Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276

New South Wales Court of Appeal

CITATION: Waterways Authority of New South Wales v Coal & Allied (Operations) Pty Limited [2007] NSWCA 276

HEARING DATE(S): 3 and 4 May 2007

JUDGMENT DATE: 16 October 2007

JUDGMENT OF: Beazley JA at 1; McColl JA at 196; Campbell JA at 257

DECISION: 1. Appeal dismissed; 2. The appellant is to pay the respondent's costs of the appeal on the basis of a hearing of one day's duration and that there be no costs allowed to the extent that such costs are attributable to the preparation of the issues of whether specific performance was available in respect of an executed obligation and whether damages were an adequate remedy.

CATCHWORDS: CONTRACT – lease agreement – proper construction of clause in lease agreement – whether clause totally governed the rights and obligations of the parties where lessee failed to remove structure – whether clause augmented the rights of the parties – whether lessor intended to abandon any remedies for breach of contract arising by law – principle of concurrence - CONTRACT – implication of term in lease agreement – lessee required to remove structure on leased land before expiry of the lease term – lessee required consent from statutory authority before wharf could be removed – whether lessee under implied obligation to take all steps necessary to obtain such consent – whether lessee required to appeal from refusal of statutory authority to grant consent to remove wharf - CONTRACT – lease agreement – clause provided lessor could retain structure situated on leased land at expiration of term of lease or remove structure and seek liquidated damages – negotiations between lessor and lessee in relation to removal of structure occurred over six period – lessor sought removal of part of the structure – whether lessor had decided to retain the structure - ENVIRONMENT AND PLANNING – lessee required to remove wharf situated on leased land before expiration of lease term – pursuant to cls 36 and 37 of North Sydney Local Environment Plan 1989 (NSLEP 1989) removal of wharf required consent from North Sydney Council – whether NSLEP 1989 inconsistent with Sydney Regional Environmental Plan No 23 (SREP 23) so that Maritime Services Board was the relevant consent authority – whether "demolition" was included in "development" under the Environmental Planning and Assessment Act 1979 (NSW) so that SREP 23 applied to the exclusion of NSLEP 1989 - EQUITY – specific performance – failure to remove structure before expiry of term – distinction between specific performance and an order that a contractual obligation be performed in specie – where a contract has come to an end specific performance of obligations that were to be performed during the term is not available – where in specie performance of an obligation is sought the underlying equity required for such an order is one appropriate to the actual relative legal situations of the parties - EQUITY – specific performance – failure to remove structure before expiry of lease term – breach of clause provided for lessor to recover damages from lessee where lessor removed the structure – whether damages an adequate remedy - EQUITY – equitable damages sought pursuant to s 68(b) of the Supreme Court Act 1970 (NSW) – in determining an application for equitable damages pursuant to s 68(b) the trial judge was required to determine whether the court could have granted specific performance as at the date of the commencement of the proceedings - LOCAL GOVERNMENT – statutory construction of local government legislation – trial judge held exclusive control of wharf vested in Maritime Services Board pursuant to s 33 Sydney Harbour Trust Act 1900 (NSW) – trial judge applied rule of statutory construction that general legislation which is inconsistent with particular legislation does not repeal the particular legislation – whether trial judge erred in finding inconsistency between s 33 of Sydney Harbour Trust Act and s 68 of the Local Government Act 1993 (NSW) – whether Local Government Act was contrary to or diminished the lessor's exclusive control in respect of the demolition of the wharf