AL OSHLACK v. IRON GATES PTY LIMITED [1996] NSWLEC 186 (11 July 1996) [1996] NSWLEC 2

Land and Environment Court of New South Wales

CITATION : AL OSHLACK v. IRON GATES PTY LIMITED [1996] NSWLEC 186 (11 July 1996) [1996] NSWLEC 2 PARTIES : AL OSHLACK v. IRON GATES PTY LIMITED FILE NUMBER(S) : 40152 of 1996 CORAM: Talbot J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act National Parks and Wildlife Act CASES CITED: Ross v SRA (1987) 70 LGRA 91 ; Wakefield v Duke of Buccleugh (1865) 12 LT 628, 629 DATES OF HEARING: EX TEMPORE JUDGMENT DATE : 07/11/1996

LEGAL REPRESENTATIVES:

JUDGMENT: HIS HONOUR: As Mr Rigg points out, this might be regarded as an unusual case in some respects. The present confrontation has some history, although the earlier confrontation did not directly involve the present respondent.

The subject development consent has been the subject of litigation in this Court. Findings by Justice Stein do not greatly assist the resolution of the current dilemma, which involves whether or not the consent should be enforced, having regard to alleged breaches of the conditions of consent and the potential for further breaches as seen through the eyes of the applicant.

It is also unusual, in a general sense, although not atypical in this jurisdiction, that the applicant does not offer an undertaking as to damages. With disarming frankness, Mr Larkin indicated to me when he appeared on the last occasion, in chambers, and again today, that even if an undertaking as to damages was forthcoming from the applicant, it would be of no value, having regard to the financial circumstances of the applicant.

This Court has, on previous occasions, initially as I recall in a determination by the former Chief Judge in Ross v SRA (1987) 70 LGRA 91 granted an injunction without the usual undertaking as to damages being given. However, it must be understood that before granting relief where the usual undertaking as to damages is not forthcoming, that fact in itself must be taken into account when the Court decides whether or not it will grant interlocutory relief.