Leichhardt Council v GRC Projects Pty Ltd ACN 135 672 294 (in liquidation) [2014] NSWLEC 122

Land and Environment Court New South Wales

Medium Neutral Citation: Leichhardt Council v GRC Projects Pty Ltd ACN 135 672 294 (in liquidation) [2014] NSWLEC 122 Hearing dates: 14 July 2014 Decision date: 14 July 2014 Jurisdiction: Class 5 Before: Preston CJ Decision: (1) The matter proceed to a hearing and a determination in the absence of the defendant. (2) The matter be adjourned to 8 August 2014. Catchwords: PRACTICE AND PROCEDURE - criminal proceedings - order that accused person appear to answer to offence charged - accused person does not obey order to appear - motion seeking an order that matter be heard and determined in absence of accused person - requirements for such order under s 250 of Criminal Procedure Act 2005 - order made Legislation Cited: Corporations Act 2001 ss 471B, 477(2)(a), 500 Criminal Procedure Act 1986 s 246, 250, Div 2 Environmental Planning and Assessment Act 1979 ss 76A(1), 125(1) Category: Principal judgment Parties: Leichhardt Council (Prosecutor) GRC Projects Pty Ltd ACN 135 672 294 (in liquidation) (Defendant) Representation: Mr D A Buchanan SC with Ms A C Hemmings (Prosecutor) No appearance for the defendant Pikes & Verekers (Prosecutor) No appearance for the defendant File Number(s): 50796 of 2013 Publication restriction: No

