King v Potts [2015] NSWLEC 22

Land and Environment Court New South Wales

Medium Neutral Citation: King v Potts [2015] NSWLEC 22 Hearing dates: 13, 18 February 2015 Date of orders: 20 February 2015 Decision date: 20 February 2015 Jurisdiction: Class 4 Before: Biscoe J Decision: See [60]-[61] Catchwords: CIVIL ENFORCEMENT – whether respondent carried out works on common property of a duplex under a strata plan that required development consent and without obtaining development consent – whether heads of agreement extinguished applicant's cause of action when entered into or upon performance of agreement – performance by respondent of carrying out works to reduce size of balcony under agreement expressly dependent upon Council indicating it would issue a building certificate – before Council would assess building certificate application it required development application to use deck and a construction building application for completion of unauthorised works to be submitted and approved – whether implied contractual obligation of cooperation required applicant to do all that was necessary to cause owners corporation to consent to the making of the development application – whether parties' proposed consent orders in the nature of specific performance of provisions of the heads of agreement should be on terms that respondent pay applicant compensation for alleged costs incurred by applicant beyond those contemplated by the heads of agreement caused by unreasonable conduct of respondent – whether proceedings should be dismissed because the heads of agreement extinguished applicant's cause of action. Legislation Cited: Civil Procedure Act 2005 s 73 Environmental Planning and Assessment Act 1979 s 149E Environmental Planning and Assessment Regulation 2000 cl 49 Cases Cited: Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187, (2001) 69 NSWLR 558 Commissioner of Taxation v Sara Lee Household and Body Care (Australia) Pty Ltd [2000] HCA 35, (2000) 201 CLR 520 Jingalong Pty Ltd v Todd [2015] NSWCA 7 Mackay v Dick (1881) 6 App Cas 251 Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45, (1993) 177 CLR 635 Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19, (2012) 186 LGERA 366 Secured Income Real Estate (Aust) Ltd v St Martins Investments Pty Ltd (1979) 14 CLR 596 Texts Cited: Foskett, The Law and Practice of Compromise (1996, 7th ed) Category: Principal judgment Parties: Graham King (Applicant) Victoria Potts (Respondent) Representation: COUNSEL: A M Pickles (Applicant) C R Ireland (Respondent)