Steel Supplies Bega v Shoveller [No.2] [2014] NSWSC 1838

Supreme Court New South Wales

Medium Neutral Citation: Steel Supplies Bega v Shoveller [No.2] [2014] NSWSC 1838 Hearing dates: On the papers Decision date: 22 December 2014 Jurisdiction: Equity Division Before: McDougall J Decision: See at [40] Catchwords: PROCEDURE - judgments and orders - form of orders to give effect to judgment - the way in which the lessee should be ordered to comply with development consent - whether grant of new lease should be conditional on compliance with development consent

PROCEDURE - costs - departing from the general rule - other cases - substantial success - whether party seeking relief against forfeiture should pay the opponent's costs - whether duration and costs of hearing extended unreasonably - balancing factors relevant to costs Legislation Cited: Civil Procedure Act 2005 (NSW) Conveyancing Act 1919 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Dee-tech Pty Limited v Neddam Holdings Pty Limited (No.2) [2012] NSWSC 517 Category: Consequential orders (other than Costs) Parties: Steel Supplies Bega Pty Ltd (Plaintiff) Carmen Maree Shoveller (Defendant) Representation: Counsel: P M Lane (Plaintiff) A Vernier (Defendant)

Solicitors: David Griffiths Lawyers (Plaintiff) A R Walmsley & Co (Defendant) File Number(s): 2014/245619

Judgment 1. HIS HONOUR: This judgment deals with the form of orders to be made, to give effect to my decision on 14 November 2014 ([2014] NSWSC 1612). 2. The principal issues between the parties were: 1. whether the defendant lessor (Ms Shoveller) had validly terminated the lease of a property at Bega to the plaintiff (Steel Supplies); 2. whether Steel Supplies had validly exercised an option for renewal of that lease; and 3. equivalent issues under ss 129 and 133F of the Conveyancing Act 1919 (NSW). 1. I concluded that, in principle, Steel Supplies was entitled to relief under ss 129 and 133F. I directed the parties to make written submissions on the terms of any relief, the form of orders to be made and costs. 2. As to Ms Shoveller's notice under s 129 of the Conveyancing Act, to the extent that the numerous breaches alleged in it were pressed in final submissions, I concluded that: 1. the breach as to compliance with the conditions of a development consent, based on a failure to provide off street car parking spaces in accordance with the relevant condition of that consent, had been made out (see at [59] to [89] of my earlier reasons); 2. the breach alleged in relation to failure to insure had been rectified, at the latest, by 26 June 2014, which according to the s 129 notice was the last day for rectification of the alleged breaches (see at [90] to [93] of my earlier reasons); and 3. the alleged breach relating to parting with possession or assignment had not been made out (see at [94] to [120] of my earlier reasons). 1. In relation to the first and only breach that had been made out, I concluded that Steel Supplies should have relief against forfeiture, subject to conditions to be worked out (see at [121] to [148], [214] of my earlier reasons). 2. Although the breaches relied upon, in final submissions, in respect of Ms Shoveller's notice under s 133E of the Conveyancing Act did not precisely overlap those relied upon in respect of the s 129 notice, I concluded that there were no unrectified breaches as at the date of hearing. (For reasons that were not explained, the s 133E notice did not allege any breach arising out of the failure to comply with the relevant condition of consent in respect of off street car parking.) 3. Pursuant to directions that I gave when handing down my earlier judgment, the parties have provided written submissions on the outstanding questions, and written submissions in reply. The substantive disputes, in relation to the form of orders to be made, relate to: 1. the way in which Steel Supplies should ensure that it complies with the requirements of Bega Shire Council (the Council) in relation to off street car parking; 2. whether Ms Shoveller should be required to execute a new lease, pursuant to the exercise of the option and my conclusion that relief should be granted under s 133F of the Conveyancing Act, until, one way or another, compliance with the conditions of consent has been demonstrated; and 3. costs.