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Adrenaline Pty Ltd v Bathurst Regional Council

Adrenaline Pty Ltd v Bathurst Regional Council

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Case Copied 11 May 2015 48 min read

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Court of Appeal

Supreme Court

New South Wales

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Medium Neutral Citation: Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123
Hearing dates: 31 March 2015; final submissions received 14 April 2015
Decision date: 11 May 2015
Before: Macfarlan JA at [1];
Ward JA at [2];
Leeming JA at [3]
Decision:
1. Grant leave to the respondent to rely on ground 1B of its proposed Amended Notice of Contention dated 1 April 2015, and direct the Council to file within 7 days an Amended Notice of Contention in accordance with that leave.
2. Appeal dismissed.
Catchwords:
APPEALS - notice of contention - whether respondent permitted to raise defences not run at trial - Council not permitted to run defences of causation or change of position - Council permitted to run defence of good consideration - whether question of law which was not fully argued, not determined by primary judge and not necessary to decide should be decided

LOCAL GOVERNMENT - power to fix fee for services - whether Council obliged to comply with Chapter 15 Part 10 of Local Government Act 1993 (NSW) when entering into contract for holding of motor racing events - whether general power to contract - Mount Panorama Motor Racing Act 1989 (NSW) - Council obliged to comply with Local Government Act

RESTITUTION - recovery of money paid under mistake - defence of good consideration - appellant not entitled to recover payments made having received the consideration for which it had bargained - Ovideo Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6; V ConvR 54-713, followed
STATUTORY CONSTRUCTION - multiple sources of power - where some sources of power expressly qualified - Anthony Hordern principle - relevance of belief of Council officers - relevance of text and structure of Act
Legislation Cited: Interpretation Act 1987 (NSW), s 50
Local Government Act 1993 (NSW), ss 8, 21-24, 67, 67A, 67B, 220, 377, 402, 404, 405, 608, 610, 610B, 610C, 610D, 610F, 611, 729
Local Government Amendment (Legal Status) Act 2008 (NSW)
Local Government Amendment (Planning and Reporting) Act 2009 (NSW)
Mount Panorama Motor Racing Act 1989 (NSW), ss 5, 11
Poor Relief Act 1601 (Eng)
Recovery of Imposts Act 1963 (NSW), ss 2, 4, 5
Retail Tenancies Reform Act 1998 (Vic), s 8
Supreme Court Act 1970 (NSW), s 75A
Cases Cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Armstrong v Boulton [1990] VR 215
Attorney General of New South Wales v Homeland Community Ltd [2015] NSWCA 15
Baulkham Hills Shire Council v Wrights Road Pty Ltd [2007] NSWCA 152; 153 LGERA 219
Bayside City Council v Telstra Corporation Ltd [2004] HCA 19; 216 CLR 595
Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; 206 LGERA 40
Carr v Thomas [2009] NSWCA 208
Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2; 89 ALJR 312
Environment Protection Authority…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCA 123
Decision Date: 11 May 2015

CaseChat Overview and Summary

Adrenaline Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning the recovery of fees paid to Bathurst Regional Council. The dispute arose from Adrenaline Pty Ltd's contention that it had paid fees for the holding of motor racing events at Mount Panorama under a mistaken belief that the Council had the power to charge such fees. Adrenaline Pty Ltd sought to recover these payments.

The Court of Appeal was required to determine several legal issues. These included whether the Council was permitted to raise defences not pursued at the trial, specifically the defences of causation and change of position, and whether it could rely on the defence of good consideration. The court also had to consider whether the Council was obliged to comply with Chapter 15 Part 10 of the *Local Government Act 1993* (NSW) when entering into contracts for motor racing events, or if its powers were solely governed by the *Mount Panorama Motor Racing Act 1989* (NSW). Finally, the court had to decide whether to determine a question of law that was not fully argued before the primary judge and was not necessary for the primary judge's decision.

The Court of Appeal held that while the Council was not permitted to rely on the defences of causation or change of position, it was entitled to raise the defence of good consideration. Applying the principle from *Ovideo Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd*, the court found that Adrenaline Pty Ltd was not entitled to recover the payments made, as it had received the consideration for which it had bargained. The court also determined that the Council was obliged to comply with the *Local Government Act 1993* (NSW) in addition to the *Mount Panorama Motor Racing Act 1989* (NSW), interpreting the relevant statutory provisions in accordance with the "Anthony Hordern principle" concerning multiple sources of power.

The Court of Appeal granted the respondent leave to rely on a specific ground of its proposed Amended Notice of Contention and directed the Council to file an amended notice accordingly. Ultimately, the appeal was dismissed.

Orders

Orders of the court

1. Grant leave to the respondent to rely on ground 1B of its proposed Amended Notice of Contention dated 1 April 2015, and direct the Council to file within 7 days an Amended Notice of Contention in accordance with that leave.

2. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Adrenaline Pty Ltd v Bathurst Regional Council [2015] NSWCA 123
Hearing dates:	31 March 2015; final submissions received 14 April 2015
Decision date:	11 May 2015
Before:	Macfarlan JA at [1]; Ward JA at [2]; Leeming JA at [3]
Decision:	1. Grant leave to the respondent to rely on ground 1B of its proposed Amended Notice of Contention dated 1 April 2015, and direct the Council to file within 7 days an Amended Notice of Contention in accordance with that leave. 2. Appeal dismissed.
Catchwords:	APPEALS - notice of contention - whether respondent permitted to raise defences not run at trial - Council not permitted to run defences of causation or change of position - Council permitted to run defence of good consideration - whether question of law which was not fully argued, not determined by primary judge and not necessary to decide should be decided LOCAL GOVERNMENT - power to fix fee for services - whether Council obliged to comply with Chapter 15 Part 10 of Local Government Act 1993 (NSW) when entering into contract for holding of motor racing events - whether general power to contract - Mount Panorama Motor Racing Act 1989 (NSW) - Council obliged to comply with Local Government Act RESTITUTION - recovery of money paid under mistake - defence of good consideration - appellant not entitled to recover payments made having received the consideration for which it had bargained - Ovideo Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6; V ConvR 54-713, followed STATUTORY CONSTRUCTION - multiple sources of power - where some sources of power expressly qualified - Anthony Hordern principle - relevance of belief of Council officers - relevance of text and structure of Act
Legislation Cited:	Interpretation Act 1987 (NSW), s 50 Local Government Act 1993 (NSW), ss 8, 21-24, 67, 67A, 67B, 220, 377, 402, 404, 405, 608, 610, 610B, 610C, 610D, 610F, 611, 729 Local Government Amendment (Legal Status) Act 2008 (NSW) Local Government Amendment (Planning and Reporting) Act 2009 (NSW) Mount Panorama Motor Racing Act 1989 (NSW), ss 5, 11 Poor Relief Act 1601 (Eng) Recovery of Imposts Act 1963 (NSW), ss 2, 4, 5 Retail Tenancies Reform Act 1998 (Vic), s 8 Supreme Court Act 1970 (NSW), s 75A
Cases Cited:	Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Armstrong v Boulton [1990] VR 215 Attorney General of New South Wales v Homeland Community Ltd [2015] NSWCA 15 Baulkham Hills Shire Council v Wrights Road Pty Ltd [2007] NSWCA 152; 153 LGERA 219 Bayside City Council v Telstra Corporation Ltd [2004] HCA 19; 216 CLR 595 Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; 206 LGERA 40 Carr v Thomas [2009] NSWCA 208 Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2; 89 ALJR 312 Environment Protection Authority…