Kennedy v Stockland Development Pty Ltd & Anor (No 3) [2011] NSWLEC 16

Land and Environment Court New South Wales

Medium Neutral Citation: Kennedy v Stockland Development Pty Ltd & Anor (No 3) [2011] NSWLEC 16 Hearing dates: 18 February 2011 Decision date: 21 February 2011 Before: Pain J Decision: Subsequent orders made Catchwords: Procedure: whether leave to amend points of claim ought be granted - whether leave to rely on expert survey evidence ought be granted - whether order for access to land to carry out a survey ought be made Legislation Cited: Civil Procedure Act 2005 s 58, s 64 Uniform Civil Procedure Rules 2005 r 14.7, r 31.19, r 31.20 Category: Procedural and other rulings Parties: Mr Roy 'Dootch' Kennedy (Applicant) Representation: Counsel: Mr A. Oshlack (Applicant) Solicitors: Herbert Geer (First Respondent) File Number(s): 40880 of 2010

Judgment 1The First Respondent was granted major project approval for a residential subdivision at Sandon Point, Bulli on 29 November 2009 by the Second Respondent. The Applicant represented by an agent, Mr Oshlack, is challenging compliance with various conditions of that approval in Class 4 proceedings. The matter is presently set down for hearing at the end of March 2011. The parties have filed three Notices of Motion which were heard together. Two are dealt with in this judgment. The difficulty of getting the matter ready for hearing was raised with the parties at the hearing as likely to necessitate a postponement of the hearing dates.

Applicant's Notice of Motion seeking leave to rely on Amended Points of Claim (APOC) 2Section 64 of the Civil Procedure Act 2005 (the CP Act) provides that a court may order the amendment of any document in the proceedings at any stage, subject to s 58, in order to enable the real issues in dispute to be raised. The Court has discretion whether to allow any amendment to pleadings, taking into account matters such as the timing of the application and the nature of the amendment sought. Here the application is made close to the hearing date and involves substantive changes in the APOC. But for the necessity to postpone hearing dates because the matter is not otherwise able to proceed (referred to later in the judgment in relation to preparation of evidence) the application is likely to have been refused given the prejudice to the First Respondent. It is also relevant to note that under the Uniform Civil Procedure Rules 2005 (UCPR) r 14.7 pleadings are to contain a summary of the material facts on which the party relies, not the evidence by which those facts are to be proved. 3The Notice of Motion seeking leave to rely on the APOC was filed with leave by the Applicant's agent in Court on 2 February 2011. No affidavit to support the substance of the amendments sought was filed. Consequently the documents which the Applicant's agent sought to rely on in the course of argument were not identified to the First Respondent until submissions, an unsatisfactory circumstance. The documents referred to by the Applicant's agent Mr Oshlack were marked MFI 1. An affidavit of Mr Braithwaite dated 24 November 2010 read in an earlier interlocutory hearing attached the relevant conditions of approval and these were referred to.