Land and Environment Court New South Wales Medium Neutral Citation: TC (Tallwoods) Pty Ltd v Liverpool City Council (No 2) [2018] NSWLEC 60 Hearing dates: 23 April 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [19] Catchwords: PROCEDURE – consent orders allowing filing of two related Class 1 applications – application for expedition for hearing of the related Class 1 applications – discretionary factors justify expedition, specifically that the subject matter of the litigation will be lost – expedition granted Legislation Cited: Civil Procedure Act 2005 s 61 Uniform Civil Procedure Rules 2005 r 2.1 Cases Cited: Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 Marshall Rural Pty Ltd v Basscave Ltd [2017] NSWLEC 84 Shoalhaven City Council v Igor Lepan [2018] NSWLEC 57 TC (Tallwoods) Pty Ltd v Liverpool City Council [2018] NSWLEC 48 Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6 Texts Cited: Category: Procedural and other rulings Parties: TC (Tallwoods) Pty Ltd (Applicant) Liverpool City Council (Respondent) Representation: Counsel: Mr Stan Kondilios – solicitor (Applicant) Ms Keli Law – solicitor (Respondent) Solicitors: Hall & Wilcox Lawyers (Applicant) Matthews Folbigg Pty Ltd (Respondent) File Number(s): 2018/77195 Judgment 1. These proceedings first came before me on 11 April 2018 by way of a Summons filed 9 March 2018, commencing a Class 4 application seeking judicial review of a decision of Liverpool City Council (Respondent Council) not to accept a purported development application (Application) made by TC (Tallwoods) Pty Limited (Applicant). By Notice of Motion filed 22 March 2018 the Applicant sought an order for the hearing of the Summons to be granted expedition. That Motion was heard by me on 11 April 2018 following which I gave judgment on 12 April 2018 and made orders, inter alia, granting expedition: TC (Tallwoods) Pty Ltd v Liverpool City Council [2018] NSWLEC 48 (the first Tallwoods decision). 2. In paragraph 54 of my judgment of 12 April 2018, I stated as follows: 54. Although the Court is yet to determine whether the Applicant should be granted the relief it seeks in its Summons, it follows from the hearing of the Motion seeking expedition of the Summons hearing, that in the event of the Applicant being successful on the Summons, (that is it succeeds in obtaining one or more of the declarations it seeks as relief), then its efforts in seeking expeditious consideration by the Court of the Application would be rendered nugatory if expedition was not also granted to the Class 1 application proceedings which must necessarily follow the Applicant being successful on the Summons. Therefore, in order for the Court to have the full parameters of the matters in issue before it, the Applicant should file a further notice of motion seeking expedition of the Class 1 proceedings which it would commence in the event that the Applicant is successful on the Summons. The hearing of the Summons would be heard concurrently with the hearing of this further notice of motion seeking expedition. Obviously, if the Applicant is not successful on the Summons, this further notice of motion would simply be dismissed. 1. With expedition granted for the Summons, the parties entered into discussions to determine whether an accord might be reached with respect to the conduct of the ongoing proceedings. Those discussions have been fruitful. An affidavit of Stan Kondilios sworn 20 April 2018, and filed in Court during the 23 April 2018 hearing, set out a summary of those fruitful discussions. As referred to in paragraph 7 of that affidavit, the Respondent Council by letter dated 16 April 2018 advised, inter alia, as follows: Thank you for lodging your Development Application with Liverpool City Council. In relation to the application, Council confirms the following matters: - Council's letter of rejection dated 7 February 2018 is withdrawn; - Council acknowledges that the development application was lodged on 25 January 2018; - The application has been allocated Development Application lodgement number DA 304/2018; and - Council has issued Receipt Number 3906374 dated 16 April 2018 in acknowledgment of payment of fees (copy attached). 1. As a consequence of the accord reached with the Council, the parties by consent sought orders that the Class 4 proceedings, which had been granted expedition in the first Tallwoods decision, be discontinued and that each party pay its own costs. The Court made those orders, being orders one and two in this judgment, and a Notice of Discontinuance was then duly filed in Court. 2. Then, by a new Notice of Motion, being a second in these proceedings, the Applicant sought, in sequence, firstly orders allowing the Motion to be filed and heard instanter, secondly orders allowing two Class 1 applications to be filed, and thirdly, those applications to be given expedition. The precise terms of the orders sought are as follows: 1. Upon the Applicant's undertaking to pay the appropriate filing fee, the Applicant is granted leave to file in Court this Notice of Motion. 2. This Notice of Motion be heard instanter. 3. Upon the Applicants undertaking to pay the appropriate filing fee, the Applicant is granted leave to file in Court the Class 1 Application (with respect to Development Application DA 72/2018) annexed to this motion. 