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Sunland Group Limited v Gold Coast City Council (No. 2)[2018] QPEC 28

Sunland Group Limited v Gold Coast City Council (No. 2)[2018] QPEC 28

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunland Group Limited & Sunland Developments No 22 Pty Ltd v Gold Coast City Council (No. 2) [2018] QPEC 28

PARTIES:

SUNLAND GROUP LIMITED

(appellant and applicant)

AND

SUNLAND DEVELOPMENTS NO 22 PTY LTD

(applicant)

v

GOLD COAST CITY COUNCIL

(respondent)

FILE NO/S:

321 of 2016, 323 of 2016, 4 of 2017, 1497 of 2017 and 2213 of 2017

DIVISION:

Planning and Environment

PROCEEDING:

Appeals and Originating Application

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

24 May 2018

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2018, further evidence received 1 May 2018 and further submissions on 16 May 2018

JUDGE:

Kefford DCJ

ORDER:

1. With respect to each appeal, I order:

(a) the application filed by Council on 27 October 2017 be dismissed;

(b) Sunland Group Limited is granted leave to discontinue the proceeding;

(c) there be no order as to costs.

2. Council’s application for summary determination of the application for declarations in paragraphs 6(e) and 6(f) of the Amended Originating Application 1497 of 2017 is granted.

3. Council’s application for summary determination of the relief sought in paragraph 6(d) of the Amended Originating Application is dismissed.

4. Liberty to the parties to apply for further orders and directions in Originating Application 1497 of 2017.

CATCHWORDS:

PROCEDURE – PLANNING AND ENVIRONMENT COURT PROCEDURE – PROCEDURE UNDER RULES OF COURT – where council applied under r 293 of the Uniform Civil Procedure Rules 1999 for summary judgment of part of an originating application and part of appeals against an infrastructure charges notice – where council applied, in the alternative, under r 171 of the Uniform Civil Procedure Rules 1999 for parts of the prayer for relief in an originating application to be struck out and grounds in notices of appeal against an infrastructure charges notice to be struck out – whether the court has power to grant summary judgment under r 293 – whether the court has power to order strike out under r 171 – whether the court has jurisdiction to make the declarations sought – whether issues raised in the appeals are raised impermissibly

LEGISLATION:

Planning and Environment Court Rules 2010 (Qld), r 3

Sustainable Planning Act 2009 (Qld), s 456, s 478, s 627, s 637, s 670, s 677, s 880

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293

CASES:

Allingham v Fuller  [2013] QSC 81, followed

Basha v Basha [2010] QCA 123, cited

Bolton Property Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135; [2009] 2 Qd R 202, applied

Cornerstone Properties Ltd v Caloundra City Council & Anor [2005] QPELR 96, approved

CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1, applied

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232, applied

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, applied

Fancourt & Anor v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, applied

General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125, applied

Haggarty v Wood (No 2) [2015] QSC 244, cited

Hamill & Ors v Brisbane City Council & Pretirement Resorts Pty Ltd [2004] QPEC 30; [2005] QPELR 23, not followed

LPD Holdings (Aust) Pty Ltd v Russells (a firm) [2017] QSC 45, followed

Magrath v Goldsborough Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121, cited

Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233; [2015] 1 Qd R 476, cited

Netstar Pty Ltd v Caloundra City Council [2004] QCA 296; [2005] 1 Qd R 287, applied

Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119; [2011] 2 Qd R 114, applied

Plant Mart Pty Ltd v Gold Coast City Council [2004] QPEC 88; [2005] QPELR 385, not followed

Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 Qd R 259, applied

Shergold v Turner [2002] HCA 19; (2002) 209 CLR 126, cited

Stevenson Group Investments Pty Ltd v Nunn [2012] QCA 351; [2013] QPELR 1, distinguished

Rich v CGU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856, applied

Theo v Logan City Council [2011] QPEC 103; [2012] QPELR 78, not followed

COUNSEL:

S Doyle QC with S J Webster for the appellant and applicant

M M Stewart QC with M F Johnston for the respondent on 28 March 2018

R Bain QC with M Batty for the respondent on 16 May 2018

SOLICITORS:

Holding Redlich for the appellant and applicant

Hopgood Ganim for the respondent

TABLE OF CONTENTS

Background............................................................................................................................................................................4

The relief sought in paragraph 6 of the Amended Originating Application...................................................................7

Relevant principles re summary judgment........................................................................................................................9

Relevant principles re strikeout........................................................................................................................................12

The availability of summary judgment or strike out in this proceeding......................................................................13

Applicability of r 293 - summary judgment.................................................................................................................13

Availability of r 171 - strikeout......................................................................................................................................16

Inherent jurisdiction......................................................................................................................................................16

Issues to be determined...................................................................................................................................................17

Summary determination of paragraphs 6(e) and (f) of the Amended Originating Application re estoppel..............................................................................................................................................................................18

Summary determination of paragraphs 6(c) of the Amended Originating Application re infrastructure agreement..........................................................................................................................................................................23

Summary determination of “so unreasonable” grounds in the appeals against the infrastructure charges notices.................................................................................................................................................................................25

Conclusion..........................................................................................................................................................................26

Background

  1. [1]
    On 28 March 2018, I heard an application by Sunland Group Limited and Sunland Developments No 22 Pty Ltd (collectively referred to herein as “Sunland”) for determination of its primary relief in paragraphs 1 to 5 of its Originating Application No. 1497 of 2017 at a preliminary stage. 
  1. [2]
    On 4 May 2018, I delivered my reasons for judgment in Sunland Group Limited & Sunland Developments No 22 Pty Ltd v Gold Coast City Council [2018] QPEC 22 and granted the primary relief sought by Sunland, namely declarations that five infrastructure charges notices issued by Gold Coast City Council (“Council”) did not comply with s 637(2) of the Sustainable Planning Act 2009 (Qld) and were not an infrastructure charges notice under that Act.
  1. [3]
    On 28 March 2018, I also heard several applications in pending proceeding filed by Gold Coast City Council (“Council”).
  1. [4]
    With respect to relief sought in the alternative in the declaratory proceedings instituted by Sunland, Council applied:[1]
  1. (a)
    under r 293 of the Uniform Civil Procedure Rules 1999, for summary judgment, insofar as the Originating Application seeks declarations as to an alleged estoppel and an alleged infrastructure agreement; or, in the alternative
  1. (b)
    under r 171 of the Uniform Civil Procedure Rules 1999, for strike out of particular paragraphs from the Originating Application, which paragraphs contain allegations with respect to an alleged estoppel and an alleged infrastructure agreement.
  1. [5]
    With respect to each of Sunland’s appeals against the infrastructure charges notice, Council applied:[2]
  1. (a)
    under r 293 of the Uniform Civil Procedure Rules 1999, for summary judgment, insofar as each appeal is made on the ground in s 478(2)(a) of the Sustainable Planning Act 2009 that the charge in the notice is so unreasonable that no reasonable local government could have imposed it; or, in the alternative
  1. (b)
    under r 171 of the Uniform Civil Procedure Rules 1999, for strike out of the paragraph in each appeal that alleges that the charge was so unreasonable that no reasonable local government could have imposed it.
  1. [6]
    Separate written submissions were filed by each party with respect to:
  1. (a)
    Sunland’s application for its primary relief concerning the validity of the infrastructure charges; and
  1. (b)
    Council’s applications for summary judgment or strike out.
  1. [7]
    As I observed in Sunland Group Limited & Sunland Developments No 22 Pty Ltd v Gold Coast City Council [2018] QPEC 22 at [101], Council’s applications for summary judgment, or in the alternative strike out, relate to:
  1. (a)
    relief expressed in the Amended Originating Application to be in the alternative to the relief sought in paragraphs 1 to 5 of the prayer for relief in Sunland’s Amended Originating Application; and
  1. (b)
    appeals that Sunland has indicated an intention to discontinue in the event that this court makes the declarations in paragraphs 1 to 5 of the prayer for relief in Sunland’s Amended Originating Application.
  1. [8]
    Upon delivering my reasons with respect to Sunland’s application, I invited further submissions about whether there was a need to determine Council’s applications.
  1. [9]
    On 16 May 2018, Sunland provided further submissions.[3] 
  1. [10]
    With respect to each appeal proceeding, Sunland submits the following orders should be made:

“1. The application filed by the Respondent on 27 October 2017 be dismissed.

