BBB Constructions Pty Limited v Catherine J Burn & Ors [2008] NSWSC 356

New South Wales Supreme Court

CITATION : BBB Constructions Pty Limited v Catherine J Burn & Ors [2008] NSWSC 356

HEARING DATE(S) : 08/04/08, 09/04/08

JUDGMENT DATE : 9 April 2008

JUDGMENT OF : Hoeben J

The plaintiff's motion of 8 April 2008 is dismissed. DECISION : Costs are reserved. The matter is stood over for final hearing to 10am on Thursday, 10 April 2008.

CATCHWORDS : Injunctive relief - developer seeks order restraining entry onto land by police under State Emergency and Rescue Management Act 1989 - developer not acting quickly enough to deal with emergency situation - balance of convenience - pre-eminence of requirement that state instrumentality enter development site to address emergency.

LEGISLATION CITED : State Emergency and Rescue Management Act 1989

BBB Constructions Pty Limited - Plaintiff PARTIES : Catherine J Burn - First Defendant John Lee - Second Defendant New South Wales Police Force - Third Defendant

FILE NUMBER(S) : SC 30036/2008

COUNSEL : Mr N Nicholls - Plaintiff Mr J Giles - Defendants

SOLICITORS : Colin Biggers & Paisley - Plaintiff Minter Ellison - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST HOEBEN J

Wednesday, 9 April 2008

30036/2008 – BBB CONSTRUCTIONS PTY LIMITED v Catherine J BURN & Ors

JUDGMENT

Nature of Proceedings 1 HIS HONOUR: The plaintiff is a developer. The first defendant is an Assistant Commissioner in the NSW Police Service. The second defendant is the Director General of the NSW Department of Commerce. The plaintiff by summons seeks a declaration that the direction given by the first defendant purportedly pursuant to s 61(1)(c) of the State Emergency and Rescue Management Act 1989 (SERM Act) dated 4 April 2008 (the direction) to the second defendant is invalid. It also seeks a declaration that the direction was outside the scope of the power contained in s61(1)(c) of the SERM Act. It seeks orders restraining the defendants from implementing the direction. 2 By way of notice of motion the plaintiff seeks orders restraining the defendants until 4pm on 10 April 2008 from entering premises at 64-68 McEvoy Street, Alexandria (also known as 222 Botany Road, Alexandria) (the site) and taking any steps or actions towards the carrying out of any of the works described in the direction. The plaintiff seeks an order that the defendants immediately deliver up possession of the site to the plaintiff. 3 The matter came before me as a matter of urgency as Duty Judge in the Common Law Division. I gave leave for the summons, notice of motion and supporting affidavits to be filed in court. 4 The reason for the urgency in the application emerges from the background facts.