Gazcorp Pty Ltd v Westfield Management Pty Ltd (No 2)

[2004] NSWCA 130

CITATION:	Gazcorp Pty Ltd v Westfield Management Pty Ltd & Anor (No 2) [2004] NSWCA 130
HEARING DATE(S):	22 April 2004
JUDGMENT DATE:	22 April 2004
JUDGMENT OF:	Giles JA
DECISION:	(1) Extend the stay of operation of order (2) in order 3 made on 31 March 2004 until 30 June 2004. (2) Order that the opponents pay the claimant's costs of the notice of motion.
CATCHWORDS:	Injunction restraining unauthorised use of property - change of circumstances - whether stay to allow consent to use to be obtained - no question of principle. ND
PARTIES :	Gazcorp Pty Ltd - Claimant Westfield Management Pty Ltd - First Opponent Kent Street Pty Ltd - Second Opponent
FILE NUMBER(S):	CA 40090/04
COUNSEL:	N Hemmings QC - Claimant I Jackman SC & R Lancaster - Opponents
SOLICITORS:	Allans Arthur Robinson - Claimant Mallesons Stephen Jaques - Opponents

LOWER COURTJURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 40699/03
LOWER COURT JUDICIAL OFFICER :	Lloyd J

CA 40090/04
LEC 40699/03

GILES JA

Thursday 22 April 2004

GAZCORP PTY LTD v WESTFIELD MANAGEMENT PTY LTD

Judgment

1 HIS HONOUR: This is an application consequential upon the decision of this Court on 31 March 2004. The order having the effect that Gazcorp had to cease using the property as a warehouse clearance outlet was stayed for twenty-eight days from that date. Gazcorp applies for an extension of the stay until 30 June 2004, on the ground that changed circumstances since 31 March 2004 call for an exercise of discretion to that end pursuant to Pt 42 r 12 of the Rules or the more general Pt 44 r 5. Subject to what I next say, Westfield accepts that there is power to extend the stay, and that I can exercise the power pursuant to s 46 of the Supreme Court Act 1970.

2 Gazcorp’s application was filed on 19 April 2004. Westfield submits that Gazcorp has not complied with, and must first overcome, the fixing by Handley JA of a period of seven days within which it had to file its application. On an application for a stay pending an appeal his Honour ordered a stay until the determination of the appeal and the twenty-eight days thereafter, and -

“In the event that the appeal is dismissed, I peremptorily fix a period of seven days thereafter as the period within which any application for a further extension for the stay of proceedings, beyond the twenty-eight days which I have ordered, is to be filed and served”.

3 It may be that Handley JA had in mind an extension of the stay pending an application for special leave to appeal to the High Court, not an extension of the stay on the ground of changed circumstances. It does not matter. The admittedly technical submission meets a technical answer. The appeal was not dismissed. It was allowed to the extent of reformulation of the substantive orders made in the Land and Environment Court, with a stay of the order made on appeal conformably with the period of twenty-eight days. It is preferable to go to the merits of the application.

4 The issue is postponement of the order enjoining the use of the property as a warehouse clearance outlet so that Gazcorp can obtain appropriate development consent and bring its illegal use to an end.

5 The position when the appeal was decided was that the Council had prepared and exhibited an amendment to the LEP and a draft report recommending the making of the amendment was to be considered by the Council. The amendment would permit the grant of consent to use of the property as a warehouse clearance outlet. The council had consulted with government departments, none of which had raised any objection. The evidence describing this position was not in terms of great specificity, and in the reasons of 31 March 2004 I said, with the concurrence of Handley JA and Pearlman AJA -

“29 The affidavit was provided to Westfield only on the day of the hearing. Mr Craig QC said that, had it been received earlier, he would have made further investigations in order to explore and test it, but that he “want[ed] the matter resolved”. He submitted that the affidavit was in such general terms that its weight was difficult to assess, for example the consultation with government departments was unknown, that DIPNR had not raised an objection said little as to the merits of the amendment and the pros and cons in the draft report bearing upon its acceptance by Council were unknown. He submitted that the affidavit did not take matters much further and would not have materially altered the judge’s conclusion.
30 I agree with these submissions. The affidavit brought only a degree of certainty to little of the uncertainty in the prospects of amendment of the LEP and, just as important, the grant thereafter of suitable development consent. I do not think that, if received, it would impugn the judge’s exercise of his discretion or on a fresh exercise of discretion lead to a different conclusion. In my opinion, the additional evidence should not be received, but if it were received it would not bring success in the appeal.”

