Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2019] NSWSC 1199

Supreme Court New South Wales

Medium Neutral Citation: Macquarie International Health Clinic Pty Ltd v Sydney Local Health District [2019] NSWSC 1199 Hearing dates: 18, 19, 20, 21, 25, 26 March and 2 April 2019 Date of orders: 12 September 2019 Decision date: 12 September 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Dismiss the plaintiff's fourth amended statement of claim. (2) Declare that each of the following notices was validly issued by the defendant to the plaintiff: (a) notices of default dated 20 February 2017 and 7 April 2017 issued under the Construction Deed dated 2 December 1996; (b) notice of termination dated 17 October 2017 issued under the Construction Deed dated 2 December 1996; (c) notices of default dated 20 February 2017 and 7 April 2017 issued under registered lease no. 3553375Q dated 2 December 1996 in respect of the real property comprising Folio Identifier 12/809663; (d) notice of termination dated 17 October 2017 issued under registered lease no. 3553375Q dated 2 December 1996 in respect of the real property comprising Folio Identifier 12/809663; (e) notices of default dated 20 February 2017 and 7 April 2017 issued under registered lease no. 3553373 U in respect of the real property comprising Folio Identifier 11/809663; (f) notice of termination dated 17 October 2017 issued under registered lease no. 3553373U in respect of the real property comprising Folio Identifier 11/809663; (g) notices of default dated 20 February 2017 and 7 April 2017 issued under registered sub-lease no. 355374S dated 2 December 1996 in respect of the defendant's estate as tenant in common the tenancy of the registered lease no. 3553373U; and (h) notice of termination dated 17 October 2017 issued under registered sub-lease no. 355374S dated 2 December 1996 in respect of the defendant's estate as tenant in common of the tenancy of the registered lease no. 3553373. (3) Judgment for possession of the whole of the land comprising Folio Identifier 11/809663 and Folio Identifier 12/809663 located at the rear of Royal Prince Alfred Hospital in Missenden Road, Sydney, New South Wales. (4) Leave to issue a writ of possession forthwith, subject to any application for a stay. (5) Reserve the question of costs to be dealt with, on the papers if possible, following brief written submissions to be filed by the parties within 14 days. Catchwords: ENVIRONMENT AND PLANNING — Building approval – whether the building approval had lapsed – "substantial physical commencement" test in s 104 of the Local Government Act 1993 (NSW) – whether there has been some positive unequivocal step indicating that construction of the hospital has been commenced and that some substantial part of the works has been physically commenced