GEE v COUNCIL OF THE CITY OF GOSFORD & ANOR [2003] NSWCA 157

New South Wales Court of Appeal

CITATION : GEE v COUNCIL OF THE CITY OF GOSFORD & ANOR [2003] NSWCA 157 HEARING DATE(S) : 16 June 2003 JUDGMENT DATE : 16 June 2003

JUDGMENT OF : Sheller JA DECISION : I order an amendment to be made by the Council of the City of Gosford within 48 hours to the form of consent order by amending the title to read "In the Supreme Court of New South Wales, Court of Appeal, Sydney Registry"; I order that the first respondent, Council of the City of Gosford, have an indemnity certificate pursuant to s6 of the Suitors Fund Act 1951 in respect of the appeal by Elizabeth Gee against the orders made in the Land and Environment Court.

CATCHWORDS : Appeal - Costs - Suitor's fund - Appeal resolved by consent order LEGISLATION CITED : Suitors Fund Act 1951 CASES CITED : Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491 R v Hookham (No 2) (1993) 32 NSWLR 345 Elizabeth Gee - Appellant PARTIES : Council of the City of Gosford - First Respondent Richard Whitington - Second Respondent FILE NUMBER(S) : CA 40780/02 COUNSEL : M C Fraser - First Respondent Abbot Tout - Appellant SOLICITORS : P J Donnellan & Co - First Respondent Michael Bowe - Second Respondent

LOWER COURT Land & Environment Court JURISDICTION : LOWER COURT 40175/01 FILE NUMBER(S) : LOWER COURT Pain J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40780/02

SHELLER JA

Monday, 16 June 2003 GEE v COUNCIL OF THE CITY OF GOSFORD & ANOR Judgment (Application) 1 SHELLER JA: This is an application by the Council of the City of Gosford for the grant to it of an indemnity certificate pursuant to s6 of the Suitors Fund Act 1951 in respect of an appeal by Elizabeth Gee, being appeal number CA 40780/02, which was resolved by a consent order made and entered on 20 March 2003 setting aside the orders made in the Land and Environment Court on 19 August 2002 by Justice Pain. 2 The consent orders went on to order that the appeal be upheld and made a declaration that Development Consent 11672/01 dated 27 July 2001 was invalid and ordered the respondent to pay the appellant's costs of the appeal and the costs in the court below. The other respondent was Richard Whitington, who was, I am told, the beneficiary of the development consent. 3 When the matter was called on this morning, though they had been given notice of this application by letters to the respective solicitors dated 10 June 2003, together with copies of the notice of motion and the supporting affidavit of Patrick Joseph Donnellan, neither the appellant, Elizabeth Gee, nor Mr Whitington appeared. 4 In a letter of 28 April 2003 the solicitors for the appellant, Abbott Tout, wrote to P J Donnellan & Co indicating they were instructed not to consent to this application. 5 Counsel for the applicant, Council of the City of Gosford, read in support of the application the affidavit of Patrick Joseph Donnellan, sworn 26 May 2003, which sets out the general background of the matter, in particular in the Land and Environment Court where there was an issue as to whether the development consent had been given or signed by a person with due delegation from the Council to do so. 6 This turned upon the meaning of part of the instrument of delegation. Justice Pain was persuaded that, properly understood, the delegation did duly delegate to the person who signed the development consent authority to do so. The point was a point of construction of the form of the authority. 7 The appellant's grounds of appeal challenged the validity of that construction. Following the institution of the appeal, the Council sought and obtained advice from senior counsel who, relevantly, said that the appellant's contention that the exercised power under the delegation was excluded was the only rational interpretation that could be placed on the terms of the delegation. 8 Senior counsel advised that the appeal ought to be resolved by indicating no opposition to the Court to making a declaration as to the invalidity of the consent. Mr Donnellan said that after due consideration he received instructions from the Council to accept that advice. Accordingly, the consent orders to which I have referred were made. 9 Section 6(1) of the Suitors Fund Act provides that: "If an appeal against the decision of a court: (a) to the Supreme Court on a question of law or fact; …. succeeds, the Supreme Court may on application, grant to the respondent to the appeal or to any one or more of several respondents to the appeal an indemnity certificate in respect of the appeal."