Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64

New South Wales Court of Appeal

CITATION: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 & 15 October 2009

JUDGMENT DATE: 1 April 2010

JUDGMENT OF: Spigelman CJ at 1; Campbell JA at 56; Handley AJA at 235

(1) Cross-appeal allowed. (2) Set aside orders 1 and 9 in the court below. (3) Appeal dismissed. (4) Replace order 9 in the court below with an order: "Except as otherwise provided by the preceding or earlier orders, I order the plaintiff pay the first defendant's costs of the proceedings: (5) Direct the parties, within 14 days of the date of delivery of these reasons for judgment DECISION: (a) to provide to each judge hearing this appeal, agreed Short Minutes of the Order appropriate to be made in lieu of order 1 in the court below. (b) in the event that agreement is not possible, to provide to each judge hearing this appeal their respective written submissions about the order that should be made in lieu of order 1 in the court below. (6) Order the Appellant to pay costs of the Respondent of the appeal and of the cross-appeal. (7) Reserve further consideration of the orders appropriate to give effect to these reasons for judgment. (8) Dismiss with costs the Appellant's Notice of Motion to receive further evidence. (9) Dismiss with costs the Appellant's application for leave to appeal from the trial judge's order refusing leave to amend the Statement of Claim. (10) Respondent to pay costs of the Appellant of the Notice of Motion seeking to strike out the Cross-Appeal.