4. Upon the Applicants undertaking to pay the appropriate filing fee, the Applicant is granted leave to file in Court the Class 1 Application (with respect to Development Application DA-304/2018) annexed to this motion. 5. That the hearing of both the Class 1 Applications be expedited and heard concurrently. 1. Ms Law, for the Respondent Council, indicated that her client did not oppose the Court giving leave for the Applicant's second Notice of Motion to be filed in Court and for the Motion to be heard instanter. Considering that it was appropriate to do so, the Court then made orders 3 and 4 as set out in this judgment, the new Motion was then duly filed. 2. Paragraphs 3 and 4 in Mr Kondilios' affidavit of 20 April 2018 described the two Class 1 Applications as follows: 3. The Super-lot Subdivision Development Application proceedings in the Land and Environment Court of NSW are brought by the Applicant as an appeal against the deemed refusal of Development Applciation DA 72/2018, for the subdivision into twelve (12) residential lots and four (4) residue lots and infrastructure and demolition at 225 and 235 Eighth Avenue, Austral NSW 2179 pursuant to s 97 Environmental Planning and Assessment Act 1979. 4. The Subdivision Development Application proceedings in the Land and Environment Court of NSW are brought by the applicant as an appeal against the deemed refusal of the Development Applciation lodged 25 January 2018 for the subdivision of three (3) super-lots and construction of fifty-one (51) dwellings at 225 and 225A Eighth Avenue, Austral NSW 2179 pursuant to s 97 Environmental Planning and Assessment Act 1979. 1. By paragraph 5 of this affidavit, Mr Kondilios confirmed that the statements which had been contained in his earlier affidavit, filed with the Court on 22 March 2018 for the purposes of the earlier Notice of Motion (the subject of the first Tallwoods decision) remained current and unchanged. 2. With Ms Law for the Respondent Council then confirming that her client did not oppose the orders sought by the Applicant, the Court than made orders 5 and 6 allowing the Class 1 Applications to be filed in Court. 3. Returning to Mr Kondilios's 20 April 2018 affidavit, paragraphs 10 to 14 are material to the fresh application for expedition now before the Court, which is now in respect of the two Class 1 Applications. 10. For the reason(s) set out at paragraph 54 of His Honours decision, the Applicant moves the Court in circumstances where the DA for Subdivision is now receipted as though accepted on 25 January 2018 for the relief sought in the Notice of Motion to which this Affidavit refers. 11. The Notice of Motion seeks relief in the same terms for the Super-lot Subdivision Development Application as that is an application which has not proceeded owing to the previous dispute concerning the DA of 25 January 2018 and is an enabling application to the DA of 25 January 2018. 12. The Subdivision Development Application (DA 304/2018) is not an Integrated Development. The appeal right of the Application commenced 40 days from the date of lodgement (sic) of the application on 25 January 2018. 13. Accordingly, the Application accrued its appeal right from 7 March 2018. 13. The Super-lot Subdivision Development Application (DA 72/2018) is not an Integrated Development. The appeal right of the Application commenced 40 days from the date of lodgement of the application on 25 January 2018. Accordingly, the Application accrued its appeal right from 7 March 2018. 14. The Applicant did not commence Class 1 Proceedings with expedition with respect to Super-lot Subdivision Development Application (DA 72/2018) as the Applicant always sought to appeal the two development applications together and save costs as it intends to appeal the two proceedings in parallel fashion By hearing the appeals concurrently, any merit concern the Respondent holds in relation to inconsistency between the applications can be resolved by directions for amendments or conditions if it be an issue and save costs. 1. With the new Motion on foot and the two Class 1 Applications now filed, all that remained for the Court to decide was whether the Class 1 Applications should be granted expedition as sought by the Applicant in its proposed order 5 in its Motion. Ms Law indicated that the Respondent Council did not oppose the Applicant's Motion for expedition, confirming that she had already determined which members of counsel would be available to be briefed, their days of availability and, with respect to evidence, that one of the Council's internal planners, Mr George Nehme, had commenced the consideration and assessment of the applications. Mr Nehme would be the sole expert called for the hearing and his days of availability had been identified. 