Grace & Anor v Thomas Street Café Pty Ltd & Ors (No 2) [2008] NSWCA 72

New South Wales Court of Appeal

CITATION: Grace & Anor v Thomas Street Café Pty Ltd & Ors (No 2) [2008] NSWCA 72 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): On the papers

JUDGMENT DATE: 24 April 2008

JUDGMENT OF: Spigelman CJ; Beazley JA; McClellan CJ at CL

1. Orders made by the Court on 12 December 2007 in this matter are vacated and the following orders made in their place 2. Appeal allowed 3. Set aside the orders made by the judge at first instance 4. Declare that the premises located at 2 Thomas Street, McMahons Point New South Wales do not enjoy the benefit of existing use rights with the meaning of s 106 of the Environmental Planning and Assessment Act 1979 for the purposes of a restaurant or café DECISION: 5. The matter is remitted to the Land and Environment Court for determination of the orders that should be made on the appellants' application for injunctive or other relief 6. The respondents (including North Sydney Council) are to pay the appellants' costs of the appeal except in respect of such costs as were incurred in the preparation of the issue as to the relief by way of injunction or otherwise, if any, to which the appellants may be entitled. The costs of that issue are to be reserved pending its final determination, either by the Land and Environment Court or upon appeal from any such determination 7. The costs of the hearing at first instance before Lloyd J are to be in the determination of the trial judge on the remitted hearing 8. The parties are to pay their own costs of this Notice of Motion 9. The first, second and third respondents are to have a certificate under the Suitors' Fund Act 1951 if so entitled.