  1.  Sunland Group Limited is granted leave to discontinue the proceeding.
  1.  There be no order as to costs.”
  1. [11]
    It submits that the declarations of invalidity mean there is no longer anything capable of being appealed and it follows that Council’s application in relation to the appeal is no longer relevant (and so should be dismissed) and the appeal itself should be discontinued.
  1. [12]
    Council opposes the orders being made on the basis that it intends to file an application for leave to appeal this court’s declarations. It submits that the appeals should be stayed, rather than discontinued.
  1. [13]
    Sunland submits that Council’s position treats this court’s judgment as merely provisional. I agree. With respect to each appeal, I intend to make orders in the terms requested by Sunland.
  1. [14]
    With respect to the Originating Application, both Sunland and Council submit that it is appropriate to determine Council’s applications.
  1. [15]
    Even though:
  1. (a)
    the relief the subject of Council’s application is expressed to be relief sought in the alternative; and
  1. (b)
    Sunland has been granted its primary relief,

Sunland submits that the other declarations are concerned with the parties’ legal rights and obligations for infrastructure charges and credits relating to the Lakeview at Mermaid development beyond the specific infrastructure charges notice given to date.  It submits that the relief does not fall away.

  1. [16]
    Sunland further submits that the relief is not merely hypothetical. It submits that it is foreseeable that the declarations sought as alternative relief will produce consequences for the parties as:
  1. (a)
    the Lakeview at Mermaid development is a multi-stage, ongoing development.  Sunland will be required to seek further development permits and Council will have to consider imposing further infrastructure charges;
  1. (b)
    the parties are in present dispute about Council’s power and obligation to recognise credits for future development applications.  That dispute was not resolved by this court’s decision on 4 May 2018;
  1. (c)
    the declaration sought under paragraph 6(d) of the Amended Originating Application, for example that the parties have entered into a binding agreement which will regulate their future conduct, is the kind of declaration that courts are often asked to make, and which are not treated as hypothetical; and
  1. (d)
    the other declarations about the proper construction of the Planning Act 2016 and the operation of estoppels will similarly have foreseeable (and practical) consequences for the parties.
  1. [17]
    Council did not dispute these matters.
  1. [18]
    Both Sunland and Council submit that it is appropriate for the court to deliver a decision on Council’s application filed 27 October 2017 in the Originating Application insofar as it relates to paragraphs 6(d), 6(e)(ii) and 6(f)(ii) of the Amended Originating Application.

The relief sought in paragraph 6 of the Amended Originating Application

  1. [19]
    Paragraph 6 of the prayer for relief in the Amended Originating Application is as follows:

“Declarations as the Respondent’s powers and duties

6 Further and alternatively, declarations that:

  1. (a)
    on the proper construction of the SPA the Respondent had power under section 880(3)(b)(ii) to collect infrastructure contributions calculated under and in accordance with Conditions 13 to 16 of the Preliminary Approval for infrastructure for development authorised by:
  1. (i)
    development permits for MCU201501860, ROL2015000458, ROL201600005 and ROL201600384; and
  1. (b)
    on the proper construction of section 286(2) of the Planning Act 2016 (Planning Act) the Respondent has power to collect infrastructure contributions calculated under and in accordance with Conditions 13 to 16 of the Preliminary Approval dated 3 May 2007 for development authorised by future permits given for applications referred to in Conditions 13 to 16 of the Preliminary Approval.
  1. (c)
    further and alternatively:
  1. (i)
    on the proper construction of the SPA, the Respondent has no power to issue an infrastructure charges notice under section 635 of the SPA for infrastructure for development authorised by:
  1. (A)
    development permits for MCU201501860, ROL2015000458, ROL201600005 and ROL201600384; and
  1. (ii)
    on the proper construction of the Planning Act, the Respondent has no power to issue an infrastructure charges notice under section 119 of the Planning Act for infrastructure for development authorised by future permits given for applications referred to in Conditions 13 to 16 of the Preliminary Approval;
  1. (d)
    alternatively to (a) to (c):
  1. (i)
    the Respondent has entered into an infrastructure agreement with the Applicants or alternatively one of them under section 677 of the SPA, including on terms that the Respondent will:
  1. (A)
    apply credits of 5,564.9 equivalent tenements as offsets for infrastructure charges or contributions for development authorised by those approvals (under Conditions 15 and 16 of the Preliminary Approval);
  1. (B)
    not assess contributions and recognize credits under the charging regime in place at the time of giving an approval (meaning the regime of adopted charges under Chapter 8 of the SPA as amended from time to time).
  1. (ii)
    pursuant to section 676(1) of the SPA, the infrastructure agreement prevails over the infrastructure charges notices purportedly given in respect of the development permits for MCU201501860, ROL2015000458, ROL201600005 and ROL201600384;
  1. (e)
    alternatively to (c) to (d):
  1. (i)
    a declaration that the Council is estopped from recovering infrastructure charges or contributions otherwise than under section 880(3)(b)(ii) of the SPA in accordance with Conditions 13 to 16 of the Preliminary Approval for infrastructure for development authorised by:
  1. (A)
    development permits for MCU201501860, ROL2015000458, ROL201600005 and ROL201600384; and
  1. (ii)
    a declaration that Council is estopped from recovering infrastructure charges or contributions otherwise than in accordance with Conditions 13 to 16 of the Preliminary Approval (as permitted by section 286(2) of the Planning Act) for infrastructure for development authorised by future permits given for applications referred to in Conditions 13 to 16 of the Preliminary Approval;
  1. (f)
    alternatively to (c) to (e), a declaration that the Council is estopped from denying that there are credits of 5,564.9 equivalent tenements available as offsets against infrastructure charges or contributions for development authorised by:
  1. (i)
    development permits for MCU201501860, ROL2015000458, ROL201600005 and ROL201600384; and
  1. (ii)
    future permits given for applications referred to in Conditions 13 to 16 of the Preliminary Approval.”

Relevant principles re summary judgment

  1. [20]
    Council seeks summary judgment, pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld), made applicable, it contends, by r 3 of the Planning and Environment Court Rules 2010 (Qld).
  1. [21]
    Rule 3 of the Planning and Environment Court Rules 2010 provides:

“3 Application of rules

  1. (1)
    These rules apply to proceedings in the court.
  1. (2)
    If these rules do not provide for a matter in relation to a proceeding, or proceedings, in the court and the rules applying in the District Court would provide for the matter in relation to a proceeding, or proceedings, in the District Court, the rules applying in the District Court apply for the matter in the court with necessary changes.”
  1. [22]
    Rule 293 of the Uniform Civil Procedure Rules 1999 provides:

“293 Summary judgment for defendant

  1. (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.
  1. (2)
    If the court is satisfied -
  1. (a)
    the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
  1. (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.”

