Grand Hotel (SA) Pty Ltd v Holdfast Shores Hotel Services Pty Ltd No. Scciv-01-1731

[2002] SASC 51

GRAND HOTEL (SA) PTY LTD & ANOR  v  HOLDFAST SHORES HOTEL SERVICES PTY LTD
[2002] SASC 51

Miscellaneous Appeals (ex tempore)

1. DOYLE CJ:            Having heard the helpful submissions, I refuse leave to appeal.

2. The Act permits the court to approve a variation of plans.  Those words are capable of embracing a wide range of situations.  In my opinion it is not arguable that that is confined to a minor variation.  Once one moves from that position, the only potential limit I can see is that the variation cannot be one which would fundamentally alter, or perhaps one could say radically change, the nature of the proposal.

3. The Judge has made a finding that the new plans are fundamentally the same and in my opinion, bearing in mind that to some degree this must be a matter within his expertise, it is not appropriate to grant leave to enable the Full Court to revisit the quality of the change.  And in view of the Judge’s finding, the question of law, which I can see there, namely, could a fundamental change be approved as a variation, does not arise.

4. In other words, the appeal will go nowhere unless the Full Court first of all overturns his finding that the plans are fundamentally the same.  And in my opinion it is not appropriate to grant leave on the basis that the Full Court would have to review that finding of fact.

5. There was another matter raised before the Judge and that is the ownership structure.  The Judge took the view that that was a matter that could be considered, and on which the objectors could be heard, at a later stage of the process under s 59.  I record now, so there is no uncertainty about it, that Mr Firth does not oppose that view.  On that basis it seems to me the Judge cannot be said to have erred in saying that can be left to a later stage, however inconvenient that might be.  Accordingly I refuse leave to appeal.