Land and Environment Court New South Wales Medium Neutral Citation: Mathews v The Uniting Church in Australia Property Trust (NSW) (No 1) [2011] NSWLEC 222 Hearing dates: 20 October 2011 Decision date: 20 October 2011 Jurisdiction: Class 4 Before: Craig J Decision: 1.Strike out paragraphs 7, 8 and 11 of the applicants' summons. 2.Strike out paragraphs 33 - 43 and paragraphs 47, 52, 53 and 56 of the applicants' points of claim. 3.Order that the Applicants provide proper answers to the request for particulars made by letter from the first respondent's solicitors on 8 September 2011, such particulars to be provided on or before 9 November 2011. 4.Direct that any application for leave to replead those bases of claim that have been struck out be made by motion, such motion to be served by Friday 18 November 2011 and made returnable on Wednesday 30 November 2011. 5.Direct that the first and fifth respondents notify the applicants by 25 November 2011 whether they oppose any such leave to amend being granted. 6.The applicants are to pay the costs of the first respondent in respect of the first respondent's notice of motion filed on 23 September 2011. 7.Stand over the subpoena directed to Michael Eugene Neustein to Wednesday 30 November 2011. 8.Reserve my decision in respect of the applicants' notice of motion to strike out the subpoena directed to Mr Neustein. 9.As between the applicants and the fifth respondent, each party should bear their and its costs in relation to the first respondent's notice of motion. 10.Otherwise the proceedings are stood over for directions to Wednesday 30 November 2011 at 9.30am. Catchwords: INTERLOCUTORY APPLICATION - strike out application - application for proper and better particulars - strike out granted - request for particulars granted Legislation Cited: Cheques Act 1986 (Cth) Environmental Planning and Assessment Act 1979 Government Information (Public Access) Act 2009 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Foyster v Foyster Holdings Pty Ltd [2003] NSWSC 881 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 In the matter of Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 253 In the matter of One.Tel Ltd (in liq) - SingTel and Optus Pty Ltd v Weston [2010] NSWSC 1491 National Employers Mutual General Insurance Association Limited v Waind [1978] 1 NSWLR 372 Portal Software v Bodsworth [2005] NSWSC 1115 Southern Pacific Hotel Service Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710 Category: Procedural and other rulings Parties: Celia Chater Mathews (First Applicant) Martin Welsh (Second Applicant) The Uniting Church of Australia Property Trust (NSW) (First Respondent) The Methodist Church (NSW Property Trust) (Second Respondent) Maitland & Butcher Pty Ltd (Third Respondent) Maitland & Butcher Architect Pty Ltd (Fourth Respondent) Hornsby Shire Council (Fifth Respondent) Representation: Mr J R Dupree (Applicant) Ms Sandra Duggan SC (First Respondent) Mr T Pickup (Solicitor) (Fifth Respondent) Russo & Partners Solicitors (Applicant) Gadens (First Respondent) Storey & Gough Lawyers (Fifth Respondent) File Number(s): 40673 of 2011 EX TEMPORE Judgment 1By notice of motion filed on 23 September 2011 the first respondent seeks to have struck out a number of paragraphs of the applicants' summons and also a number of paragraphs that have been included in the applicants' points of claim. 2The matter was before me today on a contested hearing but ultimately, after the submissions of counsel for the first respondent were completed, and as a result of observations made by me to counsel for the applicants, it was conceded on behalf of the applicants that, in substance, the first respondent's motion should succeed. 3The first respondent's motion also sought an order that its request for particulars sought on 8 September 2011 by letter from its solicitors to the applicants' solicitors, be responded to in a proper and adequate way. It has also been conceded at the hearing today that the response that has been provided thus far by the applicants' solicitor requires that further material be provided. 4In these circumstances the first respondent has been substantially successful and in light of the concessions made I make the following orders: 1. Strike out paragraphs 7, 8 and 11 of the applicants' summons. 2. Strike out paragraphs 33 - 43 and paragraphs 47, 52, 53 and 56 of the applicants' points of claim. 3. Order that the Applicants provide proper answers to the request for particulars made by letter from the first respondent's solicitors on 8 September 2011, such particulars to be provided on or before 9 November 2011. 4. Direct that any application for leave to replead those bases of claim that have been struck out be made by motion, such motion to be served by Friday 18 November 2011 and made returnable on Wednesday 30 November 2011. 5. Direct that the first and fifth respondents notify the applicants by 25 November 2011 whether they oppose any such leave to amend being granted. 6. The applicants are to pay the costs of the first respondent in respect of the first respondent's notice of motion filed on 23 September 2011. 7. Stand over the subpoena directed to Michael Eugene Neustein to Wednesday 30 November 2011. 8. Reserve my decision in respect of the applicants' notice of motion to strike out the subpoena directed to Mr Neustein. 9. As between the applicants and the fifth respondent, each party should bear their and its costs in relation to the first respondent's notice of motion. 10. Otherwise the proceedings are stood over for directions to Wednesday 30 November 2011 at 9.30am. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2012