Jessica Investments Pty Ltd & Ors & Anor v Wood & Ors [2004] NSWSC 328

New South Wales Supreme Court

CITATION : Jessica Investments Pty Ltd & Ors & Anor v Wood & Ors [2004] NSWSC 328 HEARING DATE(S) : 19 April, 2004 JUDGMENT DATE : 20 April 2004 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Notice of Motion dismissed with costs.

CATCHWORDS : PRACTICE AND PROCEDURE - JURISDICTION - SUMMARY DISMISSAL - STAY - whether the Supreme Court has jurisdiction to determine matters arising out of community schemes under Community Land Management Act - whether Court should stay proceedings in Supreme Court because Tribunal more appropriate forum. LEGISLATION CITED : - Community Land Development Act 1989 (NSW) - s.5(4) - Community Land Management Act 1989 (NSW) - s.13, s.71(3), s.80, s.97B, s.97E, s.109(3) Jessica Investments Pty Ltd - First Plaintiff Sheer Holdings Pty Ltd - Second Plaintiff Lee Andrew Wood - First Defendant PARTIES : Lisa Marcelle Willis - Second Defendant David James Driver - Third Defendant Nichola Driver - Fourth Defendant Neighbourhood Association DP No 285631 - Fifth Defendant FILE NUMBER(S) : SC 5537/03 COUNSEL : M.D. Young - Plaintiffs M. Ashhurst - Defendants SOLICITORS : Colin Biggers & Paisley - Plaintiffs David Le Page - Defendants

1 By Notice of Motion filed on 12 March 2004 the First to Fourth Defendants seek an order that the Plaintiffs' Statement of Claim be struck out or, in the alternative, that the proceedings be stayed permanently or transferred to the Consumer, Trader and Tenancy Tribunal. 2 The proceedings arise out of a dispute between the developer of a large residential development called "Macquarie Links" near Campbelltown and the Defendants, who are residents of the estate. The First Plaintiff is the developer of the estate. On 24 February 1998 it registered Community Plan DP 270152 in respect of the estate and a Community Management Statement for that Plan pursuant to s.5(4) of the Community Land Development Act 1989 (NSW) and s.13 of the Community Land Management Act 1989 (NSW) (" CML Act "). 3 On 7 July 2000, a further subdivision within DP 270152 was effected by the registration of Neighbourhood Plan DP 285631. The First and Second Defendants are the registered proprietors of Lot 6 in that deposited plan, the Third and Fourth Defendants are the registered proprietors of Lot 7, and the Second Plaintiff is the registered proprietor of Lot 9. The First Plaintiff is the registered proprietor of certain lots in both deposited plans. 4 By their Statement of Claim the Plaintiffs allege that by virtue of s.13(1)(c) and (4) of the CML Act the Community Management Statement is binding upon it, the Second Plaintiff and the Defendants as proprietors of lots within the community scheme as if those parties had executed under seal mutual covenants to observe its provisions. The Defendants do not dispute that proposition. 5 The Plaintiffs then allege that the Defendants have breached certain by-laws contained in the Community Management Statement which have effect as covenants binding on the Defendants. For example, by-law 5.1 of the Statement relevantly provides that the proprietor of a lot must not, except with approval of the relevant Planning Committee, construct any structure on Association Property. In the present case, the Planning Committee gave the Defendants approval to construct a driveway not exceeding 3.6m in width over the strip of land between the roadway and the boundaries of the Defendants' properties fronting the street, which is Association Property as defined. The Defendants do not dispute that, in breach of this approval, they have constructed their driveways of a width substantially greater than 3.6m. There are other by-laws which require the consent of the Planning Committee to the construction of the Defendants' driveways and, again, the Defendants do not dispute that their driveways have been constructed in breach of the approvals which were given under those by-laws. 6 In short, the Defendants do not dispute that the relevant by-laws are binding upon them as covenants, that they have breached those covenants and that the Plaintiffs are entitled to the benefit of those covenants. 7 The Plaintiffs claim by way of relief a mandatory injunction requiring the Defendants to remove so much of their respective driveways as exceeds 3.6m in width, and damages for breach of covenant. 8 Mr Ashhurst, who appears for the Defendants, submitted at first that the Statement of Claim should be struck out because the Supreme Court had no jurisdiction to entertain a proceeding raising issues relating to a community scheme under the CML Act ; he submitted that, on the true construction of the Act, exclusive jurisdiction to entertain such a proceeding was vested, at least in the first instance, in the Consumer, Trader and Tenancy Tribunal, as provided by Part 4 of the CML Act . He conceded that there was no express provision in the CML Act which deprived the Supreme Court of its jurisdiction to try an action seeking relief by way of injunction and damages for breach of covenant, where the covenant was binding on the parties by reason only of s.13 CML Act , but he said that this was necessarily implied by the policy of the Act as evidenced by its provisions, particularly those in Part 4. 9 Mr Ashhurst's attention was drawn in the course of argument to the provisions of s.109(3) of the CML Act , which is in the following terms: "The Supreme Court may determine all matters arising in proceedings before it under this Act or the Community Land Develop-ment Act 1989 including any matter within the jurisdiction of the Land and Environment Court."