Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2019] NSWLEC 123

Land and Environment Court New South Wales

Medium Neutral Citation: Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2019] NSWLEC 123 Hearing dates: 7, 8, 9, 12, 14, 15, 19 and 20 August 2019 Date of orders: 21 August 2019 Decision date: 28 August 2019 Jurisdiction: Class 4 Before: Moore J Decision: Noting the giving by the Applicant, by its counsel, of the usual undertaking as to damages, the orders of the Court are: (1) The First and Second Respondents, by themselves, their servants and agents, are restrained, until further order, from carrying out any further works in reliance upon Development Consent DA 136/2012 (as modified) and Development Consent DA 2015.98.1 (as modified) and Construction Certificate No. 16/0475-02 issued on 8 March 2018 for bulk excavation, shoring and piling; and (2) First and Second Respondents are jointly liable to pay, as agreed or assessed, the Applicant's costs of the hearing concerning Prayer 10 of the Applicant's Notice of Motion filed in Court on 7 August 2019 unless my Associate is notified by 4.30pm on Friday 13 September, by a party, that that party wishes to be heard to propose some different costs order. Catchwords: INTERLOCUTORY INJUNCTION - matters requiring consideration - concession by relevant Respondents that there were serious issues to be tried - status of plans for which construction is being undertaken, but which were not the plans for which the relevant construction certificate was issued - process by which new plans were "approved" by certifier without modification to the existing construction certificate or the issuing of a new construction certificate - requirement for a voluntary planning agreement prior to the issue of a construction certificate - no voluntary planning agreement entered into but a construction certificate issued - need for protection of the integrity of the planning system - no functional evidence of the extent of financial impact on the First and Second Respondents if an injunction was to be issued - appropriate to issue an injunction restraining further construction until further order MATTER REFERRED TO REGULATORY AUTHORITY - issues arising from the evidence concerning the appropriateness or otherwise of the action of the building certifier appointed for the proposed development - copy of this judgement and relevant exhibits referred to the President of the Building Professionals Board SECOND MATTER REFERRED TO REGULATORY AUTHORITY - possible stamp duties matters arising out of the evidence concerning the purchase price of the development site - oral and written evidence given that the purchase price of the development site was $23 million - transfer certificate shows that the declared purchase price was approximately $9.9 million - initial suggestion by witness that the balance was to be accounted for by the transfer of residential units in the development (when completed) to the vendor of the development site - attempts by the witness to withdraw this statement and offer alternative explanations for the discrepancy in the stated purchase prices - copy of this judgement and relevant exhibit referred to the Chief Commissioner for State Revenue Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Carlino v Leichhardt Municipal Council (2005) 144 LGERA 235; [2005] NSWLEC 198 Gittany Constructions Pty Ltd v Sutherland Shire Council (2006) 145 LGERA 189; [2006] NSWLEC 242 Mosman Municipal Council v Menai Excavations Pty Limited (2002) 122 LGERA 89 Category: Procedural and other rulings Parties: Omaya Investments Pty Ltd (Applicant) Dean Street Holdings Pty Ltd (First Respondent) TQM Design & Construct Pty Ltd (Second Respondent) John Patrick Elias (Third Respondent) Maurice Freixas (Fourth Respondent) Burwood Council (Fifth Respondent) Representation: Counsel: Mr T Robertson SC/Mr J Lazarus, barrister (Applicant) Mr A Pickles SC/Ms L Nurpuri, barrister (First to Third Respondents) Submitting Appearance (Fourth Respondent) Mr R White, barrister (Fifth Respondent)