Australia, Aug. 19 -- New South Wales Land and Environment Court issued text of the following judgement on July 18:
1. Rule 45.2 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) confers a discretion upon this Court to order that proceedings entered in the General List of the Equity Division be instead entered in, inter alia, the Commercial List or the Technology and Construction List.
2. By a notice of motion filed on 19 June 2025, Apex Supply Chain Management (AU) Pty Ltd, seeks such an exercise of the discretion in relation to its proceedings against the defendant, Mr Nasser. In general terms, Apex seeks declaratory and compensatory relief against Mr Nasser, arising out of a lease of premises situated at Milperra, New South Wales.
3. Apex's proceedings neither arise out of a commercial transaction nor involve an issue of particular importance in trade or commerce: UCPR r 45.6(1)-(a). Proceedings which answer neither description might disincline the Court to exercise its discretion to enter them in the list: UCPR r 45.2.
4. In Challenge Bank Ltd v Rain & Horne Commercial Pty Ltd (1989) 17 NSWLR 297 at 305-6, Rogers CJ Comm D observed, by reference to Hunt J's decision in NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585, that the former Commercial Division's "raison d'etre" was the expeditious determination of disputes calling for that Division's specialist commercial expertise. That continues to be the "reason for being" of the Commercial List.
5. In the instant case, Apex seeks numerous declarations that Mr Nasser has breached his obligations as a lessor insofar as he is said to have failed to rectify structural defects in the demised premises, including rainwater ingress and to have taken "temporary possession of the Leased Premises, as between 18 October 2024 and 24 October 2024, thereafter having returned possession to it". Apex also seeks the return of a portion of its rental payments, in circumstances where it has apparently only been able to use part of the demised premises, and compensation for losses allegedly incurred as a result of Mr Nasser's breaches.
6. These are classically matters within the expertise of the Real Property List. For this reason, even if the proceedings were to arise out of a commercial transaction, in the circumstances I would exercise my discretion nonetheless not to enter them in this list: cf Collins v Mead (Supreme Court of New South Wales, Rogers J, 7 March 1990, unreported) at 3.
7. For similar reasons, I do not consider that it would be appropriate to enter the proceedings in the Technology and Construction List, insofar as they do not seem to answer any of the descriptions in r 45.7(1) of the UCPR.
8. Instead, these proceedings ought to be heard in the Real Property List, as they answer the description of a "Real Property Matter" in cl 3(b) of Practice Note SC Eq 12.
9. For these reasons, the appropriate orders are:
1) Apex Supply's notice of motion filed 19 June 2025 is dismissed.
2) Pursuant to r 45.2 of the UCPR, the proceedings are entered in the Real Property List.
3) The proceedings are listed for directions before the Real Property List Judge on 25 July 2025.
Disclaimer: Curated by HT Syndication.
