The Council, with the Water Authority's complicity, sealed the plans of subdivision for both Tylden Rd and Woodleigh Heights in full knowledge that the services were not present and there was no lawful means of compelling the provision of those services thereby enabling the developer to sell before he was lawfully entitled to. |
The "causes of action" (Gravamen)
(Gravamen is the grievance complained of; the substantial cause of the action)
The "causes of action" in the 2005 proceeding are straight forward and are summarised in my affidavit to the Court and clearly set out in the Statement of Claim.
The "causes of action" are summarised at paragraph 55(b) of my affidavit as "My present cause of action is that the Council did in breach of its specific duty seal the residential series of plans and the industrial series of plans and the plans of cluster subdivision in full knowledge that the allotments thereby created were unusable due to a lack of services and in full knowledge that there was no lawful means to compel or cause construction of those services in order to make the allotments useable." [text version here] [pdf version here]
In relation to Tylden Rd, there is one and one only allegation giving rise to this assertion and that allegation is found at paragraphs T5, T6 and T7 of the Amended Statement of Claim. This allegation is that the Council "omitted" to serve the Notice of Requirement related to the 18-lot plan of subdivision which it had considered on 20th February 1980, and that it did not further process that 18-lot plan but instead sealed the series of 2-lot plans for the purpose of avoiding the "effect" of section 9 of the Sale of Land Act and the "effect" of section 97 of the Transfer of Land Act while recklessly indifferent to, or knowing full well, that the services were not present and there was no lawful means of compelling construction of those services. The Notices of Requirement that were purported to be issued in relation to each of the contrived plans were each unlawful as there was no resolution of the Council to impose a requirement in relation to any one of these plans.
In relation to Woodleigh Heights, there is also one and one only allegation giving rise to that assertion and that allegation is found at paragraphs W8 and W10(b) of the Amended Statement of Claim. These paragraphs allege that, for the purpose of avoiding the "effect" of section 9 of the Sale of Land Act, the Council sealed the plans of cluster subdivision while recklessly indifferent to or knowing full well that no reticulated water supply system had been installed in accord with condition 8 of planning permit 2191 or at all and there was no lawful means of compelling construction of that water supply system. That water supply was not present because, although the onsite lake and tanks existed for all to see, the water mains had not been installed/laid to take the water to the blocks. That the water mains had not been laid was expressly set out in my affidavit. [see paragraph 40 at page 8]
The "cause of action" in relation to Tylden Rd arises from the fact that the Notice of Requirement referred to in the Council's minutes of 20th February 1980 in relation to the 18-lot plan was never either issued or served AND the Council sealed the "contrived" series of plans in breach of its statutory obligation to refuse to seal those plans. (Because the Council did not serve the Notice of Requirement there was no means to compell construction of the roads and water mains.)
The "cause of action" in relation to Woodleigh Heights was that the reticulation mains defined in the plans and submissions referred to in clause 8 of the planning permit had not been installed AND the Council sealed the plans in breach of its statutory obligation to refuse to seal those plans. ( Here the Council had not resolved to serve a Notice of Requirment so once the plans were sealed there was no means to compell construction of the water mains.)
These are ANDs, they are not ORs. - This is a critical concept. Manifestly sealiing of plans per se, "unlawful" or not, does not give rise to a cause of action. Similarly if the plans were lawfully sealed in the circumstance where the required services were not present and there were no lawful means of compelliing provision of those services then there would also be no "cause of action". Both aspects must be present.
Each of these "causes of action" facilitated avoidance of the "effect" of section 9 of the Sale of Land Act 1962 and in the case of Tylden Rd the "cause of action" also facilitated avoidance of the "effect" of section 97 of the Transfer of Land Act. The "causes of action" are not in the fact that the sealing gave rise to these avoidances.
Avoiding the "effect" of section 9 of the Sale of Land Act has ZERO to do with "unlawful" 2-lot plans of subdivision as falsely represented by the lawyers for the Council [see Lying Lawyers Part One] and as carelessly and negligently represented by Middleton [see Middleton page]..
The remainder of the allegations set out in the Amended Statement of Claim in respect to both Tylden Rd and Woodleigh Heights are allegations showing a continuous course of misconduct demonstrating male fides (bad faith) of the Council and Water Authority. These include such things as the unlawful "Water Supply Agreement" and the series of plans which were contrived to avoid a "simplistic view" of the literal provisions of section 9 (as distinct from "effect" of) of the Sale of Land Act.
No diligent lawyer or judge could construe the "causes of action" as being anything to do with "unlawful plans of subdivision" and/or "unlawful" sealing per se, or in the case of Woodleigh Heights, as anything to do with the manifestly unlawful 1982 "Water Supply Agreement" or water provided in purported pursuance of that agreement.
The Strike-out Application
After I issued the 2005 proceeding, the lawyers for the Council and Water Authority made an application to the Court to strike the proceeding out before trial.
The grounds for the strike-out application were that the "causes of action":
- were known to me too long ago.
- had been alleged in previous proceeding.
- could have been alleged in previous proceedings.
- were the subject of "Terms of Settlement" (releases) in previous proceedings.
The grounds for the strike-out application did not include a denial of the "causes of action".
The "causes of action" were clearly set out in my statement of claim, so the assertion that the causes of action were known to me too long ago or could have been alleged earlier includes an admission as to those "causes of action".
The "cause of action" in the 1995 Woodleigh Heights proceeding
The "cause of action" in the 1995 Woodleigh Heights proceeding was that the 1978 water supply was complete to the extent of the lake, rising mains, header tanks and water mains and that 1978 "reticulated water supply" was an approved water supply AND that I had an entitlement to that water supply and reticulation system AND that the Council and Water Authority had fraudulently concealed that the 1978 "reticulated water supply" was an approved "reticulated water supply" and that my land was entitled to that water supply. [see writ here] [complete Amended Further Statement of Claim here]
The "cause of action" in the 1988 Tylden Rd proceeding
The "cause of action" in the 1988 Tylden Rd proceeding was that the Council had served a Notice of Requirement requiring the construction of roads and evidence that a water supply agreement had been entered into but had not served a Notice of Requirement enabling the Council to either hold or call upon my bank guarantees. This was a proceeding in mistake of law. There was no allegation at all as to misfeasance, fraud or any other wrongdoing. [see Amended Statement of claim paragraph 7 and paragraph 20] [compete Amended Statement of Claiim here]
The causes of action in the previous proceedings and the causes of action in the 2005 proceeding are mutually exclusive
In relation to Tylden Rd, the allegation "the Council served a Notice of Requirement requiring the construction of roads" precludes an allegation that that "the Council omitted to serve a Notice of Requirement requiring the construction of roads".
In relation to Woodleigh Heights, the allegation "the principal mains were laid and the 1978 reticulated water supply was present" precludes the allegation "the principal water mains were not laid in 1979 and the 1978 reticulated water supply was not present".
This fundamental logic precludes the numbers 2, 3 and 4 of the grounds for strike-out. The "causes of action" in the 2005 proceeding:
- were not alleged in the previous proceedings, the antithesis was alleged.
- could not have been concurrently alleged in the previous proceedings, one cannot concurrently assert a thing and its antithesis, i.e. the car is there is not there.
- were not the subject of "releases" signed in the previous proceedings because a release relating to a subject cannot include the antithesis of the subject.
This then only leaves us with ground number 1, that I knew about the "causes of action" too long ago and that they were not concealed from me.
How the lawyers dealt with that is found at the Master Efthim page and elsewhere on this website.
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