2. The Court confirmed to the parties that despite there being an accord between them and so consent orders are sought, the Court must independently determine whether or not a fair and just outcome will be achieved if the orders as sought are made and that by doing so, it would constitute a proper application of the law. See: [22]-[24] in Shoalhaven City Council v Igor Lepan [2018] NSWLEC 57. In the case of applications for expedition, it was necessary for the Court to be entirely satisfied that an order for expedition could be practically accommodated within the Court's listings. In short, there was no point expediting the hearing of proceedings if there was not a commissioner or judge available within the nominated timeframe. As both the Court and Mr Kondilios had investigated available hearing dates prior to the hearing, discussion occurred as to whether the Register would be able to accommodate an order for expedition, given the parties confirmed that just a day, possibly two at the outside, would be required. 3. For completeness I confirm that with respect to the Court's ability to grant the expedition sought by the Applicant, s 61 of the Civil Procedure Act 2005 provides for the Court's power to, "by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings". 4. The Uniform Civil Procedure Rules 2005 similarly provides: 2.1 Directions and orders The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings. 1. With the Court having heard that the circumstances as described in Mr Kondilios earlier affidavit, filed with the Court on 22 March 2018, remained current and unchanged, the Court again reviewed that evidence and then reread paragraphs [29]-[32] and [34]-36] in the first Tallwoods decision: 29. In short, the Applicant has entered into put and call options for the purchase of the two lots comprising the Land from different vendors. The essential terms of each is as follows. (1) With respect to the option to purchase 225 Eighth Avenue: (a) Purchase price $4,300,000. (b) Option fees paid to date: $1,030,000. (c) Option expiry date: 22 August 2018. (d) Balance payable on completion: $3,270,000. (2) With respect to the option to purchase 235 Eighth Avenue: (a) Purchase price: $5,873,125. (b) Option fees paid to date: $1,293,636 plus $23,000 per month from 1 February 2018. (c) Option expiry date: 18 July 2018. (d) Balance payable on completion: $4,579,489. 30. In summary, the Applicant informed the Court that it has paid option fees of $2.3 million and is liable to pay a further $7.9 million to settle the Land. It has, in addition, paid numerous other (Council) fees in relation to the Application (despite it having been rejected). The fees paid to Council to date have not been insubstantial, amounting to $77,193.20. 31. The Applicant submitted that the purpose of the options was to enable it to seek and obtain consent prior to being obliged to complete the purchases. It further submitted that, in order to secure finance to complete the purchases, it needs to obtain development consent. 32. The Applicant noted that it has explored seeking finance without development consent, and has explored extending the options to complete the purchases, however that neither of these alternatives have proved to be available. ... 34. The Applicant argued that the rejection of the Application has therefore defeated the purpose of the Applicant's contractual arrangements and exposed the Applicant to significant financial hardship. This financial hardship arises as, if the Applicant does not obtain a development consent, it will not be able to raise finance to complete the purchase, thus exposing it to substantial financial losses (being the option fees of $2.3 million, and the $23,000 per month, plus expenses) and/or damages if the put option is exercised and the Applicant is not able to complete. 35 The Applicant argued that it is not at fault for this financial hardship. It contended that it allowed sufficient time to make a development application and to have that application determined by the Respondent Council, or the Court on appeal. It noted, as above, that it has investigated finance on the basis of no development consent, and extending the options, and has thus "done everything it could to avoid the hardship". 36. The Applicant argued that without the matter being heard expeditiously, the subject matter of the proceedings will be lost. That is, the options expire on 18 July 2018 and 22 August 2018. If the matter is not determined prior to these dates, the subject of the proceedings will be lost as the Applicant will not be able to obtain financing to acquire the Land. 1. The Court has decided that its reasons for granting expedition in relation to the Motion seeking expedition the subject of the first Tallwoods decision, remain just as apposite to the Motion seeking expedition of the Class 1 Applications. I adopt the following passages [42]-[43], [47] and [50] in the first Tallwoods decision for the purposes of this judgment. 