Background
Vicki Therese Curran brought Class 4 proceedings in the Land and Environment Court against the owners of 79 Bellevue Road, Figtree, New South Wales and a private certifier, Curtis Prior. Ms Curran sought to have a Complying Development Certificate (CDC) issued on 30 October 2025 for demolition of a dwelling declared invalid. The CDC had been issued by Prior acting through Cert One Building Certifiers and published on 3 November 2025.
On 12 June 2026, Justice Pritchard made consent orders in which the CDC was set aside, the proceedings were dismissed, and the first to fourth respondents (the property owners) were ordered to pay Ms Curran $2,000 in costs. The consent orders included a notation that the fifth respondent (the certifier) had surrendered the CDC on 1 May 2026. Ms Curran agreed to these terms, apparently accepting that the surrender made the proceedings moot.
Following the consent orders, Ms Curran discovered that the property had been placed under contract for sale. She then filed an urgent ex parte motion on 25 June 2026, without notice to the respondents or the purchaser(s), alleging she had been misled into agreeing to the consent orders through fraudulent representation regarding the CDC surrender. She sought an interlocutory injunction to restrain the sale and any works on the property, together with orders to set aside the consent orders, reinstate the proceedings, and pursue allegations of fraud against the respondents’ solicitors.
The Court’s Holding
Beasley J, sitting as Duty Judge, declined to grant any of the relief sought by Ms Curran. Applying the established test for interlocutory injunctions (serious issue to be tried and balance of convenience), the court found that the evidence before it fell short of demonstrating a serious question as to fraudulent representation or misleading of the court. Although Ms Curran produced a 24 June 2026 affidavit alleging coordinated fraud by the respondents’ solicitors and a deliberate post-judgment surrender to “overwrite” the court’s orders, the court was not convinced this evidence raised a serious triable issue. The court also expressed doubt as to whether it possessed jurisdiction to injunct a property sale on the grounds advanced.
On the balance of convenience, the court found that granting the injunction would severely prejudice the vendors and the purchaser(s), whereas the evidence showed only speculative harm to Ms Curran beyond assertions about health risks and possible asbestos. Critically, the court held it would be inappropriate to grant the injunctive relief ex parte given that the allegations involved fraud against the respondents’ solicitors. The court emphasized that procedural fairness required the respondents and their representatives be given the opportunity to be heard and to respond to the fraud allegations. The court also noted that any injunction affecting the sale would require the purchaser(s) to be joined to the proceedings.
Key Takeaways
- Ex parte relief involving fraud allegations will not be granted without notice to the respondents, even in circumstances of claimed urgency.
- The threshold for demonstrating a “serious question to be tried” on fraud claims is not met by allegation alone; evidence must actually persuade the court that a triable issue exists.
- Courts will weigh the balance of convenience in favour of preserving third-party purchasers’ rights when an ex parte injunction would affect contracts for sale.
- Consent orders that resolve proceedings do not preclude later challenge, but the applicant bears the burden of proving fraud or similar grounds.
- Self-represented litigants pursuing fraud allegations in interlocutory proceedings face substantial legal cost exposure and should carefully consider the risks.
Why It Matters
This decision provides important procedural guidance on the limits of ex parte relief in the Land and Environment Court. While consent orders can be challenged if obtained by fraud or deception, Ms Curran’s case illustrates that unsupported allegations—however serious—will not trigger emergency relief without proper notice and opportunity for respondents to respond. The court’s refusal to act on the day of filing, despite claims of urgency (imminent settlement), demonstrates judicial caution against granting injunctive relief that would bind third parties or interfere with contracts based on one-sided submissions.
For environmental law practitioners and self-represented litigants, the decision signals that courts will scrutinize fraud allegations rigorously and that procedural fairness (notice and opportunity to be heard) cannot be bypassed merely because settlement is imminent. The matter was stood over to 3 July 2026 for a hearing before the List Judge, at which point Ms Curran must serve the motion on all respondents and presumably the purchaser(s). The decision also serves as a cautionary note on the cost exposure involved in pursuing interlocutory motions that fail to meet the threshold test.