Young v King (No 6) [2015] NSWLEC 111

Land and Environment Court New South Wales

Medium Neutral Citation: Young v King (No 6) [2015] NSWLEC 111 Hearing dates: Pre-trial argument 28 August 2014 and 3 September 2014; Hearing dates 9 – 12 September 2014, and 28 – 31 October 2014 Date of orders: 09 July 2015 Decision date: 09 July 2015 Jurisdiction: Class 4 Before: Sheahan J Decision: (1) The applicant's notice of motion in proceedings 03/40417, seeking to have the orders of McClellan J set aside, and the matter re-opened, is dismissed. (2) The applicant's summons in matter 14/40449 is dismissed. (3) The applicant is ordered to pay the respondents' costs of the proceedings in this Court since 8 March 2004, on a party-party basis, as agreed or assessed. (4) Order 3 is stayed for 42 days and the parties are directed to file any notices of motion seeking a different costs order by 20 August 2015. (5) The Evidence Book and all exhibits are returned. Catchwords: PRACTICE AND PROCEDURE — Application under UCPR 36.15(1) to set aside consent orders made in civil enforcement proceedings seeking the removal of allegedly unlawful works and reinstatement of a pre-existing drainage system – remitter from Court of Appeal – undertaking given to construct a retaining wall and install drainage works in accordance with an agreed "solution" formulated by the parties' respective experts – whether the Court had the power at first instance to make the final orders – applicant became dissatisfied with the agreed "solution" – circumstances in which final consent orders may be set aside – whether the Court was misled as to the purport of the solution – whether the parties were mistaken as to the purport of the solution – whether the terms of the solution were uncertain – whether there had been fraud