42. From the Applicant's perspective, potential loss of the subject matter of the litigation is a factor of critical importance. The Court accepts that there is a justifiable basis to acknowledge the Applicant's concern that time is truly "of the essence" in this case where by reason of an alleged potential misapplication or misinterpretation of the law by the Respondent Council, the Applicant may be shut out from securing consent for a development, or, at the least, having the merits of the Application properly considered. The Respondent Council's approach of informally rejecting, rather than refusing, the Application meant that the merits (or otherwise) of the Application have not yet been considered. If the Applicant's case - that the Application was improperly rejected - is not heard expeditiously, then it is highly likely that by mere effluxion of time the opportunity to have the merits (or otherwise) of its proposal considered will be denied to it. 43. The Court accepted that by reason of the contractual arrangements pertaining to the acquisition of the Land, being the put and call option agreements, unless expedition is granted, it is highly likely the Applicant will not be able proceed with its case or that it would be futile to do so. In essence the Applicant seeks a pathway to have its Application considered on its merits. However, with the passage of time since it lodged its Application, the Applicant could be denied its interest in the Land before a hearing and determination of its Summons, let alone the hearing and determination of any subsequent Class 1 application (assuming it was successful on its Summons), should the normal Court hearing timeframes prevail. Only by the grant of expedition would the Applicant have an opportunity to press its case within a timeframe when it continues to have rights to the Land. If expedition is not granted (and hypothetically assuming the proceedings remain before the Court), if it is later found by the Court that the Respondent Council did erroneously reject the Applicant's Application, then an injustice would thereby be confirmed as, despite its success, the Applicant's then victory would be a Pyrrhic one because it could no longer claim or develop the Land. … 47. The Court is satisfied that the Applicant faces imminent hardship of a very serious nature. Apart from being denied development opportunities in relation to the Land which it might conceivably lose, the effective financial penalties it would face amount to millions of dollars together with substantial professional fees which could all be irretrievable. Even if the substantial fees paid to the Respondent Council are refundable, the denial of an opportunity to secure the subject land and then potentially develop it, through no fault of its own, whilst suffering millions of dollars of loss would be unconscionable. If an order for expedition has the potential to avoid such probable hardship, then the order should be made. … 50. As already explained, the immediate loss of money to the Applicant amounts to millions of potentially irrecoverable dollars, whilst the deprivation of its rights to development the subject Land with the proposed 51 dwellings can be anticipated to equate to tens of millions of dollars. Such huge sums of money being at stake clearly weigh in favour of an order for expedition being made. 1. In considering the above passages from my earlier judgment, I am firmly of the view that the principles of law expanded upon in that judgment at [25] and [27] with respect to the considerations relevant to a grant of expedition are just as applicable in relation to these two Class 1 Applications as they were with respect to the Applicant's Summons. Specifically, the relevant factors warranting expedition as set out by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at [42] – [43], as followed by me in my own decisions in Marshall Rural Pty Ltd v Basscave Ltd [2017] NSWLEC 84 at [19]-[20] and Wirrabara Village Pty Limited v The Hills Shire Council [2018] NSWLEC 6, are entirely pertinent and are satisfied by the Applicant with its current application for expedition. 2. Accordingly, having regard to the uncontested evidence set out in both affidavits of Mr Kondilios and after considering the submissions from the Applicant, and the willingness of the Respondent Council to consent to orders for expedition, the Court is satisfied that the Applicant has made out its case on its second Motion. I have decided that it is appropriate and just in the circumstances that I make the orders sought to expedite the Class 1 Applications. Orders 1. The Court orders: 1. The Class 4 proceedings commenced by Summons filed 9 March 2018, which were granted expedition by orders of the Court in [2018] NSWLEC 48 made 12 April 2018, be, by consent of both parties, discontinued; 2. Each party shall pay their own costs arising from and in relation to the Class 4 proceedings commenced by the Summons filed 9 March 2018. 3. Upon the Applicant's undertaking to pay the appropriate filing fee, the Applicant is granted leave to file in Court this Notice of Motion. 4. This Notice of Motion be heard instanter. 5. Upon the Applicants undertaking to pay the appropriate filing fee, the Applicant is granted leave to file in Court the Class 1 Application (with respect to Development Application DA 72/2018) annexed to this motion. 6. Upon the Applicants undertaking to pay the appropriate filing fee, the Applicant is granted leave to file in Court the Class 1 Application (with respect to Development Application DA-304/2018) annexed to this motion. 7. That the hearing of both the Class 1 Applications be expedited and heard concurrently. 8. The parties have leave to attend the Registrar forthwith to: 1. obtain a date for the hearing of both Class 1 proceedings; and 2. obtain such further case management orders which the Registrar deems necessary ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2018