Duke Investments Trust Pty Ltd v Leichhardt Municipal Council
[2000] NSWLEC 14
•11/24/1999
Land and Environment Court
of New South Wales
CITATION: Duke Investments Trust Pty Ltd v Leichhardt Municipal Council [2000] NSWLEC 14 PARTIES: APPLICANT:
RESPONDENT:
Duke Investments Trust Pty Ltd
Leichhardt Municipal CouncilFILE NUMBER(S): 10238 of 1999 CORAM: Talbot J KEY ISSUES: Development Application :- incorrect description of applicant
Development Application:- notification - substantial compliance
Amendment of Class 1 Application to correct name of party
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979 s 39
Environmental Planning and Assessment Regulation 1994 reg 48A
Supreme Court Rules 1970 Pt 8 r 8, Pt 20 r 1(3)
Land and Environment Court Rules 1996 Pt 10 r 1(3), Pt 10 r 2(3)CASES CITED: CSR Limited trading as The Readymix Group v Yarrowlumla Shire Council and Anor (unreported 40054 of 1985 2 August 1985);
RKO Pictures Inc v Cannon Screen Entertainment Pty Ltd [1990] BCLC 364;
Lazard Bros and Co v Midland Bank Ltd [1933] AC 289;
Tetlow v Orela Limited [1920] 2 Ch 24;
Alexander Mountain and Co v Rumery Limited [1948] 2 KB 436;
McInnes and Others v Wingecarribee Shire Council and Anor (1987) 64 LGRA 137DATES OF HEARING: 24/11/99 EX TEMPORE
JUDGMENT DATE :11/24/1999 LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr J J Bingham (Solicitor)
SOLICITORS:
Deacons Graham & James
Mr P J Schofield (Solicitor)
SOLICITORS:
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND Matter No. 10238 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 24 November 1999
Respondent
1. HIS HONOUR: In February 1999 an application for Development Consent was lodged with the respondent council. That application referred to the applicant's name, in the space provided for that information, as Duke Investments Trust Pty Ltd. Two signatures appeared on the application. Furthermore, in the box provided for the information regarding the applicant, a rubber stamp in the form of a company seal has been endorsed. The company identified on the common seal stamp is Propertylink Finance Pty Limited followed by an ACN number. The project manager for the subject development, Kerry Michael Joseph Dunn, explained to the Court that he forwarded instructions to the architect, Michael Hesse. Those instructions were to complete and lodge the development application.
2. Mr Dunn further explained that his role as project manager was to act for Propertylink Finance Pty Limited as representing the interests of investors in a unit trust. Propertylink is the trustee appointed under the terms of a trust deed. Mr Dunn identified the actual signatures on the development application form as being those of a director/shareholder and the company secretary of Propertylink Finance Pty Limited. He could not explain how the abbreviations Pty Ltd came to appear after Duke Investments. Mr Dunn produced a Trust Deed executed on 3 July 1998 between Propertylink Finance Pty Limited and Betape Pty Limited. That trust deed, so far as it is relevant, makes Propertylink Finance Pty Limited the trustee, as I have already mentioned, and provides that the trust fund held on the terms of the deed shall be called the Duke Investment Trust.
3. The development application was accompanied by a cheque in payment of the requisite fees due to the council, or at least the cheque was lodged at or about the same time. A copy of the cheque is in evidence and that cheque was drawn on an account styled Propertylink Finance Pty Limited ATF Duke Investment Trust. It is not in dispute that the initials ATF are intended to refer to the words “Acting as Trustee For” .
4. The receipt issued by the council on 19 February 1999 acknowledged a cheque received from Propertylink then referred in the body of the receipt to Duke Investments Trust. There is no reference to Pty or Limited or any other similar expression in the description of either Propertylink or Duke Investments Trust on the receipt.
5. Subsequently the development application was notified in accordance with statutory requirements applicable in March 1999. After amendments were made to plans later in the year the development application was re-notified according to the applicable regime which applied in October 1999.
