[2015] NSWSC 2066

In the matter of Holideck Pty Limited

The plaintiffs permit a building expert appointed in writing by the first defendant for that purpose to enter the property at a reasonable time or times for the purpose of inspecting the works the subject of the proceedings and reporting thereon, such inspection to be permitted at a reasonable time nominated by the said expert on not less than seven days' notice.

Catchwords

PROCEDURE – inspection of property – whether order for inspection will enable proper determination of matter in question in proceedings – where application seeks an order that defendant consent to application for building certificate.

Cases cited

Bland v Levi (2000) NSW ConvR ¶55-935;[2000] NSWSC 161

Legislation cited

(NSW) Civil Procedure Act 2005, § 26
(NSW) Uniform Civil Procedure Rules 2005, § 23.8

Judgment

[1]
HIS HONOUR: By interlocutory application filed on 4 May 2015, the first defendant Holideck Pty Limited seeks orders that the plaintiffs Steve and Anne Mason give access to Unit 3/28 Reddall Street, Manly, to building experts appointed by Holideck for the purpose of inspection and report, and also that the matter be referred for mediation.
[2]
Ultimately, the referral for mediation was not opposed, subject to certain conditions as to the non-availability of the plaintiffs who reside in California to be present in person for that mediation.
[3]
So far as access to the property is concerned, in the course of argument reference has been made to cases in the analogous area relating to the entitlement of a dominant owner of an easement to have the servient owner give any requisite consent to enable the dominant owner's proper use of the easement. In Bland v Levi (2000) NSW ConvR ¶55-935; [2000] NSWSC 161, Young J held that the servient owner had no right to be consulted or to receive information prior to the dominant owner embarking on construction of the easement so as to entitle the servient owner to an injunction until such information was provided. However, Bland v Levi was not a case in which the dominant owner was applying for an order that the servient owner consent to a development or building application.
[4]
In this case, the substantive application is for an order that the first defendant – which is the lessee, but for all relevant purposes equivalent to the owner of the land – make an application for a building certificate in respect of alterations that have been made to the plaintiffs' unit. It seems to me inconceivable that, in the absence of a clear legal right under the Articles, a party could be required to consent to or apply for something of which it does not know the content. In those circumstances, it seems to me at the very least sufficiently arguable that the extent and conformity with the development application and approval of the works to the plaintiffs' unit will be an issue at the final hearing.
[5]
It follows that the condition referred to in (NSW) Uniform Civil Procedure Rules 2005, r 23.8 – that it will enable the proper determination of a matter in question in the proceedings – to make an order under that rule is satisfied. Accordingly, I propose to make an order to that effect.
[6]
The Court therefore orders that:
1. (1)
  The plaintiffs permit a building expert appointed in writing by the first defendant for that purpose to enter the property being Unit 3/28 Reddall Street, Manly, at a reasonable time or times for the purpose of inspecting the works the subject of the proceedings and reporting thereon, such inspection to be permitted at a reasonable time nominated by the said expert on not less than seven days' notice.
2. (2)
  There be liberty to apply on two days' notice by arrangement with my Associate in the event of any difficulty arising in respect of order 1.
3. (3)
  The defendants serve any expert evidence arising out of the said inspection by 20 July 2015.
4. (4)
  Pursuant to (NSW) Civil Procedure Act 2005, s 26, the proceedings be referred for mediation by a mediator.
5. (5)
  If the parties cannot agree on a mediator within seven days, the Joint Protocol described in Practice Note SC Gen 6 and the mediator will be the person appointed under the Joint Protocol.
6. (6)
  The proceedings be adjourned to 27 July 2015 at 10 am in the Corporations Judge Directions List.
7. (7)
  There be liberty to apply on three days' notice, any such notice to specify the issues to be raised and the relief to be sought.
8. (8)
  The plaintiff pay the first defendant's costs of the notice of motion.
[7]
In my view, I can see no sufficient justification for separate representation of the fifth defendant in respect of this motion, and I will not make an order for the fifth defendant's costs in respect of this motion.