  1. [23]
    Under r 293 of the Uniform Civil Procedure Rules 1999, an applicant for summary judgment must demonstrate that the other party has no real prospect of succeeding on all or part of the proceeding and there is no need for trial of that part of the proceeding.
  1. [24]
    A large body of authority now establishes, under the contemporary principles of statutory interpretation, the legal meaning of the expression “no real prospect of succeeding”.  The Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232 provides a useful collection and analysis of those authorities and the proper construction of those terms.  In that case, Williams JA, with whom McMurdo P and Atkinson J agreed, held at 234-7:

[10] On the hearing of the appeal counsel for the appellant referred to Gray v. Morris [2004] 2 Qd.R. 118 and in particular observations by Chesterman J. at 126 and 127 that the onus was on the applicant for summary judgment to establish that the defence was “bound to fail”, “one which cannot possibly succeed”, one which had “no prospect of success” and/or one that was “hopeless”. Those words were used in the context of reasoning by that learned judge based on the proposition that the Uniform Civil Procedure Rules 1999 (“UCPR”) had not effected any substantial change in the approach to summary judgment from that which applied under the former Rules of the Supreme Court.

[11] With respect that approach is not correct. Rule 292 and r. 293 brought about significant changes in the law and procedure relating to summary judgment. …

…

[17] That review of the authorities clearly establishes to my mind that there has been a significant change brought about by the implementation of r. 292 and r. 293 of the UCPR. The test for summary judgment is different, and the court must apply the words found in the rule. To use other language to define the test (as was contended for in this case by counsel for the appellant relying on the reasoning of Chesterman J. in Gray v. Morris) only diverts the decision-maker from the relevant considerations. But, and this underlies all that is contained in the UCPR, ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial. In my view, the observations on summary judgment made by the judges of the High Court in Fancourt v. Mercantile Credits Ltd (1983) 154 C.L.R. 87 at 99 are not incompatible with that application of r. 292 and r. 293; what is important is that in following the broad principle laid down by their Honours the test as defined by the rules is applied.”

(emphasis added)

  1. [25]
    The discretion to order summary judgment should only be exercised with great care and never in circumstances where there is a real question to be tried.[4]  Proceedings should be determined summarily only in the “clearest of cases”.[5]
  1. [26]
    As was observed by Daubney J in Bolton Property Pty Ltd v JK Investments (Australia) Pty Ltd [2009] QCA 135; [2009] 2 Qd R 202 at 217 [72], in the context of r 292 of the Uniform Civil Procedure Rules 1999, the rule confers on the court a discretion, not an obligation, to grant summary judgment.  At 218 [78], Daubney J said:

“… [t]he need to be satisfied in respect of [the] second element and, in any event, the proper judicial exercise of the discretion to grant or deny summary judgment are each matters which invoke the necessity for a judge to exercise great care, and proceed with appropriate caution, having regard to the patent seriousness of a decision to summarily terminate a proceeding by effectively denying a party the opportunity to present its case at a trial “in the ordinary way, and after taking advantage of the usual interlocutory processes”.”

(footnotes omitted)

  1. [27]
    That statement echoes the caution expressed some years earlier by the Court of Appeal in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 Qd R 259 by Holmes J (with whom Davies JA and Mullins J agreed) at 265 [7]:[6]

“However, it remains, without doubt, the case that:

“great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case.””

(footnotes omitted)

  1. [28]
    The court ought only determine a proceeding (or part of it) summarily in the clearest of circumstances and only if satisfied to a high degree of certainty as to the definitive outcome of the proceeding, were it to proceed in the ordinary way.[7] 
  1. [29]
    The issues that justify a case proceeding to a final hearing do not need to be factual.  Where there are legal issues of some complexity, a court is also justified in refusing to make a summary determination.[8]

Relevant principles re strikeout

  1. [30]
    In the alternative to summary judgment, Council seeks strike out pursuant to r 171 of the Uniform Civil Procedure Rules 1999.  That rule provides:

“171 Striking out pleadings

  1. (1)
    This rule applies if a pleading or part of a pleading—
  1. (a)
    discloses no reasonable cause of action or defence; or
  1. (b)
    has a tendency to prejudice or delay the fair trial of the proceeding; or
  1. (c)
    is unnecessary or scandalous; or
  1. (d)
    is frivolous or vexatious; or
  1. (e)
    is otherwise an abuse of the process of the court.
  1. (2)
    The court, at any stage of the proceeding, may strike out all or part of the pleading and order the costs of the application to be paid by a party calculated on the indemnity basis.
  1. (3)
    On the hearing of an application under subrule (2), the court is not limited to receiving evidence about the pleading.”
  1. [31]
    In schedule 4 of the Uniform Civil Procedure Rules 1999, pleading is defined as:

“(a) for a plaintiff—a concise statement in a claim of the material facts on which the plaintiff relies; or

  1. (b)
    for a defendant—the defence stated in a notice of intention to defend or a defence;

and includes a joinder of issue and an affidavit ordered to stand as a pleading.”

  1. [32]
    The power to strike out is to be exercised sparingly.[9]  Generally, a strike out is not appropriate in cases of doubt or difficulty or where a pleading raises a debatable question.[10]

The availability of summary judgment or strike out in this proceeding

Applicability of r 293 - summary judgment

  1. [33]
    Council submits that, by application of r 3 of the Planning and Environment Court Rules 2010, r 293 of the Uniform Civil Procedure Rules 1999, with necessary changes, extends to proceedings in the Planning and Environment Court commenced by way of Originating Application.[11]
  1. [34]
    Sunland submits that summary judgment under r 293 of the Uniform Civil Procedure Rules 1999 is not available.  It submits that the rule’s operation is confined to that class of case in which a defendant has filed a notice of intention to defend.[12]
  1. [35]
    In support of the applicability of r 293 of the Uniform Civil Procedure Rules 1999, Council relies on Stevenson Group Investments Pty Ltd v Nunn [2012] QCA 351; [2013] QPELR 1, which it submits is binding authority.  In that case, McMurdo P found at 20 [73]:

“[73] Judge Searles was entitled to give summary judgment under Uniform Civil Procedure Rules 1999 (Qld) r 293 only if satisfied that the applicant had no real prospect of succeeding on all or part of its claim and there was no need for a trial of the claim or the part of the claim. The power to dismiss an action summarily is not to be exercised lightly: Spencer v Commonwealth of Australia.”

(footnotes omitted)

  1. [36]
    Council also relies on decisions of this court as persuasive authority. It refers to:
  1. (a)
    Wilson SC DCJ’s finding in Hamill & Ors v Brisbane City Council & Pretirement Resorts Pty Ltd [2004] QPEC 30; [2005] QPELR 23 at [20] that:

“…there appears no reason, in principle, why a respondent who can show that an appellant has no real prospect of succeeding on all or part of an appeal, and that there is no need for a trial of the appeal (or part of it) might not apply under it [being r293].”

  1. (b)
    Brabazon QC DCJ’s finding in Plant Mart Pty Ltd v Gold Coast City Council [2004] QPEC 88; [2005] QPELR 385 at 386 that:

“I propose to follow the views of Judge Wilson in Hamill v The Brisbane City Council (2005) QPELR 23 where he found that an appeal in this Court could be dismissed if there was no real prospect of success, that is to say, under the provisions about summary judgment found in the Uniform Civil Procedure Rules.

