In brief

The case of Council of the City of Gold Coast v Ashtrail Pty Ltd & Anor [2018] QPEC 29 concerned an application for summary judgement by the Respondents against the Council of the City of Gold Coast (Council) in respect of part of the Council's Originating Application to the Planning and Environment Court. 

The Council, in its Originating Application, sought declarations and enforcement orders in relation to the non-compliance of conditions contained in the Respondents' development permit for a material change of use. The conditions related to requirements for the payment of certain infrastructure contributions, the design and construction of roadworks, footpaths and bikeways and a land dedication, all prior to the commencement of the use of the premises.

The Court dismissed the Respondents' application for summary judgement and considered the following issues in making that finding:

  • whether the Court had power in the circumstances to grant the Respondents' application for summary judgement under rule 293 of the Uniform Civil Procedure Rules (UCPR);
  • whether the Council had no real prospect of succeeding in respect of part of its Originating Application, because:
    • uses under the Respondents' development approval had never started and it lapsed; and
    • the claim for moneys (under conditions 5 and 6 of the Respondents' development approval) was barred by section 10 of the Limitation of Actions Act 1974;
  • whether the Court should exercise its discretion under rule 658 of the UCPR to make an order (which the nature of the case requires), to grant the Respondents' application for summary judgement.

Availability of Summary Judgement

The Court had to determine whether it had power under rule 293 of the UCPR to grant the Respondents' application for summary judgement in respect of part of the Council's Originating Application. 

Rule 293 of the UCPR provides as follows:

"293 Summary judgment for defendant

(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

(2) If the court is satisfied—

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate."

The Respondents argued that rule 3 of the Planning and Environment Court Rules 2010 applied such that rule 293 of the UCPR "extends to proceedings in the Planning and Environment Court commenced by way of Originating Application" (at [14]). 

The Council, on the other hand, submitted that:

  • rule 293 of the UCPR was not available;
  • the operation of rule 293 was "limited to proceedings commenced by way of claim or ordered to continue as if started by claim." (at [15]); and
  • as the Respondents had not filed a notice of intention to defend in the proceedings, the procedural requirements for the Court to give summary judgement under rule 293 of the UCPR had not been met.

The Court referred to the cases of Allingham v Fuller [2013] QSC 81 and LPD Holdings (Aust) Pty Ltd v Russells (a firm) [2017] QSC 45, which made clear that the summary judgement procedure under rule 293 of the UCPR is available only after a defendant has filed a notice of intention to defend. 

In following these decisions, the Court determined that it was not satisfied that it had power under rule 293 of the UCPR to grant the Respondents' application for summary judgement.

The Court also had to determine whether it should exercise its discretion under rule 658 of the UCPR to grant the Respondents' application for summary judgement. The Court considered it appropriate to have regard to the principles which are relevant in determining whether to grant summary judgement in accordance with rule 293 of the UCPR. 

Test for summary judgement 

Under rule 293 of the UCPR, the Court may grant the Respondents' application for summary judgement in respect of part of the Council's Originating Application if the Respondents can demonstrate that the Council has no real prospect of succeeding in respect of that part of the Originating Application, and that there is no need for a trial of that part of the Originating Application. 

The Court noted (at [10]) that "the discretion to order summary judgment should only be exercised with great care and never in circumstances in which there is a real question to be tried" (see Fancourt & Anor v Mercantile Credits Limited [1983] HCA 25) and "proceedings should be determined summarily only in the clearest of cases" (see Deputy Commissioner of Taxation v Salcedo [2005] QCA 227).

Basis 1 - Uses under the development approval had never started and it lapsed

The Respondents' first basis for obtaining summary judgement was that its development approval had never started and it had lapsed. The Respondents relied on the decision in Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd [1995] QCA 300; (1995) 88 LGERA 157 (Pad-Mac decision) and submitted that this decision was binding authority. 

In the Pad-Mac decision, the Court of Appeal had to decide whether the use of premises at a particular point in time was a lawful use. In this case, a town planning consent had been granted subject to conditions being set out in a council determination. A copy of the determination was not attached to or set out in the judgement. 

The only details of the conditions set out in the judgment included category D headed "PRIOR TO COMMENCEMENT OF USE" and category E headed "PRIOR TO COMMENCEMENT OF USE AND THEREAFTER MAINTAINED AT ALL TIMES THAT THE DEVELOPMENT REMAINS IN EXISTENCE". 

The Respondents submitted that because the words "prior to the commencement of the use" was included in each of conditions 5, 6, 10, 12 and 16 contained in the Respondents' development permit, the Pad-Mac decision was directly applicable in this case.

The Respondents relied on the findings made in the Pad-Mac decision about the consent that "Its effect at 25 January 1990 has to be determined by the construction of its terms. In my opinion, the effect of the consent - or Council decision - at 25 January 1990 was to suspend the lawful use of the premises as a shop until at least some of the conditions were performed or otherwise complied with. In other words, the consent of 25 January 1990 gave consent to the use of the premises as a shop at such future time as the material conditions were satisfied" (at 158).

The Court determined (at [50]) that "there is an arguable case that this case is distinguishable from Pad-Mac Pty Ltd v Hotel Wickham Investments Pty Ltd on a number of bases". These included the different legislative regimes applying in each case, and that the approval in this case did not contain the same headings as in the Pad-Mac decision and the conditions need to be construed in the framework of the Respondents' permit.

For these reasons, the Court decided that the matter should not be determined on a summary basis. 

The Court noted that it was not necessary for the Court to finally determine the matter when deciding the summary judgement application and that it just had to be satisfied that the Council had no real prospect of succeeding or that there was no need for a trial.

Basis 2 - The claim for moneys is barred by section 10 of the Limitation of Actions Act 1974

The Respondents submitted that the claim in the Originating Application for orders requiring the payment of monies under conditions 5 and 6 of the Respondents' development approval is a proceeding to recover a sum of money, which is not a penalty or forfeiture and is therefore barred by operation of section 10 of the Limitation of Actions Act 1974

The Court determined that the Respondents' case in relation to this issue was not "the clearest of cases" and should not be determined on a summary basis by the Court. It considered that the Council had at least an arguable case and was entitled to a trial in relation to the issues. 

Some of the issues identified by the Court in the Respondents' submissions in relation to the second basis included the characterisation of the claim as a proceeding to recover a sum of money, whether there was no identifiable recoverable sum, and whether the Court had a discretion to remedy the commission of the offence by other means. 

Conclusion 

The Court determined that it was not satisfied that:

  • it had power under rule 293 of the UCPR to grant the Respondents' application for summary judgement;
  • there was not some real prospect of the Council succeeding at trial; and
  • in the circumstances, it should exercise its discretion to grant the Respondents' application for summary judgement under rule 658 of the UCPR . 

The Court dismissed the Respondents' application.

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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