Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Burwood Council v Ralan Burwood Pty Ltd (No 2) [2014] NSWCA 179 Hearing dates: 23 April, 7 May, 28 May 2014 Last written submissions 29 May 2014 Decision date: 06 June 2014 Before: Sackville AJA Decision: 1. The appellant (Council), in addition to appearing on its own behalf in this appeal, be appointed to represent the owners and occupiers of lots in Strata Plan SP88309 who support the making of the orders sought by the Council in the amended Notice of Appeal. 2. The respondent (Ralan), in addition to appearing on its own behalf in this appeal, be appointed to represent in this appeal the owners and occupiers of lots in Strata Plan SP88309 who oppose the making of the orders sought by the Council in the amended Notice of Appeal. 3. Within two working days of the date of these Orders, the Council give notice to each owner of a lot in Strata Plan 88309 of these proceedings, such notice to be given in the form of the letter attached to these Orders. 4. Within two working days of the date of these Orders, the Council give notice to each occupier of a lot in Strata Plan 88309 of these proceedings, such notice is to be given in the form of the letter attached to these Orders. 5. The Council must serve a letter addressed to each lot owner, the subject of Order 3, by ordinary post: (a) to the addresses identified in the document annexed and marked "A" to the affidavit of Mr Todd Cowan sworn 2 May 2014; and (b) care of the strata managing agent, O'Connor Strata and Property Specialists Pty Limited at their place of business. 6. The Council must serve a letter addressed to each occupier the subject of Order 4 by placing the letter in the letterbox of the occupier of the Property. 7. Any person wishing to apply for leave to be joined as a party to the appeal or for leave to make submissions on the appeal is to file and serve a motion and supporting affidavit on or before 27 June 2014. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - representative orders - Council claims developer breached development consents in its construction of a commercial and residential building - Council seeks orders that the developer conduct rectification works that would require developer access to strata lots owned and occupied by parties not joined to the proceedings - lot owners and occupiers are necessary parties to the Council's appeal - whether the lot owners and occupiers should be joined by way of representative orders - whether the Court has jurisdiction to make representative orders - form of representative orders Legislation Cited: Civil Procedure Act 2005 (NSW) s 16, Part 6, Part 10 Federal Court of Australia Act 1976 (Cth) Part IVA Strata Schemes (Freehold Development) Act 1973 (NSW) s 20 Supreme Court Act 1970 (NSW) s 22 Supreme Court of Judicature Act 1873 (UK) Supreme Court Rules 1970 (NSW) r 13(1) Uniform Civil Procedure Rules 2005 r 7.4, r 7.6 Cases Cited: Adair v New River Co (1805) 11 Ves 429; 32 ER 1153 Ahmed v Chowdhury [2012] NSWSC 1452 Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41; 229 CLR 386 Carnie v Esanda Finance Corporation [1995] HCA 9; 182 CLR 398 Clark v University of Melbourne [1978] VR 457 Cockburn v Thompson (1809) 16 Ves 321; 33 ER 1005 Duke of Bedford v Ellis [1901] AC 1 Edge; Re Eco Panels Australasia Pty Ltd (in liq) [2007] FCA 30; 61 ACSR 139 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 John v Rees [1970] Ch 345 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 Ross v Lane Cove Council [2014] NSWCA 50 Category: Procedural and other rulings Parties: Burwood Council (Appellant) Ralan Burwood Pty Ltd (First Respondent) Lyall Ernest Dix (Second Respondent) John Morgan (Third Respondent) William Peter O'Dwyer (Fourth Respondent) The Owners - Strata Plan No 88309 (Fifth Respondent) Representation: Counsel: Mr TS Hale SC / Mr SB Nash (Appellant) Mr P Tomasetti SC / Mr J Johnson (First to Fourth Respondents) Solicitors: Houston Dearn O'Connor (Appellant) Storey & Gough Lawyers (First to Fourth Respondents) File Number(s): 2013/339576 Publication restriction: None Decision under appeal Citation: Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173 Date of Decision: 2013-10-16 00:00:00 Before: Sheahan J File Number(s): 40091 of 2013