363 Military Road Mosman Pty Ltd v The Owners Strata Plan 72814 [2012] NSWSC 263

Supreme Court New South Wales

Medium Neutral Citation: 363 Military Road Mosman Pty Ltd v The Owners Strata Plan 72814 [2012] NSWSC 263 Hearing dates: 14 March 2012 Decision date: 21 March 2012 Jurisdiction: Equity Division Before: Ward J Decision: Application to transfer proceedings to Land and Environment Court refused. Proceedings in this Court stayed until outcome of proceedings in Land and Environment Court. Review of costs order by Registrar. Costs order not disturbed. Catchwords: PRACTICE AND PROCEDURE - transferring Supreme Court proceedings to the Land and Environment Court pursuant to s 149B Civil Procedure Act 2005 (NSW) - Supreme Court proceedings with respect to construction of an easement - Land and Environment Court proceedings with respect to modification of conditions of development consent - where the proceedings concern different legal questions - where outcome of Land and Environment Court proceedings might obviate utility of Supreme Court proceedings - HELD - application for transfer not granted - appropriate order is to stay Supreme Court proceedings pending outcome of the Land and Environment Court proceedings - PRACTICE AND PROCEDURE - review of discretionary costs of order made by Registrar - considerations to be taken into account when reviewing exercise of discretion similar to those established in House v R on an appeal - HELD - cost orders were not plainly unjust or unreasonable or outside the discretion of the Registrar - application to set aside dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Double Bay Marina v Woollahra Municipal Council (1985) 54 LGRA 313 House v R [1936] HCA 40; (1936) 55 CLR 499 Lowy v The Land and Environment Court of NSW & Ors [2002] NSWCA 353 Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 Sertari Pty Ltd v Nirimba Developments Pty Ltd [2007] NSWCA 324 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 Texts Cited: N/A Category: Interlocutory applications Parties: 363 Military Road Mosman Pty Ltd (Plaintiff/Applicant) The Owners Strata Plan 72814 (Defendant/Respondent) Representation: Counsel P Tomasetti SC with Ms S Cirillo (Plaintiff/Applicant) M S Henry (Defendant/Respondent) Solicitors I E Duffield (Plaintiff/Applicant) Shaw Reynolds Bowen & Gerathy (Defendant/Respondent) File Number(s): 11/231799