Land and Environment Court New South Wales Medium Neutral Citation: Wollongong City Council v Frames & Trusses (NSW) Pty Limited [2014] NSWLEC 60 Hearing dates: 16 May 2014 Decision date: 16 May 2014 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [17]. Catchwords: PRACTICE AND PROCEDURE: application to vary final orders by consent - applicable legal principles - orders varied. Legislation Cited: Uniform Civil Procedure Rules 2005, rr 36.16(3), 36.15(2) Civil Procedure Act 2005, s 3 Cases Cited: Hardie v Milling [2013] NSWSC 310 Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) ACTR 45 Vero Insurance Ltd v Nicejade Pty Ltd [2010] NSWSC 1407 Category: Interlocutory applications Parties: Wollongong City Council (Applicant) Frames & Trusses (NSW) Pty Limited (Respondent) Representation: COUNSEL: Dr S Berveling (Applicant) Mr D Neggo (Respondent) SOLICITORS: Wollongong City Council (Applicant) N/A File Number(s): 40359/13 EX TEMPORE Judgment The Parties Apply to Vary Final Orders by Consent 1On 22 October 2013, the Court made consent orders finally disposing of proceedings commenced in Class 4 of the Court's jurisdiction ("the final orders"). 2Orders 1 and 2 of the final orders provided that: 1.The Respondent, its servants and agents are restrained from using, causing, suffering or permitting to be used Lots 17 and 18 DP 262279 otherwise known as 70-72 Princes Highway Yallah ("the Subject Property") for the purpose of assembling and storing, frames and trusses. 2.Order 1 is suspended until 1 March 2014. 3On 3 April 2014, the respondent to the proceedings, Frames & Trusses (NSW) Pty Limited ("Frames & Trusses"), applied to the Court for, amongst other things, orders setting aside the final orders. The applicant, Wollongong City Council, supported the application. 4The relevant order sought in the application is as follows: With effect from 2 May 2014, orders 1, 2, 3, 4 and 6 made by this Court on 22 October 2013 are set aside pursuant to UCPR 36.15(2). 5The final orders have not been entered. Court's Power to Vary the Final Orders 6Originally, the basis of the Court's power to set aside the final orders was stated by Frames and Trusses to be r 36.16(3) of the Uniform Civil Procedure Rules 2005 ("the UCPR"). That rule states: (3)In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a)determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b)dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. 7Because the Court was concerned that by seeking to set aside the first order of the final orders, the parties were, contrary to sub-rule (3), asking the Court to set aside an order that determined a claim for relief (namely, the injunction in order one of the final orders), it ordered the parties to file written submissions on its power to set aside the final orders in advance of the hearing of the application. The meaning of "claim for relief" includes, for example, "(f) any other claim (whether legal, equitable or otherwise) that is justiciable in the court" (see s 3 of the Civil Procedure Act 2005 and the Dictionary to the UCPR), and therefore, the setting aside of order one of the final orders would appear to be a setting aside of a claim for relief. 8Neither party complied with the order. Their reason for doing so, the Court was told at the hearing of the application, was because the parties had agreed on short minutes of order disposing of the application. 9However, order one of the consent short minutes of order sought the following: 1.With effect from 2 May 2014, orders 1, 2, 3, 4 and 6 made by this Court on 22 October 2013 are set aside. 10This, therefore, gave rise to the very question of power that the Court was initially concerned with and in relation to which it had sought written submissions. The Court accordingly stood the application down until such time as the parties complied with the Court's direction that they file written submissions in advance of the hearing of the application. 11Parties are not, simply by agreement, at liberty to ignore orders made by the Court. 12Written submissions were ultimately received which, perhaps in recognition of the potential problem raised by the Court in respect of the application of r 36.16(3) of the UCPR, subsequently sought to rely exclusively on r 36.15(2). 13That rule states: (2)A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. 14Prior to the promulgation of r 36.15(2) of the UCPR, at common law, where both parties consented, and the rights of third parties were unaffected, a court could set aside a final judgment or orders (Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) ACTR 45 at 50 per Brennan J and Hardie v Milling [2013] NSWSC 310 at [11] per Lindsay J). 15The promulgation of the UCPR does not appear to have altered this legal landscape (Hardie at [11] and [12] and Vero Insurance Ltd v Nicejade Pty Ltd [2010] NSWSC 1407 at [12]-[14] per Barrett J). Unlike r 36.16 of the UCPR, the rule applies whether the judgment or order has been entered or not (Vero at [13]). 16The circumstances of the present case indicate no reason why the discretionary power in r 36.15(2) should not be exercised in the manner sought by the parties. In particular, the parties assure me that no third party rights will be affected by the varying of the final orders. A reading of the points of claim filed on 4 July 2013, indicates that this assertion may be accepted. Orders 17I therefore make the following orders: (1)with effect from 2 May 2014, orders 1, 2, 3, 4 and 6 made by this Court on 22 October 2013 are set aside; (2)the respondent is ordered to pay the appellant's costs of the respondent's notice of motion dated 3 April 2014 as agreed or assessed; (3)the respondent's motion of 3 April 2014 is otherwise dismissed; and (4)the summons dated 17 May 2013 is otherwise dismissed. 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: 16 May 2014