Fairview Farming Co P/L v Cairns City Council

[1997] QSC 39

IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS DISTRICT REGISTRY

No. 117 of 1996
[Fairview Farming Co P/L v. Cairns City Council]

BETWEEN:

FAIRVIEW FARMING CO PTY LTD
  (ACN 009 656 660)

Plaintiff
AND:

CAIRNS CITY COUNCIL

Defendant

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered :     14/03/1997

CATCHWORDS:     LOCAL GOVERNMENT - restitution - payment under mistake of law - condition of subdivisional approval - whether jurisdiction to decide claim.

Counsel:Mr D.B. Fraser Q.C. for the plaintiff (respondent)

Ms M.A. Wilson Q.C., with her Mr A.R. Philp for the defendant (applicant)

Solicitors   Dale Treanor for the plaintiff (respondent)
  McDonnells for the defendant (applicant)

Hearing Date:   8 January 1997

IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS DISTRICT REGISTRY

No. 117 of 1996
[Fairview Farming Co P/L v. Cairns City Council]

BETWEEN:

FAIRVIEW FARMING CO PTY LTD
  (ACN 009 656 660)

Plaintiff
AND:

CAIRNS CITY COUNCIL

Defendant

REASONS FOR JUDGMENT - BYRNE J.

Judgment delivered :     14/03/1997

As in Kamerunga Villa Pty Ltd v. Cairns City Council, No. 89 of 1995 Cairns Registry, in which judgment is being delivered today, the plaintiff seeks to recover moneys said to have been overpaid under mistake of law pursuant to a condition attaching to a subdivisional approval.
           To the extent that this case may involve consideration of the Local Government (Planning and Environment) Act 1990, it is common ground that that Act contains provisions which are not materially dissimilar in effect from those in the legislation considered in Kamerunga.  In substance, the material facts and other considerations are also similar.
           Accordingly, for the reasons given in Kamerunga, this application to dismiss the action on the footing that the Court lacks jurisdiction to entertain it is dismissed.