6. In March 1999, LEP 20 applied. LEP 20 contains cl 24 which required in familiar terms that development for the purposes of, inter alia, residential flat buildings, which I understand the development application to relate to, is to be advertised in the same way and according to the provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act) which apply in respect of designated development. It is not necessary for me to tarry and concern myself with whether or not the amendments made to the EP&A Act in 1998 had any relevant impact on the effect of cl 24 as I understand that there is no dispute that cl 24 applied at that time, either pursuant to its own force or in accordance with the transitional regulations that were introduced to accommodate the first year of operation of the amendments.
7. Nevertheless the council purported to give, and indeed did give, notice of the proposed development to persons who were entitled to receive such a notice by letter of 2 March 1999 and also by relevant advertisement, and as I understand it, notice on the site at or about that same date. In each case the notice advised that the development application had been received from Duke Investments Trust Pty Ltd.
8. On 8 September 1999, LEP 147 was made. One of the provisions was to amend LEP 20 by deleting cl 24. This appears to be an amendment to reflect the changed regime for notification following the amendments in 1998 that I referred to a moment ago.
9. In August 1999 the council made Development Control Plan No 36 (the DCP). That DCP related to notifications under the EP&A Act and specifically provided for notification letters to be sent to persons who own or occupy land adjoining or neighbouring an application site. Clause 3.3 specifies that the letter of notification will include certain information which, inter alia, refers to the name of the applicant.
10. The council gave the notification to those persons who fell within the ambit of that clause by letter dated 25 October 1999 following the receipt of the amended plans. The letter of notification referred to the receipt of an amended development application from Duke Investments Trust Pty Ltd. It appears that a further notice was also published in a relevant newspaper. However the DCP does not appear to require the newspaper advertisement to include the name of the applicant. Nevertheless it did.
11. The original application class 1 lodged in these proceedings nominated the applicant as Duke Investments Trust Pty Ltd. That name reflects the information provided in the original development application. Apparently, no doubt following advice, the persons advising Propertylink Finance Pty Limited became aware of the fact that the development application had incorrectly described the applicant as Duke Investments Trust Pty Ltd, and that this apparent error had carried forward into the application class 1.
12. On 23 July 1999 the applicant's solicitor caused to be filed in Court an amended application class 1, which described the applicant as Propertylink Finance Pty Ltd ACN 074591469 “Acting As Trustee For Duke Investments Trust” . At the commencement of the hearing of this matter yesterday, Mr Bingham, solicitor appearing for the applicant, made a formal application for leave to amend the application class 1 in accordance with the document filed in Court on 23 July 1999. Mr Schofield, appearing for the respondent council, opposed the granting of leave. Broadly speaking, the issues raised by the council are that no development application has been received, given that the applicant described in the application form as Duke Investments Trust Pty Ltd was non-existent. Accordingly, there being no application lodged with the council in the first place, there could be no appeal from a deemed or actual determination of such an application.
13. Mr Bingham seeks to amend the development application so that in lieu of Duke Investments Pty Limited, the applicant's name is shown as Propertylink Finance Pty Limited acting as trustee for Duke Investment Trust. Regulation 48A made pursuant to the EP&A Act provides that a development application may be amended or varied by the applicant, but only with the agreement of the consent authority at any time before the application is determined.
14. Mr Bingham submits that the Court has the necessary power to provide the agreement of the council as the consent authority pursuant to s 39 of the Land and Environment Court Act 1979. Mr Schofield does not dispute the power of the Court to provide that agreement pursuant to s 39.
15. Having regard to the way in which the development application was drafted, the Court is satisfied that, notwithstanding the errors on its face, there was, nevertheless, a sufficient reference to the true applicant in two respects. Firstly, the recipient of the development application could, notwithstanding a submission by Mr Schofield to the contrary, not but notice that the document bore the imprint of a rubber stamped seal for the company Propertylink Finance Pty Limited. Secondly, the recipient would have been alerted to the existence of some entity bearing a description of Duke Investments Trust. I do not place any weight on the fact that the company shown under the applicant's name is Duke Investments Trust Pty Ltd as against the actual name of the trust fund, Duke Investment Trust. And it is appropriate for the development application to be amended so that it properly describes the applicant.