6 The evidence now before me takes matters further. The Council has resolved to amend the LEP. The amendments provide for a defined use as an Outlet Centre and for the inclusion of the property in a schedule as a property for which the Council may grant development consent for that use. The amendments have gone to the Department, which is in the course of preparing a s 69 report for the Minister’s consideration and “is working towards a timeframe which would see a s 69 report furnished for the Minister’s consideration early in the week beginning 27 April 2004”. Gazcorp has made an anticipatory development application, and the Council has on a preliminary assessment satisfied itself that the use would fall within the amendments to the LEP. The Council proposes, subject to a favourable decision from the Minister, to exhibit the development application forthwith. Its officer says -

“As requested, all accompanying documents and submissions received in relation to DA 2919/02, where relevant, will be taken into account when assessing the latest development application. It is anticipated that Council will be in a position to determine the application, taking into account relevant legislation and Council adopted policies, immediately after exhibition and subject to the Gazettal of the Liverpool Local Environmental Plan 1997 (Amendment 92).”

7 As Gazcorp acknowledges, this does not bespeak certainty in its obtaining appropriate development consent. It is not known whether the Minister’s decision will be favourable. It is not known what objections might be received when the development application is exhibited, what the Council’s determination might be or whether opposition will prolong the making of the Council’s determination. Gazcorp submitted, in effect, that it could do no more, and it led evidence that compliance with the order made on 31 March 2004 would work great hardship on numerous of its tenants now conducting business at the property and upon their employees. The tenants would have to close their businesses, and many people would lose their jobs. Gazcorp submitted that there was sufficient prospect of obtaining an appropriate development consent that, rather than have this occur, there should be the extension of the stay.

8 I do not think that Westfield denied the hardship. It submitted, however, that the present position was really little different from that at the time when the appeal was decided, and that the Court’s then view that the uncertainty and the prospects of amendment of the LEP and the grant thereafter of suitable development consent was equally a view to which I should now come.

9 I have not found this decision easy, and I consider that the matter is fairly well balanced. I remain alive to the uncertainty, and to the need to enforce compliance with the planning laws. But there is now evident a considerable will to achieve development consent as a matter of expedition. On the evidence now before me, I think that there is a real prospect, although without any guarantee, that Gazcorp will within a reasonable time obtain an appropriate development consent. I think it proper to allow time for that to occur without there being what in that event would be unwarranted hardship upon many persons beyond the commercial interests of Gazcorp and Westfield. An extension to 30 June 2004 is, I think, not an excessive estimate of the time required for certainty to emerge or to be seen to be remote.

10 I therefore will grant the extension sought by Gazcorp.

HIS HONOUR: What about costs, gentlemen?

JACKMAN: I’d make an application for costs in any event even though I recognise the outcome as adverse to my client. The appellant was seeking an indulgence of the Court in order to continue what is at present unlawful trading. We were entitled to resist the appellant seeking that further period in which to trade unlawfully. Whether or not matters were ultimately rectified we ought to be entitled to our costs of the present application.

HEMMINGS: We oppose that. We ask for costs. It’s common ground that the application we made was within the rule and it was a question of fact as to whether or not your Honour should exercise the discretion vested by the rules. We’ve succeeded in that, it was opposed and we should get our costs.

HIS HONOUR: I can’t see Mr Jackman why the ordinary costs following the event really doesn’t apply. In a sense Mr Hemmings was asking for an indulgence but you chose to oppose his request. Nothing more to be said?

JACKMAN: I have said what I can and it’s in my submission not an unreasonable price for the appellant to pay for what is continued unlawful trading, that they pay the costs of the application for a further stay.

11 HIS HONOUR: Gazcorp and Westfield have made opposing submissions as to the costs of the application. Westfield chose to oppose the application and was unsuccessful in doing so. However, it submits that Gazcorp is in substance seeking a boon from the Court by way of relief from continuance of illegal use of the property. Notwithstanding that consideration, it seems to me that the ordinary rule that costs follow the event should be adopted. Accordingly, an order will be made that Westfield pay Gazcorp’s costs.

12 The formal orders are -

1. I extend the stay of operation of order (2) in order 3 made on 31 March 2004 until 30 June 2004.

2. I order that the opponent pay the claimant’s cost of the notice of motion.

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Last Modified: 04/30/2004