In my opinion, there is no real prospect of success even if the appeal were to be amended. I decline the amendment and order that the appeal be dismissed.”

  1. (c)
    Theo v Logan City Council [2011] QPEC 103; [2012] QPELR 78, in which Robin QC DCJ noted that the application of the Uniform Civil Procedure Rules 1999 with respect to summary judgment applications in this court “is plain” and awarded summary judgment.
  1. [37]
    In terms of the doctrine of stare decisis, in CSR Limited v Eddy [2005] HCA 64; (2005) 226 CLR 1, Gleeson CJ, Gummow and Heydon JJ observed at 11 [13]:

“These events placed the Court of Appeal in a difficult position. It is of course commonplace for the courts to apply received principles without argument: the doctrine of stare decisis in one of its essential functions avoids constant re-litigation of legal questions. But where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument. “[T]he presidents, … sub silentio without argument, are of no moment.”

(footnotes omitted)

  1. [38]
    Neither Stevenson Group Investments Pty Ltd v Nunn[13] nor the decisions of this court relied on by Council consider the effect of r 293(1).  That rule identifies that the class of case in which an application for summary dismissal may be brought is confined to those in which a defendant has filed a notice of intention to defend. 
  1. [39]
    This confinement is important. In Allingham v Fuller [2013] QSC 81,[14] Daubney J held:

“[16] True it is that r 291 provides that Chapter 9 Part 2, within which r 293 is located, applies to any proceeding and that the UCPR provide for a proceeding to be commenced by, inter alia, an originating application – r 8(2). But the plain words of r 293, as currently formulated, make it clear that the summary judgment procedure is available only after a defendant has filed a notice of intention to defend. That occurs in a proceeding commenced by claim or, depending on the directions given by the court, in a proceeding commenced by originating application which is ordered to continue as if commenced by claim.

[17] If a respondent to an originating application wishes to contend that there ought be a .summary determination of the application for final relief commenced by the originating application (for example, on the basis that, on the undisputed facts, the applicant cannot succeed as a matter of law), then the respondent could apply to have the originating application dismissed, or have the originating application listed for hearing for a determination of the final relief.

[18] In my view, therefore, the summary judgment application brought by the respondents in this case was inapposite.”

(footnotes omitted)

  1. [40]
    The fact that directions have been made for the filing of points of claim and points of defence does not change the position.  In LPD Holdings (Aust) Pty Ltd v Russells (a firm) [2017] QSC 45, Flanagan J said at [4]:

“Rule 293(1) of the UCPR, which deals with summary judgment for a defendant, provides that 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. LPD's proceedings were commenced by application rather than claim and statement of claim. Whilst directions were made for the filing and serving of Points of Claim and Points of Defence, Russells has not filed a notice of intention to defend. Rule 293 therefore does not apply.”

  1. [41]
    While this court is not bound by the decisions of single judges of the Supreme Court, I accept that it should follow such decisions unless convinced that they are plainly wrong.[15]  I do not consider the two Supreme Court cases referred to above to be plainly wrong, but clearly correct.
  1. [42]
    Further, I am not satisfied that dispensing with the requirement in r 293(1) of the Uniform Civil Procedure Rules 1999 is a “necessary change” because:
  1. (a)
    it is not necessary.  Apart from r 293, there is a right of a respondent in this court to apply to strike out a pleading under r 171 of the Uniform Civil Procedure Rules 1999 or a proceeding as a whole under r 16 of the Uniform Civil Procedure Rules 1999,[16] or to seek the early determination of an issue or question under r 19 of the Planning and Environment Court Rules 2010.  It is therefore not necessary to read out the requirement in r 293(1) in order to make the summary dismissal procedure in r 293 available in all cases; and
  1. (b)
    it is not a change.  Reading out the requirement in r 293(1) transforms r 293 from a rule that has application only in certain proceedings (those commenced by, or ordered to continue as if commenced by, Claim) and then only on the fulfillment of the precondition of filing a notice of intention to defend, to a rule that can be invoked in any proceeding, at any stage, in this court.  This is the creation of a new rule, not a change to r 293.
  1. [43]
    I am not satisfied that the court has power to grant Council’s application under r 293 of the Uniform Civil Procedure Rules 1999.  That does not mean there are no procedures available in this court to bring proceedings to an end early.

Availability of r 171 - strikeout

  1. [44]
    Sunland submits that Council’s application is also not properly brought under r 171 of the Uniform Civil Procedure Rules 1999, since that rule relates to striking out a “pleading”, and Council does not apply to strike out any part of Sunland’s points of claim, rather parts of their notices of appeal and originating application.  It submits the application should either have been brought in the court’s implied jurisdiction to strike out a proceeding to prevent abuse of the court’s process[17] or under r 16 of the Uniform Civil Procedure Rules 1999.[18]
  1. [45]
    Council, in its reply, did not cavil with these submissions.
  1. [46]
    I am not satisfied that Council’s application is properly brought under r 171 of the Uniform Civil Procedure Rules 1999.

Inherent jurisdiction

  1. [47]
    Council submits that if the court finds that the application is not properly made under r 293 or r 171 Uniform Civil Procedure Rules 1999, the court would readily rely on its inherent jurisdiction to terminate the proceeding to the extent applied for by Council.
  1. [48]
    In Allingham v Fuller [2013] QSC 81, Daubney J observed at [19]:

“That, however, is not the end of the matter.  If, as was contended by the respondents, the principal relief sought under the originating application is truly not available to the applicant as a matter of law, then it is clearly in the interests of parties, and parenthetically of the Court, to put unmaintainable claims to rest.”

  1. [49]
    Council submits a lack of jurisdiction and the failure to allege an infrastructure agreement on the proper construction of the Sustainable Planning Act 2009 are sensible reasons to put unmaintainable claims to an end. 
  1. [50]
    Council further submits that the points it agitates on its application are legal matters that turn on the proper construction of Sustainable Planning Act 2009.  It submits the court is in as good a position now to deal with the legal matters as it will be after a trial on the facts.  It submits the benefit in dealing with the subject legal issues summarily is that it will avoid the waste of time and resources of a factual hearing on the alleged promissory estoppel and alleged estoppel by representation, which Council contends the court has no jurisdiction to hear and determine in any event.  It will also avoid a hearing of the same factual matters underpinning the estoppels that are relied upon to allege an infrastructure agreement because, as Council contends, even if the matters are established, they do not result in an infrastructure agreement under the Sustainable Planning Act 2009.
  1. [51]
    At the hearing, Sunland accepted that the challenge by Council is not on the facts and there is no factual controversy that might be relevant to assess in determining whether there are no real prospects of success. Further, despite its submissions with respect to the applicability of r 293 and r 171 of the Uniform Civil Procedure Rules 1999, Sunland did not submit that the court should not deal with the substance of Council’s applications to summarily determine parts of the proceedings.[19] 
  1. [52]
    I consider it appropriate that I determine whether parts of the proceedings should be summarily dismissed.

