Bruce v Smale [2015] NSWSC 907

Supreme Court New South Wales

Medium Neutral Citation: Bruce v Smale [2015] NSWSC 907 Hearing dates: 26 February and 11 June 2015 Date of orders: 10 July 2015 Decision date: 10 July 2015 Jurisdiction: Equity Division Before: Robb J Decision: (1) Order pursuant to s 149B (2) of the Civil Procedure Act 2005 (NSW) that these proceedings be transferred to the Land and Environment Court of New South Wales to be heard together with Class 4 Application No. 4091 of 2014.

(2) Order that the costs of the defendant's notice of motion filed on 3 February 2015 be each party's costs in the cause constituted by the proceedings and Class 4 Application No 4091 of 2014. Catchwords: PROCEDURE – motion to transfer proceedings to the Land and Environment Court to be heard concurrently with proceedings first instituted in that Court – whether both proceedings so closely associated as to form part of the same controversy pursuant to s 149B Civil Procedure Act 2005 (NSW) – primary relief sought in Supreme Court proceedings an injunction to restrain the conduct of the Land and Environment Court proceedings – where private rights/obligations arise in circumstances where public interests/obligations under the Environmental Planning and Assessment Act 1979 (NSW) also apply, parties' rights/obligations may not be determined solely by private law principles – undesirable to grant injunction if it effectively prevents party seeking statutory remedy pursuant to the Environmental Planning and Assessment Act – proceedings in this Court directly impinge upon rights of parties in the other proceedings – proceedings arise as part of the one controversy – parity of standing between both Courts – Land and Environment Court is in a better position to determine issues and can preserve plaintiff's rights if it chooses to do so – order to transfer proceedings to Land and Environment Court Legislation Cited: Civil Procedure Act 2005 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Land and Environment Court Act 1979 (NSW) Cases Cited: 363 Military Road Mosman Pty Ltd v Owners Strata Plan 72814 [2012] NSWSC 263 CTI Joint Venture Company Ltd v CRI Chatswood Pty Ltd (in liq) (rec and mgrs app) [2012] NSWLEC 6 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 29 Transport Construction Authority v Parramatta City Council [2010] NSWSC 1168 and Texts Cited: Meagher, Gummow & Lehane's Equity Doctrines & Remedies (5 ed) Category: Principal judgment Parties: Edward Robert Bruce (plaintiff/respondent) Carolyn Joy Smale (defendant/applicant) Representation: Counsel: G Rundle (plaintiff) R Bellamy (defendant)