Leeglade Pty Ltd v Cairns City Council
[2007] QSC 260
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- Unreported Judgment
- Leeglade Pty Ltd v Cairns City Council[2007] QSC 260
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Leeglade Pty Ltd v Cairns City Council[2007] QSC 260
Leeglade Pty Ltd v Cairns City Council[2007] QSC 260
SUPREME COURT OF QUEENSLAND
CITATION: | Leeglade Pty Ltd v Cairns City Council [2007] QSC 260 |
PARTIES: | LEEGLADE PTY LTD ACN 060 652 388 (Plaintiff) v CAIRNS CITY COUNCIL (Defendant) |
FILE NO/S: | 128 of 1996 |
DIVISION: | Trial |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court |
DELIVERED ON: | 10 August 2007 |
DELIVERED AT: | Cairns |
HEARING DATE: | 9 July 2007 |
JUDGE: | Jones J |
ORDER: | 1. The application is dismissed. 2. I order that the plaintiff pay the defendant’s costs of and incidental to the application to be assessed on the standard basis. |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE - PROCEDURE UNDER RULES OF COURT – Time –Dismissal of proceedings for want of delay– whether leave to renew proceedings should be granted after lengthy delay – where plaintiff impecunious – whether likelihood of prejudice. |
COUNSEL: | Mr W Cochrane for the plaintiff Mr A Philp SC and Mr M Jonsson for the defendant |
SOLICITORS: | Williams Graham & Carman for the plaintiff MacDonnells Law for the defendant |
- By this application the plaintiff seeks, pursuant to r 389(2) of the Uniform Civil Procedure Rules (“UCPR”), leave to take a further step in the proceedings. To this date the plaintiff has taken only two steps – the issuing of a Writ of Summons on 29 October 1996 and the delivery of a Statement of Claim on 11 March 1998. The defendant filed an Entry of Appearance two days after the Writ of Summons on 31 October 1996. This application for leave to proceed was filed 19 March 2007, nine years after the Statement of Claim was filed.
- The Statement of Claim identifies that the plaintiff’s claim is for the sum of $305,986.21 an amount which was allegedly an overpayment for contributions to water supply and/or sewerage head works referable to subdivision applications for three separate parcels of land owned by the plaintiff at Yorkeys Knob, Kewarra Beach and Stratford, now suburbs of Cairns. The lands were at that time in the local government area under the control of the Mulgrave Shire council which was subsequently amalgamated with the Cairns City Council.
- Approvals for the subdivision were given on various dates between October 1993 and October 1994. The relevant payments for the statutory charges were made between December 1993 and December 1994.
- The plaintiff was an experienced land developer and was retained by competent advisors to guide its developments. It was aware of its rights to challenge the imposition of excessive head works charges. The plaintiff did in fact, in June 1994, appeal against other conditions imposed in respect of the Kewarra Beach development.
- The substance of the present claim is that the officers of the plaintiff were unaware of the extent of the council’s entitlement to the head works contributions and the overpayments were made by mistake. The plaintiff claims that the council dictated the amount of the contributions and it was not until 1995 that the company, through its solicitors, became aware of the overcharge.
- The defendant, Cairns City Council (“the Council”) is the successor of the Mulgrave Shire Council following the amalgamation of the two local authorities in 1994. Pursuant to the terms of the amalgamation it has been made responsible for the liabilities of the Mulgrave Shire Council at that time. By its defence the Council contends that the contributions were made voluntarily by the plaintiff upon its own determination of what was due. The defence raises other issues such as the plaintiff’s failure to appeal to the Planning and Environment Court, the fact that the council has subsequently funded projects based on budgetary considerations including the retention of the disputed monies and generally denies that it has been unjustly enriched.
- The issues raised on the pleadings have been significantly impacted upon by the passing of time since the councils’ amalgamation in 1994. The evidence of Mr Tabulo, General Manager, City Development, who has the responsibility for maintaining and classifying the records of the Mulgrave shire council, satisfies me that there will be difficulties in retrieving records relevant to these issues. He identifies former officers who most probably played a part in the decision making that determined the extent of the head works contributions. Insofar as there will be some reliance upon the recollection of the former officers of the Mulgrave Shire Council there can be no realistic expectation that they will have direct recall of the dealings with the plaintiff or its advisors. Such recollections might well be determinative of the claim. Documentary evidence will not doubt play a part. There has been, in respect of other similar claims by different developers, extensive disclosure of documents held by the Council. These documents whilst assisting in a general way, may not assist in evoking recollections of relevant discussions in respect of the plaintiff’s subdivisions. I do not accept the plaintiff’s submission that the decision will turn solely upon documentary evidence. There is the prospect of evidence of oral evidence going to the practice of the Mulgrave Shire Council, whether negotiations were undertaken in the fixing of charges and what opportunity there was to dispute the charges.