Issues to be determined

  1. [53]
    The issues that must be resolved in order to determine Council’s application for summary determination with respect to Sunland’s Amended Originating Application are:
  1. (a)
    with respect to the declarations sought in paragraphs 6(e) and (f) of the Amended Originating Application and the supporting grounds, which refer to an alleged estoppel:
  1. (i)
    whether the court has jurisdiction under s 456 of the Sustainable Planning Act 2009 to make the declarations sought in paragraphs 6(e) and (f) of the Amended Originating Application; and
  1. (ii)
    if the court has jurisdiction, whether this court would, in any event, refuse to make the declarations as a matter of discretion; and
  1. (b)
    with respect to the declarations sought in paragraphs 6(d) of the Amended Originating Application and the supporting grounds, whether Sunland’s allegations fail to disclose an infrastructure agreement within the meaning of the Sustainable Planning Act 2009.
  1. [54]
    With respect to each of Sunland’s appeals, Council applies for summary determination of Sunland’s reliance on the ground in s 478(2)(a) of the Sustainable Planning Act 2009 that the “charge in the notice is so unreasonable that no reasonable relevant local government could have imposed it” on the basis of alleged representations and promises in an alleged “capricious and arbitrary way”.  Council submits that s 478(2)(a) of the Sustainable Planning Act 2009, on its proper construction, has an objective test with respect to the charge in the notice itself, and does not concern any alleged representations or promises of Council as alleged by Sunland.

Summary determination of paragraphs 6(e) and (f) of the Amended Originating Application re estoppel

  1. [55]
    The jurisdiction of this court to make the declarations in paragraphs 6(e) and 6(f) of the Amended Originating Application is challenged by Council.
  1. [56]
    This court’s declaratory jurisdiction is conferred by s 456 of the Sustainable Planning Act 2009, which relevantly provides:

“(1) Any person may bring a proceeding in the court for a declaration about any of the following-

  1. (a)
    a matter done, to be done or that should have been done for this Act other than a matter for chapter 6, part 11;
  1. (b)
    the construction of this Act …”
  1. [57]
    Sunland submits that the declarations in paragraph 6 of the Amended Originating Application are to some extent interdependent and therefore need to be read together.  It submits that they are collectively directed to identifying the extent of Council’s power and obligations under the Sustainable Planning Act 2009 to collect infrastructure contributions and recognise credits in this case.  It submits:[20]

“(a) The first declaration sought, in paragraph 6(a), is to establish the existence of the Council’s power to collect infrastructure contributions in accordance with Conditions 13 to 16 of the Preliminary Approval. The second declaration sought, in paragraph 6(b), is to establish that the Council must proceed in that way (that is, it has no power to proceed under s. 635 of the SPA). The Council does not challenge the Court’s jurisdiction to make either of these declarations.

  1. (b)
    The first impugned declaration appears in paragraph 6(d). It is sought on the basis that the applicants succeed on the declaration in paragraph 6(a) (i.e. the Council is permitted to collect contributions under the Preliminary Approval) but do not succeed on the declaration in paragraph 6(b) (i.e. the Council is not bound, as a matter of construction, to proceed under the Preliminary Approval). In that case the applicants wish to contend that, by operation of an estoppel, the Council must proceed to collect infrastructure charges “under s. 880(3)(b)(ii) of the SPA” (and therefore not under s. 635 of the SPA). This is a declaration “about ... a matter ... to be done or that should have been done” for the SPA within the meaning of s. 456(1)(a).
  1. (c)
    The second impugned declaration appears in paragraph 6(e). It is also sought on the basis that the applicants succeed on the declaration in paragraph 6(a) but do not succeed on the declaration in paragraph 6(b) and do not succeed on the declaration in paragraph 6(d) just discussed. In that case the applicants wish to contend that, by operation of a further estoppel, the Council must recognise infrastructure credits in a particular way when it proceeds to require contributions for infrastructure under the SPA. Again, this is a declaration “about ... a matter ... to be done or that should have been done” for the SPA.”
  1. [58]
    The facts and matters relied on by Sunland in support of the declarations are essentially as follows:[21]
  1. (a)
    There was a preliminary approval containing conditions that, on one view, gave rise to an entitlement to infrastructure credits.  The owner of the land was offering that land for sale, and Sunland was interested in acquiring it. 
  1. (b)
    During a due diligence period, Sunland made a variety of inquiries of Council as to the availability of those infrastructure credits. 
  1. (c)
    On 1 September 2014, representatives of Sunland met with representatives of Council at which time the applicability of credits was discussed.  Council informed Sunland that it would confirm what credits and charges were applicable and confirm that the new regime, meaning the Sustainable Planning Act 2009, did not apply to imposing infrastructure contributions and recognising credits. 
  1. (d)
    On 12 September 2014, in a letter to Cardno HRP, Council stated that total credits of 5,564.9 equivalent tenements were available as offsets against charges required for the water and wastewater networks under conditions 14 and 15 of the preliminary approval and any subsequent approvals under the umbrella of the preliminary approval.  The letter also contained a qualification that any new application lodged outside the preliminary approval would be assessed on a different basis.
  1. (e)
    There was a further meeting where the nature of the qualification, amongst other things, was discussed. 
  1. (f)
    There was a further telephone conversation, followed by a letter, which Sunland contends updated the 12 September letter and clarified what might be outside the preliminary approval. 
  1. (g)
    On the basis of those representations and promises, Sunland contends that it agreed to acquire the property from the then vendor, which it did shortly after the letters were exchanged.  Sunland lodged applications, which it contends were within the scope of the preliminary approval.  It received infrastructure charges notices that did not give effect to the credits to which Sunland contends it is entitled, pursuant to the promises and representations that were made. 
  1. [59]
    Sunland submits that the declaration is about a matter done, to be done or that should have been done for the Sustainable Planning Act 2009, namely that Council is to proceed to collect infrastructure charges under s 880(3)(b)(ii) of the Sustainable Planning Act 2009 and not otherwise.[22] 
  1. [60]
    In support of its submission, Sunland submits:
  1. (a)
    first, the estoppels have substantive effect.[23]  The promissory estoppel operates substantively in relation to how Council may collect infrastructure contributions or levy charges in accordance with the Sustainable Planning Act 2009, and the estoppel by representation affects the manner in which the Council’s substantive rights to collect infrastructure contributions or levy charges under the Act operate;
  1. (b)
    secondly, where a court has jurisdiction to make a declaration relating to the exercise of a statutory power (here about the extent of the Council’s powers and obligations under s 635 and s 880), that jurisdiction must logically extend to making declarations about antecedent matters which are connected with it.  With respect to this proposition, Sunland cites Mentink v Registrar of the Australian Register of Ships [2013] QSC 151; [2014] 1 Qd R 397 at 410 [37].   It submits that given this court has jurisdiction to make declarations about Council’s power to collect infrastructure contributions under s 880 of the Sustainable Planning Act 2009, that jurisdiction must logically extend to making declarations about whether Council has bound itself to collect contributions under the Act in a particular way;
  1. (c)
    thirdly, applications to the court under s 456 of the Sustainable Planning Act 2009 are akin to judicial review proceedings.  Sunland submits that, in an appropriate case, an estoppel may be relied upon as part of application for judicial review.  It submits that this is such a case.  It submits that the estoppels concern operational matters relating to the recovery of infrastructure charges or contributions in a particular case, in exercise of the powers under the Act and within a statutory framework that permits Council to depart from the default statutory provisions about infrastructure notices (by contracting).
  1. [61]
    In my view, insofar as the declaratory relief sought by Sunland in substance involves consideration of whether there is promissory estoppel, that is not a matter within the jurisdiction of this court under s 456(1)(a) of the Sustainable Planning Act 2009.
  1. [62]
    Although the court has jurisdiction to make a declaration about the extent of Council’s powers and obligations under s 635 and s 880 of the Sustainable Planning Act 2009, paragraphs 6(e) and (f) of the Amended Originating Application do not seek such a declaration. 
  1. [63]
    The fact that the alleged estoppels may have substantive effect does not confer jurisdiction on the court.
  1. [64]
    I do not accept that the jurisdiction of the court must necessarily extend to making declarations about antecedent matters that are connected with the court’s jurisdiction. The supervisory jurisdiction of this court under s 456 of the Sustainable Planning Act 2009 is expressed in wide terms.  The court has supervisory jurisdiction in relation to matters done “for” the Sustainable Planning Act 2009.  The provision should not be read down to exclude the court’s supervisory jurisdiction unless there is a clear and unmistakeable intention to do so.[24]  However, the jurisdiction of the court is also not to be read in an impermissibly expansive manner such that it impinges on the jurisdiction of the Supreme Court of Queensland.[25] 
  1. [65]
    Here, the declarations in question are not declarations that are akin to judicial review.  The declarations do not invoke the supervision of the court about an administrative decision made by Council exercising its statutory powers under the Sustainable Planning Act 2009.  They are declarations about the future operation of an equitable remedy.
  1. [66]
    The question about the operation of an estoppel is not an issue that must be determined in order to ascertain the extent of Council’s powers and obligations under s 635 and s 880 of the Sustainable Planning Act 2009.[26] 
  1. [67]
    In my view, the court does not have jurisdiction to make the declarations sought.

