Botany Bay City Council v Skyton Developments (Aust) Pty Ltd (in liq) [2016] NSWLEC 20

Land and Environment Court New South Wales

Medium Neutral Citation: Botany Bay City Council v Skyton Developments (Aust) Pty Ltd (in liq) [2016] NSWLEC 20 Hearing dates: 26 February 2016 Date of orders: 26 February 2016 Decision date: 26 February 2016 Jurisdiction: Class 4 Before: Preston CJ Decision: (1) The answer to the question: 'Does the Court have the power to make the orders sought in the applicant's notice of motion filed on 22 September 2015?' is no. (2) The applicant's notice of motion filed on 22 September 2015 is dismissed. (3) The applicant is to pay the third respondent's costs of the applicant's notice of motion and the third respondent's notice of motion. Catchwords: JUDGMENTS AND ORDERS – "liberty to restore" – scope of – court order requiring waterproofing of basement of building – alleged non-compliance – motion seeking further order requiring new waterproofing – power of court to make further order – further order will not implement or enforce compliance with existing court order – further order will impose a new order or substantially vary existing court order – further order beyond power of court pursuant to reservation of liberty to restore Cases Cited: Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201 Katter v Melhem [2015] NSWCA 213; (2015) 325 ALR 351 Phillips v Walsh (1990) 20 NSWLR 206 Category: Consequential orders (other than Costs) Parties: Botany Bay City Council (Applicant) Skyton Developments (Aust) Pty Limited (in liq) (First Respondent) Mr Peter Ruck (Second Respondent) Mr George Andrews (Third Respondent) Owners Corporation Strata Plan 81059 (Fourth Respondent) Representation: Counsel: Mr T S Hale SC (Applicant) Mr I J Hemmings SC (Third Respondent) No appearance for First, Second or Fourth Respondents