- The plaintiff has drawn my attention, in unnecessary detail, to the claims of a like nature made by other developments about this time. Some of these claims have progressed to trial or to settlement. I do not propose to go into the details of those cases except to observe that the pursuers of those claims appear to have been invigorated by the decision in Hollis v Atherton Shire Council[1] pronounced in March 2003. Before that decision a claim made by Crystal Creek Pty Ltd on 14 November 1995 arising from similar circumstances, was the subject of an application for leave to proceed. The decision on that application[2] was handed down on 7 February 2001. The point of mentioning these decisions which were known to the plaintiff’s solicitors is to set a benchmark from which to consider the plaintiff’s inaction when all the favourable circumstances for proceeding with its claim were known.
- The plaintiff company, having commenced this action in October 1996, continued to carry on business as a developer until 11 June 2002 when it was de-registered. In the years prior to that event it had traded with some difficulty resulting in it having accumulated losses of $243,783 by the end of the 2000/2001 financial year. One of the directors, Mr Hayes, however had transferred to himself by way of a dividend two allotments which he sold and used the proceeds for other investments. The de-registration of the company appears to have been the result of a conscious decision to end its commercial life including the foregoing of this litigation.[3] Mr Hayes explained that delay between March 2003 and the filing of this application was occasioned because of the reluctance of the former co-director to agree to the reinstatement of the plaintiff company and the time taken to acquire his interest.
- The reinstatement of the company on 3 May 2006, some four years later, has the air of an opportunistic attempt to follow the success of other developers who kept their claims on foot and pursued their remedies by seeking disclosure and negotiating settlements. In the meantime however there was no indication to the Council that the plaintiff, or any of its directors, wished to keep on foot the consideration of its claim.
- The work undertaken by the Council in making disclosure and compromising those like claims does not relieve the Council, or necessarily reduce the burdens, of inquiry and disclosure in respect of this plaintiff’s claim. Mr Tabulo identifies the work that it will have to undertake if the claim is allowed to proceed in paras 10-15 of his affidavit sworn 2 July 2007. It is significant that the relevant documents, some dating back to 1983, may not be found. It is significant also that the inquiries will necessarily test the recall of former officers who retired as long as 9 and 11 years ago.
- I see in these circumstances considerable prejudice to the Council’s capacity to defend the claim. Further to that, the company is impecunious and in debt. It is not shown to have any assets other than its interest in this claim. There is a risk for the Council, in committing to the expense of defending the claim, not to be able to recover its costs if it were successful.
- Council inquiries, triggered by disclosure requests after the Hollis decision, revealed that there were some 242 applications for subdivision approvals during the 1980’s and early 1990’s. Claims which were made in a timely way have been, or continue to be, dealt with. The council is entitled to know what is its potential exposure to claims of this kind. It is entitled to have the claims disposed of expeditiously. For a claim which has proceeded in the manner of this claim (particularly against the background of the plaintiff’s de-registration) the Council ought to have been able to assume that the claim was abandoned.
- The prohibition imposed by r 389(2) requires the applicant to show that there is good reason for excepting it from the general prohibition. William Crosby & Co Pty Ltd v The Commonwealth[4]. In Dempsey v Dorber[5] Connolly J identified the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given to the circumstances of the case to each of them and then to determine whether, on balance, there is good reason for making the order. The additional factor which is always relevant is whether the defendant is likely to suffer prejudice as a result of the delay. A non-exhaustive list of typical relevant considerations may be found in the Court of Appeal decision of Tyler v Custom Credit Corp Ltd[6] in the judgment of Atkinson J (McMurdo P and McPherson JA agreeing).
- What emerges from a consideration of relevant matters in this case is that the claim relates to a decision which was made in 1993, almost 14 years ago, by persons who had to consider changes in statutory instruments and circumstances which occurred almost 20 years ago. There are considerations as to who made the decision and the circumstances in which it was made. Such considerations will depend on recollections which inevitably will be uncertain. The litigation which itself was commenced in a timely way but then stalled by a delay of 17 months between the filing of the Entry of Appearance and the delivery of a Statement of Claim. No explanation is given for this part of the delay. Of greater significance is the fact that since the delivery of the Statement of Claim in March 1998 the plaintiff has not taken another step in 9 years. Part of the reason for that delay is the deregulation of the corporate plaintiff but this fact in my view, compounds the problem for the plaintiff rather than being an explanation for delay. Nor do I accept that the impecuniosity of the plaintiff explains the delay. Mr Hayes who is the moving force, in the plaintiff now pursuing its remedy chose, at an early time to apply funds he received from the company to investments rather than enabling the company to fund this action at a time when it could have proceeded without the degree of prejudice about which the Council now complains.
- In short, I am not satisfied that a satisfactory explanation has been given for the delay of this magnitude. This fact has to be weighed also against the undoubted prejudice which the Council would suffer if the matter is allowed to proceed. The action has proceeded only to the point of the filing of initial pleadings. There is yet a long way to go and there will be troubling aspects about discovery and the availability of witnesses. Weighing all of these matters, I have come to the view that the plaintiff has not shown good reason why it should be exempted from the prohibition imposed by r 389(2). I therefore dismiss the application with costs.
Orders
- [17]
1.The application is dismissed.
2.I order that the plaintiff pay the defendant’s costs of and incidental to the application to be assessed on the standard basis.