Summary determination of paragraphs 6(c) of the Amended Originating Application re infrastructure agreement

  1. [68]
    Council also seeks to strike out, or have summarily dismissed, Sunland’s application for a declaration about the existence of an infrastructure agreement. It seeks summary determination on the basis that:
  1. (a)
    the Sustainable Planning Act 2009 requires an infrastructure agreement to be an agreement in writing;
  1. (b)
    this is to be construed as an agreement in writing that is signed or executed by both parties;
  1. (c)
    Sunland has not alleged any such agreement in writing; and
  1. (d)
    Sunland also has not alleged that it communicated any acceptance of any alleged promise or offer, or that there was a meeting of minds to enter an infrastructure agreement. 
  1. [69]
    Section 627 of the Sustainable Planning Act 2009 contains definitions for chapter 8 of the Act.  It defines infrastructure agreement by reference to s 670. 
  1. [70]
    Section 670 of the Sustainable Planning Act 2009 defines an infrastructure agreement as “an agreement, as amended from time to time, mentioned in…section 677”. 
  1. [71]
    Section 677 of the Sustainable Planning Act 2009 permits a person to enter into an agreement with a public sector entity about providing or funding infrastructure. 
  1. [72]
    An “agreement” is defined in s 627 of the Sustainable Planning Act 2009 to mean “an agreement in writing”. 
  1. [73]
    Sunland submits that although an infrastructure agreement is to be in writing, there is not a requirement that the agreement be in the form of an executed contract. It submits that if the agreement was required to be signed or executed then the legislature might be expected to have adopted a form of words like those used in s 10 and s 11 of the Property Law Act 1974 (Qld), which require “writing signed by the person [creating the interest]”. 
  1. [74]
    Sunland submits that the terms of agreement are in writing. It submits that the agreement is contained in a letter from Council signed by its Chief Executive Officer. It says the fact that the terms in that letter reflected a concluded agreement intended to be legally binding is to be inferred from the writing and also other conduct of the parties. It submits that this fulfills the statutory requirement of an agreement in writing. It cites Ultrarad Pty Ltd v Health Insurance Commission [2005] FCA 816; (2005) 143 FCR 526, 542 [58] and Mackay Sugar Ltd v Quadrio [2015] QCA 41 at [28] and [29] as authority for this proposition. 
  1. [75]
    Sunland also submits that it is not necessary to prove offer and acceptance in the strict sense to establish a contract. In that respect, it cites Alford v Ebbage [2004] QCA 283 at [117]-[128].  It submits that in some cases, the existence of an agreement may be determined “more by examination of the overall conduct of the parties then by seeking to identify the legal indicia of a valid contract such as offer and acceptance”.[27]  Sunland submits that accordingly, it is not necessary to plead an offer or acceptance of that offer as material facts to support a claim for a declaration about the existence of a contract.[28] 
  1. [76]
    Council disputes Sunland’s contentions. It points to a number of provisions of the Sustainable Planning Act 2009 that it submits indicate a written infrastructure agreement must be a self-contained document recording the entirety of the agreement between the parties.
  1. [77]
    What is required to constitute an “agreement in writing” is a question of “doubt or difficulty”[29] and whether the requirements have been fulfilled is fact dependent. 
  1. [78]
    I am not satisfied that Sunland has no real prospect of succeeding on this issue or that there is no need for a trial of the issue.
  1. [79]
    I am not satisfied that the case is sufficiently clear as to warrant the summary determination that Council seeks.

Summary determination of “so unreasonable” grounds in the appeals against the infrastructure charges notices

  1. [80]
    Sunland, in its Amended Notices of Appeal, challenges the infrastructure charges notices under s 478(2)(a) of the Sustainable Planning Act 2009. 
  1. [81]
    Section 478 of the Sustainable Planning Act 2009 states:

“(1) The recipient of an infrastructure charges notice may appeal to the court about the decision to give the notice.

  1. (2)
    However, the appeal may be made only on 1 or more of the following grounds–
  1. (a)
    the charge in the notice is so unreasonable that no reasonable relevant local government could have imposed it;
  1. (b)
    the decision involved an error relating to–
  1. (i)
    the application of the relevant adopted charge; or
  1. (ii)
    the working out, for section 636, of additional demand; or
  1. (iii)
    an offset or refund;
  1. (c)
    there was no decision about an offset or refund;

Examples of possible errors in applying an adopted charge–

  • the incorrect application of gross floor area for a non-residential development
  • applying an incorrect ‘use category’ under an SPRP (adopted charges) to the development
  1. (d)
    if the infrastructure charges notice states a refund will be given–the timing for giving the refund.
  1. (3)
    To remove any doubt, it is declared that the appeal must not be about:
  1. (a)
    the adopted charge itself; or
  1. (b)
    for a decision about an offset or refund–
  1. (i)
    the establishment cost of infrastructure identified in an LGIP; or
  1. (ii)
    the cost of infrastructure decided using the method included in the local government’s charges resolution.
  1. (4)
    The appeal must be started within 20 business days after the day the recipient is given the relevant infrastructure charges notice.”
  1. [82]
    The grounds for challenge in the Amended Notices of Appeal contain allegations of representations and promises by Council about available infrastructure credits (including an alleged promise by Council not to assess contributions and recognise credits by reference to the statutory regime in force at the time of any approval), and that Council departed from the alleged representations and promises in “a capricious and arbitrary way”.
  1. [83]
    Council submits that Sunland has no real prospect of succeeding, and there is no need for a trial, on the basis that s 478(2)(a) of the Sustainable Planning Act 2009, properly construed, is concerned with an objective test, not subjective representations of Council and alleged departures from such representations.
  1. [84]
    Sunland, on the other hand, submits that assessment of unreasonableness of the kind contemplated by s 478(2)(a) of the Sustainable Planning Act 2009 involves looking at all the circumstances that led to the charge of a particular amount being imposed.  It further submits that Council’s contention does not recognise the distinction in the Act between the adopted charge and the charge in the notice.  Other grounds of appeal, such as s 478(2)(b)(i) are concerned directly with whether the adopted charge has been properly applied.  Sunland submits the unreasonableness ground is explicitly concerned with the charge in the notice (regardless of whether the adopted charge has been applied).  Sunland submits this is a wider, or at least a different, enquiry.
  1. [85]
    In Sunland Developments No 22 Pty Ltd v Gold Coast City Council [2018] QPEC 22, I found the infrastructure notices the subject of the appeals are invalid.  As such, it is unnecessary for me to determine this point. 
  1. [86]
    Nevertheless, it seems to me that the issue is not sufficiently clear as to warrant summary determination.

