In brief

The case of BTS Properties (Qld) Pty Ltd v Brisbane City Council [2015] QPEC 2 concerned applications heard by the Queensland Planning and Environment Court. BTS Properties (Qld) Pty Ltd, which was a developer appealing Brisbane City Council's decision to refuse its development application, made an application to strike out notices of election filed out of time by Mr Byrne, Ms Daiga and Mr and Ms Gibson. Mr Byrne, Ms Daiga and Mr and Ms Gibson made a cross-application for an extension of time within which to file the notices of election.

The main issues in dispute were whether sufficient grounds had been established to grant the extension of time, and whether it was in the interests of justice for the court to do so.

The court considered the circumstances under which the various individuals had filed their notices of election late, the impact of the delay, and the extent of prejudice suffered by the developer (if the extension was granted) and the individuals (if extension was not granted). On balance, the court was satisfied that there were sufficient grounds for granting the extension of time and that it was in the interests of justice to do so.

However, the court considered it appropriate that the developer be compensated for the costs it had incurred as a result of the non-compliance with the time limitation and therefore ordered that Mr Byrne, Ms Daiga and Mr and Ms Gibson pay the developer's costs relating to the applications.

Mr Byrne had a genuine interest in the development application and promptly instructed his solicitors to file a notice of election after his return from vacation and being prompted by information given by another unit owner

Mr Byrne owned unit 1 in a complex known as "Solitaire" which was next to the site the subject of the proposed development. As such, he had a genuine interest in the development application which explained his desire to become a party to the appeal. While he resided at a different address, he used the Solitaire address in his submission against the development application.

Consequently, the notice of appeal was sent to the Solitaire address which at the time was vacant. During that period, Mr Byrne was also on a vacation. It was in that context the notice did not get to Mr Byrne for several weeks.

Nonetheless, Mr Byrne promptly instructed his solicitors to file a notice of election after he returned from his vacation and being prompted by information given by another unit owner.

Ms Daiga was an owner occupier of a unit in Solitaire and promptly instructed her solicitors to file the notice of election after she became aware of the appeal

Ms Daiga was an owner occupier of a unit in Solitaire. She was away during the relevant period within which the notice of appeal was sent. However, she arranged for her mail to be collected and taken to her accountant with instructions that mail which appeared to contain accounts should be opened, but mail which appeared to be personal should not be opened.

The letter containing the notice of appeal was not opened and was not seen by Ms Daiga until she checked her mail after 20 November 2014. However, while she was away in Noosa, she was contacted by other members of the body corporate for Solitaire who informed her about the appeal and actions she would need to take to become a party to the appeal. It was by that time she promptly instructed her solicitors to file the notice of election.

Mr and Ms Gibson resided in a unit in Solitaire and promptly instructed the solicitors to file a notice of election after they became aware that they had to act separately notwithstanding the notice was filed in the name of the trustee company which owned the unit

Mr and Ms Gibson resided in a unit in Solitaire while the unit was owned by the trustee company which joined the appeal. Their delay in filing a notice of appeal in their own names was partly explained by the filing of the notice in the name of the trustee company while noting that the submission against the development application was made in their own names. The notice of election in the name of the trustee company was filed late but only by a relatively short time.

It was noted that Mr and Ms Gibson were on vacation in a remote location during the relevant period, but by the time they returned from the vacation, there was still sufficient time to file a notice of election within time. It was explained to the court that Mr Gibson wasted several days seeking advice from the manager of the body corporate of Solitaire as he considered it was appropriate for the body corporate to become a party to the appeal.

After being advised that that was not practical, Mr and Ms Gibson promptly instructed the solicitors to file a notice of election notwithstanding that it was filed in the name of the trustee company.

Court accepted the explanations for the delay were genuine whilst noting that there were deficiencies in each of Mr Byrne, Ms Daiga and Mr and Ms Gibson's explanations

The court noted that the explanation for non-compliance with the time limitation was a relevant consideration in deciding whether to grant an extension of time, while noting that demonstration of an adequate explanation was not a prerequisite.

Although no application for an extension of time was made on the basis that a notice of appeal was not "given" until the recipient returned from holidays, the court by reference to the following passage in the decision of Demiscto Pty Ltd v Brisbane City Council & Ors [2008] QPEC 22, noted that such submission would not have been accepted :

…In modern conditions, it is not acceptable that an entity become effectively incommunicado and exempt from service by closing its office or refraining from collecting mail at the address given for delivery of mail for a month to provide the luxury of a holiday. It is necessary that arrangements be put in place to receive important communications without subjecting the senders of them to inappropriate delay... (at [11])

The court observed that there were deficiencies in each of the explanations provided by Mr Byrne, Ms Daiga and Mr and Ms Gibson, in particular the lack of sufficient arrangements or no arrangements were in place to deal with correspondence while they were on holidays. However, the court accepted that they were genuine and observed that the time limit was missed because of a combination of "ignorance, confusion, misadventure and mismanagement", rather than "wilful disregard".

Court ultimately found that there were sufficient grounds for granting the extension of time and it was in the interests of justice to do so

The court observed that Mr Byrne, Ms Daiga and Mr and Ms Gibson all had an obvious interest in the development application the subject of the appeal. In the event that an extension of time was not granted, they would be prejudiced by not being able to participate in the appeal.

On the other hand, the developer did not identify any prejudice that it would suffer if an extension was granted. Further, as this was an appeal by the developer against council's decision to refuse its development application, no development would occur until the appeal was resolved, so allowing additional parties to join the appeal would not materially change the developer's position in the appeal.

In any case, there were other parties who had joined the appeal in time such that the developer would not have avoided facing a proceeding. As the appeal had not proceeded in any significant way and in light of the above matters, the court was on balance satisfied that there were sufficient grounds for granting the extension of time and it was in the interests of justice to do so.

Court ordered Mr Byrne, Ms Daiga and Mr and Ms Gibson to pay the developer's costs of the applications

The court noted that the application for an extension of time made by Mr Byrne, Ms Daiga and Mr and Ms Gibson was in response to the strike out application brought by the developer.

Given that the developer had to incur costs as a result of the non-compliance with the time limitation, the court considered it appropriate that the developer be compensated for the costs it incurred in the applications. As such Mr Byrne, Ms Daiga and Mr and Ms Gibson were ordered to pay the developer's costs of each of the applications.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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