Edwather Grazing Pty Ltd v Pincevic Nominees Pty Ltd [2001] NSWSC 157

Reported Decision : (2001) NSW ConvR 55-980

New South Wales Supreme Court

CITATION : Edwather Grazing Pty Ltd v Pincevic Nominees Pty Ltd [2001] NSWSC 157 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2173 of 2000 HEARING DATE(S) : 22 February 2001 JUDGMENT DATE : 15 March 2001

PARTIES : Edwather Grazing Pty Ltd (Plaintiff) Pincevic Nominees Pty Ltd (Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr C Harris (Plaintiff) Mr P McEwen SC (Defendant) SOLICITORS : John W Hogan (Plaintiff) Marsdens (Defendant) CATCHWORDS : ESTOPPEL - equitable estoppel - representation as to future conduct - ESTOPPEL - remedies - facts such that appropriate remedy to make the representation good DECISION : See paragraph 27

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

THURSDAY, 15 MARCH 2001

2173/00 EDWATHER GRAZING PTY LIMITED V PINCEVIC NOMINEES PTY LIMITED JUDGMENT

Introduction 1 The plaintiff company, Edwather Grazing Pty Limited ("Edwather"), owns the property No. 5 Raymond Road ("No.5"). The first defendant company, Pincevic Nominees Pty Limited ("Pincevic Nominees"), owns the adjoining lot and has built on its land a shopping centre known as Raymond Mall ("Raymond Mall"). The second defendant, Anton Pincevic, is the director of the first defendant. A plan showing the location of the properties is shown below.

2 Raymond Mall has a car park, with entry off Raymond Road. There is a pipe fence on the boundary of the car park, which separates it from No. 5. 3 Between 1996 and 2000, Edwather built a shopping centre on its land with most of the shops fronting on the Raymond Mall car park. It claims that it did so relying on a representation made in 1989 by Mr Pincevic that Pincevic Nominees would remove the fence separating the properties which now prevents access to the shops erected on No. 5 from the Raymond Mall car park. 4 The plaintiff seeks an order for the removal of the fence and damages. The facts 5 The shopping complex of Pincevic Nominees known as Raymond Mall has an entrance off Raymond Road which leads to an upper car park facing the top level of shops. There is also parking underneath the mall. This development was built between 1985 and 1989. 6 Prior to 1989 the adjoining block, 5 Raymond Road, contained a derelict house. The parking lot on the top level of Raymond Mall abutted the boundary of Pincevic Nominees land and No. 5. Between the parking lot and the derelict block was an iron fence. 7 Edwather has owned No. 5 since 1989. Mr Long controls the company In 1989 he had outline plans prepared for a shopping centre on that site with shop frontages onto Raymond Road and Raymond Lane. 8 Mr Long discussed these plans with Mr Ian Maher, the Town Planning Manager of Blue Mountains City Council, who indicated that the Council did not favour the plans and would prefer that any proposed development be integrated into Raymond Mall, and especially that most shops front onto the Raymond Mall car park. He was keen to provide pedestrian access from Macquarie Road to Springwood Avenue, presumably not by way of Petite Lane. 9 Mr Long then approached Mr Pincevic. On 10 July 1989 Mr Pincevic signed a letter which was prepared by Mr Long. It is addressed to the Town Clerk of Blue Mountains City Council and according to Mr Long it contained three paragraphs as follows: Re: Development of Shops at 5 Raymond Road, Springwood My company is the owner of Raymond Mall, which adjoins the above proposed commercial development.