Conclusion

  1. [87]
    For the reasons outlined above:
  1. (a)
    I am satisfied that the court does not have jurisdiction to make the declarations sought in paragraphs (6)(e) and (f) of the Amended Originating Application and the relief sought in those paragraphs ought be summarily dismissed;
  1. (b)
    I am not satisfied that it is appropriate to summarily dismiss the relief sought in paragraph 6(d) of the Amended Originating Application; and
  1. (c)
    with respect to each appeal, I intend to order:
  1. (i)
    the application filed by the Respondent on 27 October 2017 be dismissed;
  1. (ii)
    Sunland Group Limited is granted leave to discontinue the proceeding; and
  1. (iii)
    there be no order as to costs.

Footnotes

[1]  Court Doc 8 in Application No 1497 of 2017.

[2]  Court Doc 9 in Appeal No 321of 2016, Court Doc 8 in Appeal No 323 of 2016, Court Doc 8 in Appeal No 4 of 2017 and Court Doc 5 in Appeal No 2213 of 2017.

[3]  Applicant’s Outline of Argument dated 16 May 2018 – Court Doc 30.

[4] Fancourt & Anor v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, 99.

[5] Deputy Commissioner of Taxation v Salcedo [2005] QCA 227; [2005] 2 Qd R 232, 233 [3].

[6]  citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 122 CLR 125, 130.

[7] Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119; [2011] 2 Qd R 114, 136 [80]-[81]; Rich v CGU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856, 859.  That is important given the judgement granted on an application for summary judgment operates as a res judicata or cause of action estoppel - See observations of Jackson J in Haggarty v Wood (No 2) [2015] QSC 244, [62]-[80], particularly at [77] citing Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 532.

[8] Melisavon Pty Ltd v Springfield Land Development Corporation Pty Ltd [2014] QCA 233; [2015] 1 Qd R 476, 510 [72] per Ann Lyon J citing Barwick CJ, Gibbs and Stephen JJ in Theseus Exploration NL v Foyster (1972) 126 CLR 507, 515.

[9] General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125, 129-30; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91.

[10] Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91.

[11]  Respondent’s Submissions in Reply on the Application for Summary Judgment / Strike Out – Court Doc 23 in Application 1497 of 2017 p 2 [4] and p 3 [6].

[12]  Written Submissions for the Applicants – Council’s Summary Judgment Application – Court Doc 21 in Application 1497 of 2017 p 3 [6].

[13]  [2012] QCA 351; [2013] QPELR 1

[14]  See also Vantage Holdings Pty Ltd v IHC Developments Group Pty Ltd [2011] QSC 155 at [18]-[25]; Mio Art Pty Ltd v BMD Holdings Pty Ltd [2014] QSC 55 at [120].

[15]  See Keramaniakis v Wagstaff [2005] NSWDC 14; (2005) 3 DCLR (NSW) 1 at [58].

[16]  neither of which contain the limitation in r 293(1) of the Uniform Civil Procedure Rules 1999

[17] Basha v Basha [2010] QCA 123, [23].

[18]  Written Submissions for the Applicants – Council’s Summary Judgment Application – Court Doc 21 in Application 1497 of 2017 p 6 [14].

[19]  See T1-53/L26-34.

[20]  The references to paragraphs 6(d) and 6(e) are references to the Originating Application.  They relate to paragraphs 6(e) and 6(f) of the Amended Originating Application.

[21]  T1-55/L27 – T1-56/L23.  See Amended Points of Claim – Court Doc 24 in Application 1497 of 2017 pp 12-19 [51]-[68].

[22]  T1-56/L42-7.

[23] Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295; (2012) 16 BPR 30,901 at [26]; Labracon Pty Ltd v Cuturich [2013] NSWSC 97; (2013) 17 BPR 32,497 at [151].

[24] Magrath v Goldsborough Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121, 134; Shergold v Turner [2002] HCA 19; (2002) 209 CLR 126, 136 [34].

[25] Netstar Pty Ltd v Caloundra City Council [2004] QCA 296; [2005] 1 Qd R 287, 292 [16].

[26] Cornerstone Properties Ltd v Caloundra City Council & Anor [2005] QPELR 96, pp 101-2 [33] and p 103 [43].

[27] Alford v Ebbage [2004] QCA 283, [117]-[124].  See also [117]-[128].

[28]  Offer and acceptance are not matters which are required to be specifically pleaded under rule 150(1) of the Uniform Civil Procedure Rules 1999. 

[29] New South Wales v Williams [2014] NSWCA 177, [71].

Close

Editorial Notes

  • Published Case Name:

    Sunland Group Limited & Sunland Developments No 22 Pty Ltd v Gold Coast City Council (No. 2)

  • Shortened Case Name:

    Sunland Group Limited v Gold Coast City Council (No. 2)

  • MNC:

    [2018] QPEC 28

  • Court:

    QPEC

  • Judge(s):

    Kefford DCJ

  • Date:

