Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWCA 261

New South Wales Court of Appeal

CITATION: Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWCA 261

HEARING DATE(S): 20 September 2010 JUDGMENT OF: McColl JA at 1

EX TEMPORE JUDGMENT DATE: 20 September 2010

DECISION: Notice of motion of 9 September 2010 dismissed with costs

CATCHWORDS: PROCEDURE – civil – costs order – stay pending appeal - PROCEDURE – civil – interlocutory issues – interrogatories – no issue of principle

Judiciary Act 1903 (Cth) LEGISLATION CITED: Uniform Civil Procedure Rules 2005 Environmental Planning and Assessment Regulation 2000 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWLEC 83

PARTIES: Those Best Placed Pty Ltd - Applicant Tweed Shire Council - Respondent

FILE NUMBER(S): CA 2010/240352

COUNSEL: Applicant in person J A Ayling SC - Respondent

SOLICITORS: Applicant in person HWL Ebsworth - Respondent

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 2009/40719

LOWER COURT JUDICIAL OFFICER: Biscoe J

LOWER COURT DATE OF DECISION: 27/5/10

LOWER COURT MEDIUM NEUTRAL CITATION: [2010] NSWLEC 83

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/240352

McCOLL JA

20 September 2010

THOSE BEST PLACED PTY LIMITED v TWEED SHIRE COUNCIL JUDGMENT ex tempore 1 McCOLL JA: This is an application by notice of motion dated 9 September 2010 by Those Best Placed Pty Limited seeking an order staying a costs order made by Biscoe J on 27 May 2010 and also an order requiring the respondent to answer interrogatories as attached to the notice of motion. A request for an order that the applicant file notices pursuant to s 78B of the Judiciary Act 1903 (Cth) was abandoned. 2 The applicant is a company represented on the application by its managing director, Mr Crowther. Mr Crowther swears in his affidavit of 9 September 2010 that the applicant is "a start-up business, and has never traded, has no bank accounts, and is only intended to operate subject to grant funding, if successful." 3 The costs order the subject of the first application for relief was made by Biscoe J in proceedings in which his Honour acceded to the respondent's application pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 ("UCPR") for an order that proceedings filed in the Class 4 jurisdiction of the Land and Environment Court of New South Wales by the applicant be summarily dismissed: Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWLEC 83. 4 The position as to his Honour's costs order at the moment is that while the respondent has apparently notified the applicant and Ms Sandra Schultz, the second applicant in the Land and Environment Court proceedings, that it will seek to recover costs in the order of $53,000, it has taken no steps to have those costs assessed. Realistically, as Mr Ayling of Senior Counsel who appeared for the respondent informed the Court, the applicant (and Ms Schultz) are at no present risk of having the costs order enforced. 5 The summons seeking leave to appeal from Biscoe J's orders was filed on 19 July 2010. On 13 September 2010 the Registrar of the Court of Appeal ordered that the applicant provide security for the costs of the appeal in an amount of $7,000 within 28 days, that is to say, by 11 October 2010. When this matter was called on before the Registrar of the Court of Appeal this morning for an indication as to the position, the respondent indicated that it was prepared to agree to a stay of Biscoe J's costs order for a period coterminous with the expiry of the period within which the Registrar's order for the applicant to provide security operates, that is to say, by 11 October 2010. However, the applicant wishes the costs order to be stayed until at least the disposition of the application for leave to appeal and, if that application is successful, the disposition of the appeal. 6 Mr Crowther's affidavit deposes to the hardship he asserts will be occasioned by the costs order by reference to the personal circumstances of he and Ms Shultz, it being apparent, as I have said, that the applicant itself has no financial assets of any nature. Mr Crowther asserts that at some stage he, and I gather Ms Shultz, had to sell land whose development was the subject of the proceedings before Biscoe J and that that sale led to both of them losing substantial sums of money. Their remaining assets were apparently applied to purchase each a motor home and expended on other matters, in Mr Crowther's case, the repair of that motor home. 7 The motor home is Mr Crowther's sole asset. He deposed that it would have a market value of between $60,000 and $140,000. He indicated he was willing to offer a charge over that motor home in the event that the Court required a security deposit as a guarantee for future costs orders. The offer to provide a charge over the motor home was made in his affidavit of 17 November 2009 and reiterated in his affidavit sworn in support of this application for a stay of Biscoe J's costs order. 8 It is necessary to refer briefly to the nature of the proceedings before Biscoe J as set out in his Honour's comprehensive judgment. The applicant sought to advance complex proceedings before his Honour relating to an application to erect a shed with a bathroom on land in Upper Crystal Creek then owned by Mr Crowther and Ms Shultz. 