Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249

Reported Decision: 163 LGERA 83

New South Wales Court of Appeal

CITATION: Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249

HEARING DATE(S): 25 September 2008

JUDGMENT DATE: 10 October 2008

JUDGMENT OF: Spigelman CJ at 1; Bell JA at 52; Handley AJA at 53

1. Leave to appeal granted. 2. Appeal allowed. 3. Set aside Order 1 of the Land and Environment Court of 9 July 2008 and Direction 1 and Order 1 of 24 July 2008. DECISION: 4. Notice of Motion of 4 July 2008 in the Land and Environment Court dismissed. 5. The monies paid into court pursuant to the order of Sheahan J of 24 July 2008 together with interest be paid to the appellant. 6. The first respondent pay the appellant's costs of the appeal and of the proceedings in the Land and Environment Court. 7. Stay orders 2-6 until the applicant files a Notice of Appeal in this Court.

CATCHWORDS: PRACTICE & PROCEDURE – Payment into court – UCPR r 25.3 - PRACTICE & PROCEDURE – Freezing order – UCPR r 25.11 - LOCAL GOVERNMENT – Development consent – Monetary contribution – Payment while application to modify and appeal pending - WORDS & PHRASES – "Fund" – UCPR r 25.3(3)

Civil Procedure Rules 1998 (UK) LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005

Allchin v Coulthard [1942] 2 KB 228 Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380 CASES CITED: Frevcourt v Wingecarribee Shire Council [2005] NSWCA 107; (2005) 139 LEGRA 140 Myers v Design Inc (International) Ltd [2003] EWHC 103 (Ch); [2003] 1 WLR 1642 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457