ZGWH Holdings Pty Limited v Sydney Metro (ABN 12 354 063 515) [2018] NSWLEC 154

Land and Environment Court New South Wales

Medium Neutral Citation: ZGWH Holdings Pty Limited v Sydney Metro (ABN 12 354 063 515) [2018] NSWLEC 154 Hearing dates: 27 September 2018 Date of orders: 27 September 2018 Decision date: 27 September 2018 Jurisdiction: Class 3 Before: Sheahan J Decision: Hearing dates vacated. See orders in par [28] Catchwords: CIVIL PROCEDURE: Application by applicant to vacate hearing dates – claim formulated on a basis now found to be unsound – experts ought have identified that error earlier – inadequate time to now reframe its case in time for hearing – costs orders against applicant. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd [2016] NSWLEC 164 UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 Monti v Roads and Maritime Services [2018] NSWLEC 34 Category: Procedural and other rulings Parties: ZGWH Holdings Pty Limited (Applicant and applicant on motion) Sydney Metro (Respondent and respondent on motion) Representation: Counsel: Mr J Clifton, barrister (Applicant) Mr C D Norton, barrister (Respondent)

Solicitors: Raymond Lee & Co (Applicant) Ashurst Australia (Respondent) File Number(s): 2017/290377

Judgment

Introduction 1. These Class 3 compensation proceedings are currently listed for hearing 3 to 12 December 2018. 2. They concern a site in Bathurst St in Sydney CBD, acquired on 27 January 2017, and have been on foot since late September 2017. 3. By Notice of Motion ("NOM") filed 18 September 2018, the Applicant seeks vacation of the December hearing dates, which were set when dates in August 2018 (set in February 2018) were vacated by Moore J, on the motion of the Respondent, on 25 May 2018. 4. Adjournment or vacation applications fall for consideration in the context of ss 56-60 and 66 of the Civil Procedure Act 2005 ("CPA"), and on the basis of principles laid down by learned justices of the High Court and the Court of Appeal, but each case turns on its own facts and circumstances, and the present application is made by the Applicant in quite unusual circumstances. 5. The Court was favoured with extensive affidavit evidence and other documentary materials, as well as comprehensive written and oral submissions by leading counsel engaged in the substantive matter by the respective parties. All aspects of the relevant CPA considerations were dealt with in the competing submissions. 6. The Applicant relied on affidavits from its town planner, Giovanni Cirillo (18 September 2018), and one of its directors, Shao Han Wang (13 February 2018), and a Statement of Evidence ("SOE") by its architect Geoffrey Mark Bonus (filed 2 August 2018). 7. The Respondent relied on two affidavits from its solicitor, Montana Linkio, sworn on 23 May and 25 September 2018, and her bundle of documents (Exhibit MLL1 to her September affidavit).