Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWSC 262

Supreme Court New South Wales

Medium Neutral Citation: Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWSC 262 Hearing dates: 7, 8 March 2023 Date of orders: 27 March 2023 Decision date: 27 March 2023 Jurisdiction: Common Law Before: Basten AJ Decision: (1) Dismiss the class 4 proceeding transferred from the Land and Environment Court with costs, including costs incurred in that Court. (2) Order that the defendant pay the plaintiff an amount based on the last payment made by the plaintiff on 27 May 2021, including interest, to be calculated by the parties. (3) Direct that, subject to order 4, the plaintiff pay the Council's costs of the proceedings commenced in this Court. (4) Grant the plaintiff leave to file submissions within 28 days as to any proposed variation of order 3, with the Defendant having 14 days to file a written submission in response. Catchwords: LIMITATION OF ACTIONS – statute limiting recovery of rates paid to Council – Recovery of Imposts Act 1963 (NSW), s 2(1) – limitation period 12 months from date of payment – whether s 2(1) disapplied – challenge to validity of impost, but no recovery claimed under Local Government Act – whether Local Government Act allowed a claim for recovery of overpayment – whether different limitation period specified LOCAL GOVERNMENT – rates and charges – challenge to Council's categorisation of land as "mining land" – consent orders filed in Land and Environment Court – land recategorised as "farm land" – claim for recovery of rates paid to council calculated as for mining land RESTITUTION – statutory claim for repayment of rates – action at common law based on restitution – proceedings seeking relief in separate courts – reasonable doubt as to correct court – no abuse of process – defence of Anshun estoppel Legislation Cited: Civil Procedure Act 2005 (NSW), s 149B Commonwealth Constitution, s 90 Environmental Planning and Assessment Act 1979 (NSW), s 94 Interpretation Act 1987, s 21 Land and Environment Court Act 1979 (NSW), ss 16, 20, 71 Local Government Act 1993 (NSW), Ch 7, Pt 1, s 220; Ch 15, Pt 3, ss 520, 521, 522, 525, 526, 527, 546, 560; Pt 8, ss 577, 578, 593, 594, 646; Ch 17, ss 672, 674, 675 Recovery of Imposts Act 1963 (NSW), ss 1A, 2, 3, 5, 6, 7 State Revenue Legislation Further Amendment Act 1995 (NSW), s 2(1); Sch 6 Explanatory Note for the State Revenue Legislation Further Amendment Bill 1995 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 27 October 1994 Cases Cited: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14 Baulkham Hills Shire Council v Wrights Road Pty Limited [2007] NSWCA 152; (2007) 153 LGERA 219 Bayside Council v Karimbla Properties (No 3) Pty Ltd (2018) 99 NSWLR 66; [2018] NSWCA 257 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Capital Duplicators Pty Ltd v Australian Capital Territory [No 2] (1993) 178 CLR 561; [1993] HCA 67 Champerslife Pty Ltd v Manojlovski (2010) 75 NSWLR 245; [2010] NSWCA 33 Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51; [1994] HCA 61 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107; (2005) 139 LGERA 140 Hookway v Racing Victoria Ltd (2005) 13 VR 444; [2005] VSCA 310 Karimbla Properties v Council of the City of Sydney (2017) 222 LGERA 385; [2017] NSWLEC 75 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Mangoola Coal Operations v Muswellbrook Shire Council [2021] NSWCA 46 Meriton Apartments Limited v Council of the City of Sydney (2011) 80 NSWLR 541; [2011] NSWLEC 65 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Queensland Alumina Ltd v Alinta DQP Pty Ltd [2007] QCA 387 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516; [2001] HCA 68 The Queen v Guode [2020] 267 CLR 141; [2020] HCA 8 Texts Cited: K Mason, JW Carter, GJ Tolhurst, Mason & Carter's Restitution Law in Australia (4th ed, 2021, LexisNexis) Category: Principal judgment Parties: Mangoola Coal Operations Pty Limited (Plaintiff) Muswellbrook Shire Council (Defendant) Representation: Counsel: Mr A Galasso SC / Mr C Ireland (Plaintiff) Mr P Tomasetti SC / Mr T To (Defendant)