9 A controversy developed between Mr Crowther, who at all relevant times appears to have represented Ms Shultz's interests as well, and the respondent concerning the latter's requirement that a report be produced demonstrating that sufficient land area and site conditions would exist to cope with the additional use to which a septic tank, I gather already servicing the subject land, might be subject as a result of the construction of a shed with a bathroom attached. Mr Crowther refused to provide a report and advanced numerous arguments as to why he should not be required to do so. Because he refused to provide that report, the respondent in due course refused the development application. The applicants sought to challenge that refusal before Biscoe J. The respondent, as I have said, sought to have the proceedings dismissed on the basis that the pleadings disclosed no reasonable cause of action. 10 It would be difficult in an application of this nature to summarise Biscoe J's comprehensive reasons. His Honour recognised that a very clear case was required before a litigant was prevented from pleading a case on the basis that no reasonable cause of action was disclosed. In so doing, his Honour, in my view, appropriately characterised the nature of the exercise the respondent invited him to embark upon. 11 The respondent's request for the report to which I have referred was made pursuant to cl 54 of the Environmental Planning and Assessment Regulation 2000 (NSW). His Honour concluded that the respondent was entitled to request that information under that regulation and, in doing so, rejected the applicant's submission that that request had been unlawful. It was the refusal to provide the report that led to the respondent refusing the development application. His Honour's conclusion that the request for the report was lawful, led his Honour to conclude, not surprisingly, if not merely for that reason, that the respondent was entitled to refuse development consent. 12 There were numerous other matters raised by the applicant before his Honour, which he summarised (at [13]–[16]), where he also summarised his reasons for concluding that those matters did not disclose any reasonable cause of action. 13 Mr Crowther relied on the application for leave to appeal as outlining the basis upon which he submits he has reasonable prospects of success on the leave application and ultimate appeal. A number of assertions are made in that document filed under tab 6 of the White Book, many of which invoke grounds for criticising an exercise of judicial review. It is difficult to discern the underlying criticism of his Honour's reasons or what error his Honour is said to have committed or that the applicant has any serious prospects of success on appeal. 14 It is a matter of some concern, that the only real prospect, subject of course to the security for costs order, in `these proceedings, is the further incurring of costs at the respondent's expense, the applicant being not in any position to meet its costs, and the personal applicant's financial position (which might otherwise be looked to secure the respondent's position as to costs) being for the reasons I have outlined, marginal if not very precarious. Biscoe J dismissed the proceedings in the interests of all parties before the associated costs became unmanageable. This was a subtle warning, which appears not to have found a home in the "heart" of the applicant. 15 There appears little prospect at this stage, if I were more positively inclined to the applicant's prospect of success on appeal, for the applicant to provide anything by way of security or a payment to the Court which could preserve the status quo insofar as the respondent is the present beneficiary of Biscoe J's costs order. I was inclined at one stage to grant a stay up to and including 11 October 2010 but as, realistically, the respondent will not be in a position to move on the enforcement of its order prior to that time, there appears little utility in doing so. I would therefore decline to grant the application for an order staying Biscoe J's costs order. 16 The second order the applicant sought was one to require the respondent to answer a series of interrogatories. These appear to be interrogatories referred to in Biscoe J's judgment (at [31]) which the respondent did not answer. The power to grant orders for interrogatories, is one which may be exercised at any stage of proceedings: UCPR 22.1. At the moment, with the exception of the application for leave to appeal, there are no current "proceedings", Biscoe J having dismissed the proceedings in the Land and Environment Court. Further, this Court is not a trial court but one in which on error being demonstrated on a discharge of the rehearing function, the Court may interfere or intervene in the orders made below. It is not appropriate in such circumstances, that this Court make orders requiring the respondent to answer interrogatories. I reject the application for that relief as well. 17 The orders of the Court therefore are that the notice of motion of 9 September 2010 is dismissed with costs.