Judgment 1The defendant, GRC Projects Pty Ltd, has been prosecuted for an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 ('the Act') in that, between about 17 October and 11 November 2011, it carried out development comprising the demolition of part of a building on land known as 1-13 Parramatta Road, Annandale, otherwise than in accordance with a development consent which had been obtained and was in force, contrary to s 76A(1) of the Act. 2The proceedings were commenced by summons on 15 October 2013 seeking, and the Court made, an order under s 246 of the Criminal Procedure Act 1986 that the defendant appear before the Court on 29 November 2013 to answer to the offence charged in the order. 3The summons and order, and accompanying affidavits, were served on the defendant on 21 October 2013 by leaving it at the registered office of the defendant, namely, at Gertos Savell Katos, 164 Parramatta Road, Camperdown. 4On 4 November 2013, the solicitors for the prosecutor, Leichhardt Council, received notification of the appointment of a liquidator of the defendant. It would appear from documents of the liquidators that they had been appointed on 26 October 2012 as liquidators of creditors' voluntary liquidation. 5On the same day, the prosecutor's solicitors wrote to the liquidator enclosing a copy of the filed summons commencing the proceedings against the defendant. The Court had endorsed on the summons that it was returnable on 29 November 2013. The prosecutor's solicitors asked the liquidators their attitude to the proceedings and whether the liquidators intended to defend the proceedings. 6The liquidators responded to the prosecutor on 7 November 2013, confirming their appointment as liquidators but suggesting that the proceedings against the defendant were stayed pursuant to s 500 of the Corporations Act 2001. 7On 19 November 2013, the prosecutor's solicitors replied to the liquidators, pointing out that s 500 of the Corporations Act did not apply to the commencement and maintenance of criminal proceedings against the defendant, but rather only to civil proceedings, and that s 471B of the Corporations Act did not apply to bar the commencement of the proceedings as the defendant company was not being wound up in insolvency or by the Court, and there was no provisional liquidator of the company. The solicitors asked if the liquidators had counsel's advice to the contrary. The solicitors requested that the liquidators enter an appearance on behalf of the defendant company in liquidation, advise of the approach that the liquidators intend to take to the proceedings, and advise whether the liquidators intended to be represented at the return of the summons on 29 November 2013. The solicitors gave notice that on 29 November 2013 they intended to apply to the Court for leave to amend the name of the defendant to add after the company name the words "(in liquidation)" and, if there was no appearance for the defendant, to proceed on a hearing of the charge in the absence of the defendant. 8On 21 November 2013, the liquidators replied, advising that they did not contest the Council's solicitors' interpretation of the Corporations Act; the liquidators were without funds to seek legal advice or to be represented; and consequently they did not intend to appear in the proceedings or contest the submissions the Council intended to make. 9On 29 November 2013, the day on which the Court had ordered the defendant to appear before the Court to answer the offence charged in the order, there was no appearance for the defendant. The Court granted leave to the prosecutor to amend the name of the defendant to "GRC Projects Pty Ltd ACN 135 672 294 (in liquidation)." The proceedings were adjourned to 20 December 2013. The amended summons was later served on the defendant. 10In the meantime, James Jordan of Jordan Djundja Lawyers, on 10 December 2013, filed a notice of appearance for the defendant, but on 12 December 2013 filed a notice of intention to file a notice of ceasing to act, and then on 23 December 2013 filed a notice of ceasing to act for the defendant. 11The defendant did not appear on the date to which the matter had been adjourned of 20 December 2013 or on subsequent days to which the matter was adjourned of 14 February 2014, 28 February 2014 or 20 June 2014. 12On 10 June 2014, the prosecutor filed a notice of motion seeking an order under s 250 of the Criminal Procedure Act that the matter proceed to a hearing and a determination in the absence of the defendant. 13On 20 June 2014, the Court fixed the hearing of the prosecutor's motion for today, 14 July 2014. Impliedly, the Court also adjourned the substantive matter to today. 14The notice of motion and accompanying affidavits in support of the motion, and notification of the date for hearing of the motion, were served on the liquidators as well as on the defendant at its registered office. Notwithstanding the appointment of the liquidators, the registered office of the defendant remained, and still remains, at 164 Parramatta Road, Camperdown. 15The defendant has not appeared again today on the hearing of the motion or the matter. The matter was called three times outside the Court but there was no appearance for the defendant. 16Section 250 of the Criminal Procedure Act provides: If the accused person does not appear on the day and at the time and place set by an order under Division 2 (or on a day to which a hearing has been adjourned), the court may, if satisfied that the order was served on the accused person: (a) proceed to hear and determine the matter in the absence of the accused person, or (b) if the court thinks the matter should not proceed on that day or without the accused person, adjourn the hearing to a specified time and place and make an order for the apprehension of the accused person under Division 2. 17The first precondition to making an order under s 250 is that the defendant has not appeared on the day and at the time and place set by an order under Division 2 or on a day to which a hearing has been adjourned. The order under Division 2 in this case is the order under s 246 that the defendant appear before the Court to answer the offence charged in the order. The day, time and place specified in the order made by the Court in this case was 29 November 2013 at 9.30 in the Court in Sydney. The defendant did not appear at that time. The hearing was adjourned to various days - 20 December 2013, 24 and 28 February 2014, 20 June 2014 and today, 14 July 2014 - but the defendant has not appeared on any of these days. 18The second precondition to making an order under s 250 is that the Court is satisfied that the order was served on the defendant. In this case, the evidence establishes that the defendant was served at its registered office with the order under s 246, as well as the summons and accompanying affidavits, on 21 November 2013. The evidence also establishes that the liquidators have been served with the summons and notified of the time and place set by the order at which the defendant was required to attend the Court to answer to the offence charged in the order. The evidence further establishes that the liquidators have been notified of the subsequent times and places to which the matter has been variously adjourned. 19Both the liquidators and the defendant at its registered office have been served with the notice of motion and accompanying affidavits, and the notification of the date set for hearing of the motion for the order under s 250 that the matter be heard and determined in the absence of the defendant. I am, therefore, satisfied that the order and other process have been served on the defendant. 20Upon the two preconditions being satisfied, the Court has a discretion under s 250 as to whether to proceed to hear and determine the matter in the absence of the accused person. In the circumstances of this case, it is appropriate to exercise the discretion to allow the matter to be heard and determined in the absence of the defendant. 21Under s 477(2)(a) of the Corporations Act, the liquidator of a company may defend legal proceedings in the name and on behalf of the company. In this case, the liquidators have expressly stated, by their letter dated 21 November 2013, that they do not intend to appear in the proceedings or contest the case against the defendant company. This statement of the liquidators is a statement of the defendant. No other circumstances have been raised that would suggest that it would be unfair or unjust for the Court to proceed to hear and determine the matter in the absence of the defendant. 22I therefore determine that it is appropriate to exercise the power under s 250. I do not consider it is necessary that the Court must proceed to hear and determine the matter in the absence of the defendant today (being the latest day to which the hearing has been adjourned from the original day of 29 November 2013 stated in the order under s 246) and that the Court may adjourn the hearing to another day. I do not read s 250(a) as precluding this course. 23Accordingly, I order that: (1)The matter proceed to a hearing and a determination in the absence of the defendant. (2)The matter be adjourned to 8 August 2014.