    24 May 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alford v Ebbage [2004] QCA 283
2 citations
Jump To
Cite 1 - [2004] QCA 283
Cite 2 - [2004] QCA 283
Allingham v Fuller [2013] QSC 81
3 citations
Jump To
Cite 1 - [2013] QSC 81
Cite 2 - [2013] QSC 81
Cite 3 - [2013] QSC 81
Basha v Basha [2010] QCA 123
2 citations
Jump To
Cite 1 - [2010] QCA 123
Cite 2 - [2010] QCA 123
Blair v Curran [1939] HCA 23
1 citation
Jump To
Cite 1 - [1939] HCA 23
Blair v Curran (1939) 62 C.L.R., 464
1 citation
Jump To
Cite 1 - (1939) 62 C.L.R., 464
Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd[2009] 2 Qd R 202; [2009] QCA 135
4 citations
Jump To
Cite 1 - [2009] QCA 135
Cite 2 - [2009] QCA 135
Cite 3 - [2009] 2 Qd R 202
Cite 4 - [2009] 2 Qd R 202
Cornerstone Properties Ltd v Caloundra City Council [2005] QPELR 96
2 citations
Jump To
Cite 1 - [2005] QPELR 96
Cite 2 - [2005] QPELR 96
CSR Limited v Eddy (2005) 226 CLR 1
2 citations
Jump To
Cite 1 - (2005) 226 CLR 1
Cite 2 - (2005) 226 CLR 1
CSR Ltd v Eddy [2005] HCA 64
2 citations
Jump To
Cite 1 - [2005] HCA 64
Cite 2 - [2005] HCA 64
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
6 citations
Jump To
Cite 1 - [2005] QCA 227
Cite 2 - [2005] QCA 227
Cite 3 - [2005] QCA 227
Cite 4 - [2005] 2 Qd R 232
Cite 5 - [2005] 2 Qd R 232
Cite 6 - [2005] 2 Qd R 232
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
3 citations
Jump To
Cite 1 - (1949) 78 CLR 62
Cite 2 - (1949) 78 CLR 62
Cite 3 - (1949) 78 CLR 62
Dey v Victorian Railways Commissioners [1949] HCA 1
3 citations
Jump To
Cite 1 - [1949] HCA 1
Cite 2 - [1949] HCA 1
Cite 3 - [1949] HCA 1
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
3 citations
Jump To
Cite 1 - (1983) 154 CLR 87
Cite 2 - (1983) 154 CLR 87
Cite 3 - (1983) 154 CLR 87
Fancourt v Mercantile Credits Ltd [1983] HCA 25
2 citations
Jump To
Cite 1 - [1983] HCA 25
Cite 2 - [1983] HCA 25
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
2 citations
Jump To
Cite 1 - [1964] HCA 69
Cite 2 - [1964] HCA 69
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 122 CLR 125
1 citation
Jump To
Cite 1 - (1964) 122 CLR 125
Gray v Morris[2004] 2 Qd R 118; [2004] QCA 5
1 citation
Jump To
Cite 1 - [2004] 2 Qd R 118
Haggarty v Wood (No 2) [2015] QSC 244
2 citations
Jump To
Cite 1 - [2015] QSC 244
Cite 2 - [2015] QSC 244
Hamill & Ors v Brisbane City Council & Pretirement Resorts Pty Ltd (2005) QPELR 23
3 citations
Jump To
Cite 1 - (2005) QPELR 23
Cite 2 - (2005) QPELR 23
Cite 3 - (2005) QPELR 23
Hamill v Brisbane City Council [2004] QPEC 30
2 citations
Jump To
Cite 1 - [2004] QPEC 30
Cite 2 - [2004] QPEC 30
Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295
1 citation
Jump To
Cite 1 - [2012] NSWCA 295
Hammond v JP Morgan Trust Australia Ltd (2012) 16 BPR 30,901
1 citation
Jump To
Cite 1 - (2012) 16 BPR 30,901
Keramaniakis v Wagstaff [2005] NSWDC 14
1 citation
Jump To
Cite 1 - [2005] NSWDC 14
Keramaniakis v Wagstaff (2005) 3 DCLR NSW 1
1 citation
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Cite 1 - (2005) 3 DCLR NSW 1
Labracon Pty Ltd v Cuturich [2013] NSWSC 97
1 citation
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Cite 1 - [2013] NSWSC 97
Labracon Pty Ltd v Cuturich (2013) 17 BPR 32,497
1 citation
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Cite 1 - (2013) 17 BPR 32,497
LPD Holdings (Aust) Pty Ltd v Russells [2017] QSC 45
2 citations
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Cite 1 - [2017] QSC 45
Cite 2 - [2017] QSC 45
Mackay Sugar Ltd v Quadrio [2015] QCA 41
1 citation
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Cite 1 - [2015] QCA 41
Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121
2 citations
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Cite 1 - (1932) 47 CLR 121
Cite 2 - (1932) 47 CLR 121
Magrath v Goldsbrough, Mort & Co Ltd [1932] HCA 10
2 citations
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Cite 1 - [1932] HCA 10
Cite 2 - [1932] HCA 10
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited[2015] 1 Qd R 476; [2014] QCA 233
4 citations
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Cite 1 - [2014] QCA 233
Cite 2 - [2014] QCA 233
Cite 3 - [2015] 1 Qd R 476
Cite 4 - [2015] 1 Qd R 476
Mentink v Registrar of the Australian Register of Ships (No 2)[2014] 1 Qd R 397; [2013] QSC 151
2 citations
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Cite 1 - [2013] QSC 151
Cite 2 - [2014] 1 Qd R 397
Mio Art Pty Ltd v BMD Holdings Pty Ltd [2014] QSC 55
1 citation
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Cite 1 - [2014] QSC 55
Netstar Pty Ltd v Caloundra City Council[2005] 1 Qd R 287; [2004] QCA 296
4 citations
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Cite 1 - [2004] QCA 296
Cite 2 - [2004] QCA 296
Cite 3 - [2005] 1 Qd R 287
Cite 4 - [2005] 1 Qd R 287
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd[2011] 2 Qd R 114; [2010] QCA 119
4 citations
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Cite 1 - [2010] QCA 119
Cite 2 - [2010] QCA 119
Cite 3 - [2011] 2 Qd R 114
Cite 4 - [2011] 2 Qd R 114
New South Wales v Williams [2014] NSWCA 177
1 citation
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Cite 1 - [2014] NSWCA 177
Plant Mart Pty Ltd v Gold Coast City Council [2004] QPEC 88
2 citations
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Cite 1 - [2004] QPEC 88
Cite 2 - [2004] QPEC 88
Plant Mart Pty Ltd v Gold Coast City Council [2005] QPELR 385
2 citations
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Cite 1 - [2005] QPELR 385
Cite 2 - [2005] QPELR 385
Queensland University of Technology v Project Constructions (Aust) Pty Ltd (In Liq)[2003] 1 Qd R 259; [2002] QCA 224
4 citations
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Cite 1 - [2002] QCA 224
Cite 2 - [2002] QCA 224
Cite 3 - [2003] 1 Qd R 259
Cite 4 - [2003] 1 Qd R 259
Rich v CGU Insurance Ltd [2005] HCA 16
2 citations
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Cite 1 - [2005] HCA 16
Cite 2 - [2005] HCA 16
Rich v CGU Insurance Ltd (2005) 79 A.LJ.R. 856
2 citations
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Cite 1 - (2005) 79 A.LJ.R. 856
Cite 2 - (2005) 79 A.LJ.R. 856
Shergold v Tanner (2002) 209 CLR 126
2 citations
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Cite 1 - (2002) 209 CLR 126
Cite 2 - (2002) 209 CLR 126
Shergold v Tanner [2002] HCA 19
2 citations
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Cite 1 - [2002] HCA 19
Cite 2 - [2002] HCA 19
Stevenson Group Investments Pty Ltd v Nunn [2012] QCA 351
3 citations
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Cite 1 - [2012] QCA 351
Cite 2 - [2012] QCA 351
Cite 3 - [2012] QCA 351
Stevenson Group Investments Pty Ltd v Nunn [2013] QPELR 1
3 citations
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Cite 1 - [2013] QPELR 1
Cite 2 - [2013] QPELR 1
Cite 3 - [2013] QPELR 1
Sunland Group Ltd v Gold Coast City Council [2018] QPEC 22
3 citations
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Cite 1 - [2018] QPEC 22
Cite 2 - [2018] QPEC 22
Cite 3 - [2018] QPEC 22
Theo v Logan City Council [2011] QPEC 103
2 citations
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Cite 1 - [2011] QPEC 103
Cite 2 - [2011] QPEC 103
Theo v Logan City Council [2012] QPELR 78
2 citations
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Cite 1 - [2012] QPELR 78
Cite 2 - [2012] QPELR 78
Theseus Exploration NL v Foyster (1972) 126 CLR 507
1 citation
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Cite 1 - (1972) 126 CLR 507
Ultrarad Pty Ltd v Health Insurance Commission (2005) 143 FCR 526
1 citation
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Cite 1 - (2005) 143 FCR 526
Ultrarad Pty Ltd v Health Insurance Commission [2005] FCA 816
1 citation
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Cite 1 - [2005] FCA 816
Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd [2011] QSC 155
1 citation
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Cite 1 - [2011] QSC 155

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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