16. That, of course, is far from an end to the matter. Before dealing with the other matters, however, I should indicate that if the application class 1 can be maintained on foot, and accordingly the appeal remains within the Court's jurisdiction, the Court will be prepared to provide the necessary agreement of the consent authority as required by reg 48A so that the development application is amended in section 1 to properly describe the applicant in the manner to which Mr Bingham referred.
17. The question then arises as to whether the notifications in March and October 1999 were made in compliance with the respective requirements, as they applied at that time. Insofar as the notification that took place in October is concerned, Mr Schofield originally relied solely on that notification as being contrary to the provisions of the DCP. Following submissions by Mr Bingham to the effect that in accordance with his argument, the DCP had no application to modification of applications, which he says the plans lodged subsequently to the original plans was, then no notification under the DCP was required. There may be some substance in what Mr Bingham has to say but nevertheless that does not dispose of the point because thereafter Mr Schofield made it clear that if no notification was required in October, following receipt of the amended plans, then the notification in March was made contrary to the provisions of the LEP which still applied at that time. It remains, therefore, irrespective of Mr Bingham's submission about the applicability of the DCP, to determine whether a requirement that the name of the applicant be included in the notification is such that a failure to correctly describe the applicant amounts to a non-compliance which renders the notification invalid and of no effect.
18. The only direct authority in regard to an omission to describe an applicant in such a notice that has been referred to the Court, and indeed which is the only authority about which the Court is presently aware in this respect, is the decision by Cripps J, as he then was, in CSR Ltd trading as The Readymix Group v Yarrowlumla Shire Council and Anor (unreported No 40054 of 1985 2 August 1985). In that case there had been an application for consent to designated development. The appropriate notices failed to make any reference whatsoever to the name of the applicant, notwithstanding a requirement in reg 38, as it then was, that such a notice given under s 84(1c) of the Act shall indicate the name of the applicant.
19. Cripps J clearly dealt with the issue on the basis that substantial compliance with the provisions of the legislation was required. In that case, there being no reference to the name of the applicant whatsoever and that the identity of a developer about to undertake designated development having potentially significant environmental impact could be a matter of considerable concern to potential objectors, his Honour found that it was not open for the council to grant consent as a consequence of the failure to properly notify the development. His Honour made that finding following detailed arguments to the contrary.
20. I am satisfied that a requirement to identify an applicant for development consent in a notification by way of letter or advertisement, or however else, is a requirement that must be substantially complied with. There are any number of circumstances which come to mind which might lead to there being a technical non-compliance in the strict sense, ranging from the failure to provide all of the Christian names of a particular applicant, through to a misspelling or a description of an applicant which has no possible connection or bearing on the true identity of the person who is behind the development application.
21. In the present case the notification referred to Duke Investments Trust Pty Ltd. The Court has the evidence of Mr Dunn and from the documents that the entity loosely referred to as the Duke Investment Trust is the interest behind this application. I must hasten to indicate that the Court is well aware that a trust fund per se is not a legal person except through its trustee. However it is not unusual for there to be a reference to a particular fund by the name of the fund rather than by reference specifically to the trustee. Indeed it might be said, as Mr Bingham submits, that very often the trustee is no more than a formal company. When I mean a formal company, very often what is referred to as a shelf company, that has no other role in its corporate life except to administer the particular Trust, and that the public identification of the activities of the trustee is through the nomination of the trust fund.
22. The fact that the words Pty Ltd were added to the notification as a consequence of those abbreviated words being used in the development application, do not in my opinion detract from the effect of the notification that something bearing a description akin to Duke Investments Trust was involved in the development application. I am satisfied that there was an opportunity for any interested person to be led to a relevant line of inquiry which would disclose the true nature of the legal entity and the interests behind the development application.
