GAZCORP PTY LTD v WESTFIELD MANAGEMENT PTY LTD & ANOR [2004] NSWCA 294

New South Wales Court of Appeal

CITATION : GAZCORP PTY LTD v WESTFIELD MANAGEMENT PTY LTD & ANOR [2004] NSWCA 294 HEARING DATE(S) : 25 August 2004 JUDGMENT DATE : 25 August 2004

JUDGMENT OF : Sheller JA DECISION : Application refused with costs.

CATCHWORDS : Application for extension of stay where Minister refused amended LEP - when proceedings before Land and Environment Court challenging Minister's decision LEGISLATION CITED : n/a CASES CITED : n/a Gazcorp Pty Ltd - Claimant PARTIES : Westfield Management Pty Ltd - First Opponent Kent Street Pty Ltd - Second Opponent FILE NUMBER(S) : CA 40090/04 COUNSEL : N Hemmings QC - Claimant P LeG Brereton SC/G Furness - Opponents SOLICITORS : Allens Arthur Robinson - Claimant Mallesons Stephen Jaques - Opponents

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT LEC 40699/03 FILE NUMBER(S) : LOWER COURT Lloyd J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40090/04 LEC 40699/03

SHELLER JA

Wednesday, 25 August 2004 GAZCORP PTY LTD v WESTFIELD MANAGEMENT PTY LTD & ANOR Judgment 1 SHELLER JA: On the appeal of Gazcorp Pty Ltd and Westfield Management Pty Limited this Court, on 31 March 2004, made an order that Gazcorp abstain from carrying out, or causing the carrying out of, or permitting, authorising or suffering the use of the property No 12, lot 121 in deposited plan 87692, Orange Grove Road, Warwick Farm for the purposes of a shop or shops otherwise than in accordance with development consent 4891/00 granted on 18 September 2001, or such other valid development consent as may be granted with respect to the property. At the same time, the Court stayed the operation of that order for 28 days from 31 March. 2 An application for an extension of that stay came before Justice Giles, a member of the Court which heard the appeal, and on 22 April 2004 his Honour extended the stay until 30 June 2004. His Honour carefully considered whether or not that stay should be granted and noted that there was what he described as "a considerable will to achieve development consent" which would permit the activities described in Order 2, which I have read out, to be conducted on the property. 3 The matter first came before me on 28 June 2004 when I granted a further extension up until 14 July 2004 on the basis of material put before me that within that time a decision would be made by those responsible as to whether there would be a variation of the appropriate law to enable the activities being carried out on the site to continue. My understanding was that a limited stay of 14 days was sought on the basis that one way or the other the obtaining of the necessary development consent would be achieved or not achieved within that period of time. 4 The matter came before me again on 14 July 2004 when effectively the parties, Gazcorp and Westfield, accepted that there would be in the light of material that was placed before me no variation to the appropriate law which would permit these activities to continue. The question on that occasion then was whether a further stay should be granted to enable tenants and others who were affected by the order that had been made by this Court on 31 March to regularise their affairs so that they could leave the premises or perhaps change the business they conducted on the premises. The parties effectively agreed that there should be a stay and on that basis I granted a stay up to and including today. 5 In the course of discussion, I raised with the parties the possibility of any continued application for a stay being heard in the Land and Environment Court. I did that in the context that there may be evidence to be led by tenants or other people affected relating to hardship. I also made it plain that from the point of view of this Court, if indeed this Court had to consider the matter further, that the Court be given good notice of that and that any evidence accordingly be filed. 6 I have had the benefit of material placed before me by both parties. Having considered that material I recognise that it is not possible for this Court to remit the matter now before me to the Land and Environment Court. The material put before me on this application includes an affidavit by Mr Kahagalle of 24 August 2004, which refers, amongst other things, to proceedings which have now been commenced in the Land and Environment Court. As I understand it, this application challenges the decision of the Minister not to proceed with or make an amendment to Liverpool Local Environmental Plan 1997 in a way which, as I understand it, was seen on the earlier occasions when I have been concerned with this matter, as overcoming the effect of the order made by this Court. Those proceedings in the Land and Environment Court have not been resolved and I understand have been expedited and will be heard in October. 7 Today the claimant, Gazcorp, seeks to have the stay of operation of the substituted Order 2 made on 31 March 2004 further extended up to and including 31 December 2004. 8 When the matter was called today a number of lawyers appeared at the bar table acting for various parties who I understand to be tenants or other persons or corporations affected by the order made by this Court. Mr Hemmings QC, who appears for the applicant, has, from the bar table, referred to various matters which are identified in the affidavit which I have described, namely and in particular, a parliamentary inquiry, some proceedings before the ICAC and some proposal for amending legislation from the Leader of the Opposition. 9 Mr Hemmings has pointed out that an unfortunate consequence of what has taken place up to this time is the inconvenience and hardship to those people who were tenants or employees working in the Orange Grove site in activities which offend what is now the order made by this Court. I do not in any way at all mean to discount or suggest that that inconvenience and hardship is unreal. However, the position of this Court is that an order has been made which effectively requires the respondent to abstain from carrying out or permitting, authorising the use of the premises for purpose otherwise than in accordance with a development consent of 18 September 2001 or such other development consent that may be granted with respect to the property. The extensions granted on the first two occasions by Giles JA and by myself were on the basis that there would be some other valid development consent that would permit or might permit the continuance of the activity going on in the premises. 10 As I have said, it seems to me it was accepted when the matter last came before me that that was not to happen and accordingly an extension was sought in order to give people affected time to regularise their affairs. The matter now comes before me, as I see it, on quite a different basis. It comes before me on the basis that there are various proceedings engaged in which may or may not reflect upon something that was done or is alleged to have been done by the Minister or perhaps others in more recent times. 11 Proceedings have been taken with respect to that, and those proceedings and the various other proceedings that have been referred to seem to me to be quite outside the ambit of what this Court should be doing in terms of these proceedings. As I have made plain from reading out the order the abstention does not put out of question that there may be some other valid development consent that enables the premises to be used as they are presently being used, but that, as is apparent from the material I have looked at, is entirely speculation. Previously the Court acted on the basis of material that there was a particular will to overcome this problem and a real likelihood that this would happen. That no longer exists. 12 With due respect to all that has been put to me and particularly with due respect by the material put before me by Mr Abboud, who appeared for one of the tenant parties, it appears to me that there are no good grounds for further stay of the operation of the orders made by this Court. Accordingly, the application for a stay is refused and is refused with costs. **********