Vincent Land Pty Ltd v Maitland City Council [2017] NSWSC 719

Supreme Court New South Wales

Medium Neutral Citation: Vincent Land Pty Ltd v Maitland City Council [2017] NSWSC 719 Hearing dates: 6 June 2017 Date of orders: 06 June 2017 Decision date: 06 June 2017 Jurisdiction: Common Law Before: Davies J Decision: 1. In accordance with section 149B of the Civil Procedure Act 2005 (NSW) these proceedings be transferred to the Land and Environment Court of NSW and subject to any further order of that Court, be heard together with Land and Environment Court Proceedings Number 16/357137.

2. Costs of the Motion are the parties' costs in the cause. Catchwords: PROCEDURE – courts – transfer of proceedings between courts – proceedings commenced in Supreme Court seeking relief not available in the Land and Environment Court – related proceedings already commenced in the Land and Environment Court – both proceedings dealing with different aspects of the same subject matter – Supreme Court proceedings transferred Legislation Cited: Civil Procedure Act 2005 (NSW Category: Procedural and other rulings Parties: Vincent Land Pty Ltd (Plaintiff) Maitland City Council (Defendant) Representation: Counsel: C Ireland (Plaintiff) M Najem (Defendant)

Solicitors: Coutts Mallik Rees Lawyers (Plaintiff) Lindsay Taylor Lawyers (Defendant) File Number(s): 2017/156166

Judgment 1. The Plaintiff commenced proceedings in this Court on 24 May 2017 by summons. Those proceedings seek three prayers for relief in the nature of declarations concerning decisions of the Defendant. Those declarations are said, in substance, to amount to judicial review of the decisions referred to. The summons also seeks damages for trespass and an order in the nature of an injunction. 2. The proceedings, in substance, concern land which is owned by the Plaintiff in East Maitland, and in respect of which it is asserted that the Council has wrongly trespassed on the Plaintiff's land, partly at least, by creating a road over part of the land to access a waste facility. 3. The Plaintiff had commenced other proceedings in the Land and Environment Court on 29 November 2016. Those proceedings relate to a development consent for the Defendant Council's waste facility, and a further consent for a recycling facility, both of which are connected with the road access through the Plaintiff's land that is identified in the Supreme Court proceedings. The Land and Environment Court does not have jurisdiction to grant judicial review, at least in the form identified in the summons filed in this Court, nor does it have jurisdiction to deal with a Common Law claim for trespass. 4. On that basis, the Plaintiff seeks an order under s 149B of the Civil Procedure Act 2005 (NSW) for the transfer of the proceedings in this Court to the Land and Environment Court. That section provides two bases for transfer: The first in subsection (1) is that it is more appropriate for the proceedings to be heard in the Land and Environment Court. The second in subsection (2) is that there are related proceedings pending in the Land and Environment Court, and that it is more appropriate for the Supreme Court proceedings to be heard with those related proceedings. 5. The Defendant does not oppose the transfer. 6. In my opinion, s 149B(2) is the appropriate basis for the transfer in the present case. The proceedings in the Land and Environment Court are clearly related proceedings. Both concern the Plaintiff's land and effects on that land by reason of the waste and recycling facilities and the road created by the Council. There is the possibility if the proceedings are conducted separately in two courts, that there may be inconsistent judgments. 7. Section 149E of the Civil Procedure Act gives to the transferee court all the jurisdiction of the transferor court in relation to the proceedings in respect of which the transfer order is made. 8. Accordingly, I make these orders: 1. In accordance with section 149B of the Civil Procedure Act 2005 (NSW) these proceedings be transferred to the Land and Environment Court of NSW and subject to any further order of that Court, be heard together with Land and Environment Court Proceedings Number 16/357137. 2. Costs of the Motion are the parties' costs in the cause