23. As Cripps J recognised in the CSR case, I also recognise that in many instances a development application is made, as this one indeed was, by persons other than the owners, or the persons who intend to actually carry out the development. It is not uncommon, dare I say it is common, that development applications are lodged by architects, by town planners, by engineers, by all sorts of representative consultants, by purchasers, by persons who hold options; by and with, in those cases, the consent of the relevant owner of the land. Cripps J made the observation that if it was intended that the person who actually intended to carry out the development be identified in the notification, then perhaps some legislative amendment would be in order. He made that observation, as I indicated, in 1985. Not only has there been no amendment to that effect but there have been amendments, indeed, as I have just outlined in the identification of the statutory regime which the council relied upon, most recent amendments which maintained the requirement for the description of the applicant rather than the person who may truly be the legal entity that intends to carry out the development.
24. Having regard to the whole of the circumstances, therefore, I am satisfied that the relevant requirements both in March 1999 and in October 1999 regarding the provision of the name of the applicant were substantially complied with and that the extent of the non-compliance was not such that would invalidate or render useless the notification that took place.
25. Again, however, that is not necessarily an end to the matter. The fact is that the applicant before the Court at this point does not exist. There is no company, Duke Investments Trust Pty Limited. The Court has been referred primarily to Pt 10 of the Land and Environment Court Rules, and in particular r 1(3) which provides that “if there has been a mistake in the name of a party the person intended to be made the party may apply for amendment under this Part as if the person were indeed a party” . Mr Bingham brings his application to amend on behalf of Propertylink Finance Pty Limited acting as trustee for Duke Investments Trust. Presumably that ought to be amended further to refer to Duke Investment Trust, and I will treat the application on that basis. In other words, the application is made on behalf of the person intended to be made the party. Relevantly the same provision, with some minor differences which are not presently relevant, is found in the Supreme Court Rules, Pt 20 r 1(3). This power should not be narrowly construed. In my view it covers cases where there is a misnomer, where there is clerical error or misdescription, extending even to a real mistake as to the name of the party. Misnomer is generally to be regarded as a mistake in naming a person or the use of a wrong name or designation. In Ritchie's Supreme Court Practice, Supreme Court Procedure, there is a note to the effect that the term misnomer applies where there has been a genuine error in the name given to a party but where the error is not so significant as to have actually misled the intended defendant.
26. Part 10 r 2(3) of the Land and Environment Court Rules, which only applies where a period of limitation has expired, confirms the width of the power by providing that notwithstanding the expiration of that period, nevertheless if the mistake was not misleading nor such as to cause reasonable doubt as to the identity of the person intended to be the party, the Court may correct the mistake.
27. Mr Bingham has referred the Court to a decision of the Queen’s Bench Division by Schiemann J in RKO Pictures Incorporated v Cannon Screen Entertainment Pty Limited reported in Butterworth's Company Law Cases [1990] BCLC 364. That case conveniently summarises a number of authorities referred to by both parties in the course of argument. The particular circumstances in RKO Pictures related to a case where solicitors had instituted the proceedings in the name of a party to a contract which had ceased to exist as a separate entity. This ceasing as a consequence of a merger was unknown to the solicitors, and, it appears, to the defendants.
28. Shearman J recognised that there was no potential problem in relation to the limitation period and contemplated that if the application to strike the matter out was successful, then the result would be that the plaintiff would merely start again. Not significantly different from the present circumstance insofar as the right of the applicant, whoever that might be, in this case to start all over again, going back to whatever stage it may be necessary in order to place itself in the position where it has a formal right of appeal.
29. Reference was made in the course of the judgment by Shearman J to Lazard Bros and Co v Midland Bank Ltd [1933] AC 289, where proceedings were started against a Russian bank which had ceased to exist some years before. In that case the Court treated the proceedings as a nullity. Shearman J was able to distinguish that case, as he was able to do with others which were referred to such as Tetlow v Orela Limited [1920] 2 Ch 24 where after delivery of the statement of claim and defence it was discovered the plaintiff had been dead for nearly eight years. And in that case the Court could not justify creating a plaintiff in an action for the first time.
