11 The respondent council opposes expedition on two grounds. The first is that if the Supreme Court proceedings are unsuccessful then there is no utility in continuing with the proceedings in this court. The applicant's response is that even if the Supreme Court proceedings were unsuccessful there would still be utility in a practical sense in continuing with the proceedings in this court because if development consent is granted then there is the prospect of reopening negotiations with the vendor, notwithstanding that the contract of sale had been terminated. 12 The second ground advanced by the respondent council is that it would not be feasible for this court to determine the appeal against the refusal of the development consent by 15 November when the Supreme Court proceedings are next returnable. The applicant's response is that on 15 November it is only anticipated that the motion for extension of the caveat will be dealt with by the Supreme Court and that the substantive proceedings will be dealt with on a later occasion. 13 In my opinion, a case for expedition has been made out. I accept the applicant's responses to the council's submissions and am persuaded that the grounds advanced by the applicant are sufficiently weighty to grant the application for expedition. 14 That the respondent council made an oral application during the course of submissions and without prior notice to the applicant, for a stay of these proceedings pending the outcome of the Supreme Court proceedings. It follows from my earlier reasons that I would not accept that application even if it had been made on notice. 15 Accordingly, the orders of the court are: 1) The proceedings are expedited. 2) The parties are to approach the registrar before 4pm today in order to obtain a hearing date. 16 After making the above orders, the parties obtained hearing dates from the Registry and drew up proposed short minutes of directions leading to the hearing. By consent, I make orders in accordance with the short minutes dated 23 October 2007 initialled by me and placed with the papers. I note that the proceedings are fixed for hearing on 22 and 23 November 2007. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.