Council of the City of Sydney v Meriton Apartments Pty Limited [2010] NSWCA 125

New South Wales Court of Appeal

CITATION: Council of the City of Sydney v Meriton Apartments Pty Limited [2010] NSWCA 125

HEARING DATE(S): 25 May 2010

JUDGMENT DATE: 25 May 2010

JUDGMENT OF: Allsop P at 1; Tobias JA at 8; Basten JA at 9

EX TEMPORE JUDGMENT DATE: 25 May 2010

DECISION: Leave to appeal is refused with costs.

CATEGORY: Principal judgment

PARTIES: Council of the City of Sydney (Applicant) Meriton Apartments Pty Limited (Respondent)

FILE NUMBER(S): CA 2009/298478

COUNSEL: Mr M Leeming SC, Ms J Shepard (Applicant) Mr D Russell QC, Mr M Seymour (Respondent)

SOLICITORS: Council of the City of Sydney (Applicant) General Counsel Meriton Group (Respondent)

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): 2009/40293

LOWER COURT JUDICIAL OFFICER: Sheahan J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298478

ALLSOP P TOBIAS JA BASTEN JA

Tuesday 25 May 2010 COUNCIL OF THE CITY OF SYDNEY v MERITON APARTMENTS PTY LIMITED

Judgment 1 ALLSOP P: This is an application for leave to appeal and if leave be granted an appeal, to be heard concurrently. The matter has been covered by written submissions of the parties and Mr Leeming has dealt with a question of leave and the substance of the arguments on the appeal. 2 For the first time today the Court was told that the trial of the matter has taken place in the Land and Environment Court, and the judgment of the learned primary judge Justice Pepper, is reserved. 3 My view is that dealing with the interlocutory strike-out application in circumstances where there is a reserved judgment would be productive of potential procedural difficulties that should not be countenanced. The learned judge in the Land and Environment Court should be free to deal with this matter on the merits, unencumbered by a fear, or risk, of procedural complexity by reason of this Court at the same time dealing with the same matter at a strike-out level. 4 This matter was set down in February for hearing in May. It was set down with that delay because it was decided to be a concurrent hearing, a matter dealt with by the parties in their submissions when the application was made. 5 It is common knowledge, and necessarily the case, that concurrent hearings take somewhat longer to be heard than leave hearings alone. Leave hearings can be squeezed into half days and afternoons where time is available. Concurrent hearings take their turn in the list. 6 After the matter was set down, the Land and Environment Court listed the matter for hearing. No-one brought this to the attention of the Registrar. No-one sought expedition. No-one sought the division of the leave and concurrent appeal. With the utmost respect to the practitioners this was most unsatisfactory. 7 In my view leave should be refused with costs. 8 TOBIAS JA: I agree. 9 BASTEN JA: I also agree. 10 ALLSOP P: The order of the court is that leave to appeal is refused with costs. **********