31. Of course RKO Pictures dealt with different provisions but there were, nevertheless, two provisions that assist in an understanding of the way in which the logic was applied. One was that the Court may order the removal of any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party or order any following persons to be added, namely any person who ought to have been joined as a party, or secondly, an order that the Court may allow the plaintiff to amend his writ to correct the name of a party, notwithstanding that it is alleged the effect of the amendment will be to substitute a new party. Schiemann J, after saying that he could see no merit at all in the contention of counsel for the defendants, went on:-30. Another reference was to Alexander Mountain and Co v Rumere Limited [1948] 2 KB 436 where an action had been commenced in the name of a firm where the business had been carried on by a person since deceased. It would appear that the Court in that case treated the case as one of mere misnomer, holding that the person who in fact was entitled to bring the action had, in practice, given instructions to the solicitors to bring that very action.
- I am at a loss to see why his clients thought fit to pursue it. If successful it will only cause delay and the payment by the plaintiff of a further court fee and conceivably some extra costs. In my judgment the amendment can be made, both under Ord 15 and under Ord 20. Further the court has, in my judgment, an inherent jurisdiction which it ought to exercise to discourage people from wasting time and money.
- The function of rule 1(3) is to give the person referred to in it locus standi to move under (1).
33. Subrule 1 provides that:-
- The Court may, at any stage of any proceedings, on the application of any party or without any such application, order, on terms, that any document filed in the proceedings be amended in such manner as the Court thinks fit.
34. And at the foot of p 143 Priestley J made the following observation, which is of considerable assistance in this case:-
- The Courts have adopted, when construing rules of the general kind in question in the present case, an approach which gives the empowering words in such rules as full a meaning as they can reasonably bear in their context.
35. I have already expressed my view which appears to be not inconsistent with the approach taken by the Court of Appeal in McInnes .
34. Part 8 r 8 of the Supreme Court Rules applies in this Court and further facilitates the Court's power to deal with the present circumstances. The facts in McInnes were different to the present, in that the Court was there dealing with the nomination of objectors as the parties to an appeal against designated development. The Court recognised the importance of allowing a chance for objectors to development to have their views fully heard.
35. In the present case the architect, Mr Hesse, clearly made a mistake as to the correct description of his client. This mistake was compounded by Mr Dunn, either by overlooking it or not being made aware of the error. There has not, in my opinion, been any injustice or prejudice to the council or any potential objector. I have already discussed that aspect, to some extent, in the context of the compliance with the notification procedures. It must be understood that the real substance of the development application relates to the land and the proposed development.
36. Mr Schofield has suggested that the application could be amended by substituting the owners. I understood his submission to be on the basis that if that was done then the council's consent or agreement may well be forthcoming. This of course overlooks the fact that the owners do not necessarily have any standing, there having been no development application made by them or on their behalf.
37. I am satisfied in the circumstances of this case that there is power pursuant to Pt 10 of the Land and Environment Court Rules to allow the amendment in accordance with the amended application class 1 filed on 23 July 1999. I am also satisfied that it is appropriate for the Court to exercise that power, particularly in the light of there being no evidence of any real prejudice to any person including the respondent, and also having regard to the Court being satisfied as to the amendments to be made to the development application itself, and the satisfactory compliance with the requirements for notification.
39. The formal Orders that I make are:-38. It would indeed be most unsatisfactory, in the circumstances, for the applicant to be forced into the situation where the application is not amended and it has to discontinue or for the application to be struck out by reason of the fact that there was truly no applicant, and then simply to start again in circumstances where the only real change was to formalise a correct description of the applicant who, in part, had been identified by the description given in the application as it was originally made.
2. The application class 1 be amended in accordance with the amended application class 1 filed in Court on 23 July 1999 apart from the letter "s" where it appears for the second time in the word "Investments" in the description of the applicant.1. Pursuant to s 39 of the Land and Environment Court Act the Court 1979 agrees, on behalf of the respondent council, to the amendment of the development application by deleting the reference to Duke Investments Trust Pty Ltd in s 1 and inserting in lieu thereof Propertylink Finance Pty Limited ACN 074591469 Acting As Trustee For Duke Investment Trust.
43. The exhibits may be returned.
42. I do not think it is necessary for the Court to make any other orders in the circumstances.
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