Cumberland Council v Cando Management and Maintenance Pty Limited [2017] NSWLEC 50

Land and Environment Court New South Wales

Medium Neutral Citation: Cumberland Council v Cando Management and Maintenance Pty Limited [2017] NSWLEC 50 Hearing dates: 28 April 2017 Date of orders: 03 May 2017 Decision date: 03 May 2017 Jurisdiction: Class 4 Before: Sheahan J Decision: See [41] Catchwords: PRACTICE AND PROCEDURE: Application to file a cross-summons out of time – change of counsel – interests of justice – costs thrown away – costs of motion – directions. Category: Procedural and other rulings Parties: Cumberland Council (Applicant) Cando Management and Maintenance Pty Limited (Respondent) Representation: Counsel: Ms J McKelvey, barrister (Applicant) Mr P Tomasetti, SC (Respondent)

Solicitors: Sparke Helmore Lawyers (Applicant) Sterling Legal (Respondent) File Number(s): 2016/150312

Judgment

Introduction 1. This case is presently listed for hearing on 26 – 27 June 2017, but, as a result of a recent change in senior counsel, the applicant seeks leave to file a cross-summons out of time. 2. If that leave is granted, the vacation of the June hearing dates becomes inevitable. 3. The Council helpfully provided the Court with a detailed chronology, to which many relevant documents were attached in a tabbed bundle. 4. The subject development is a completed, but idle, multi-unit residential complex at 527 Woodville Road, Guildford, comprising nine townhouses and basement car parking. It is the subject of a Court-granted consent, dated July 2004. 5. On 2 July 2015, the then Parramatta City Council commenced these Class 4 proceedings, and filed detailed Points of Claim ("POC"). It sought one of two alternative suites of relief, both of which included declarations, restraining orders, and an order that the Respondent demolish the development. 6. The Respondent filed Points of Defence ("POD") on 11 September 2015, and the Council filed several affidavits later in 2015. 7. A central issue in this case is whether or not the July 2004 consent lapsed. 8. In its POC, Council acknowledged (1) the Respondent's efforts during 2015 to rectify its position; and (2) Council's rejection of the Respondent's Building Certificate and Modification Applications. 9. The Respondent has experienced financial pressures (affidavit J J Refalo, 17 February 2017, pars 7 to 10, and some of its annexures). However, its director and his family hold "Donut King" franchises, and come into funds from time to time. 10. In his affidavit of 12 April 2017, Mr Refalo gives a detailed and candid history of the project, his dealings with Council, his exposure to holding costs etc., and his discretion arguments against demolition.