Hastings Point Progress Association Inc v Tweed Shire Council & Anor

[2009] HCATrans 340

[2009] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S270 of 2009

B e t w e e n -

HASTINGS POINT PROGRESS ASSOCIATION INC

Applicant

and

TWEED SHIRE COUNCIL

First Respondent

AEKLIG PTY LTD

Second Respondent

Application for expedition

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 14 DECEMBER 2009, AT 9.37 AM

Copyright in the High Court of Australia

MR P.H. GREENWOOD, SC:   May it please the Court, I appear for the applicant.  (instructed by O’Reilly Sever & Co)

MR P.J. McEWEN, SC:   May it please your Honour, I appear with MR S.M. BERVELING for the respondent to submit to the order of the Court.  (instructed by Stacks the Law Firm)

HIS HONOUR:   First or second respondent?

MR McEWEN:   Second respondent, sorry.

HIS HONOUR:   The first respondent is the Council, I take it?

MR McEWEN:   Yes.

HIS HONOUR:   It plays no active part.

MR McEWEN:   No.

HIS HONOUR:   Yes, Mr Greenwood.

MR GREENWOOD:   Your Honour, we read the affidavit of John O’Reilly sworn 16 November 2009.

HIS HONOUR:   There have been developments since, though, have there not?  There is a judgment on 10 December on costs.

MR GREENWOOD:   Yes.

HIS HONOUR:   What is the current situation then?

MR GREENWOOD:   The current situation is that the appeal remains except in relation of costs.  So the application moves back to the Court of Appeal to correct the order that was being made dismissing the appeal as being dismissed.

HIS HONOUR:   Yes, I saw that, but there are further submissions on costs?

MR GREENWOOD:   Yes.

HIS HONOUR:   You only appeal here from final orders, so what orders have been taken out?

MR GREENWOOD:   The order to be taken out is the dismissal order, the summons.

HIS HONOUR:   The dismissal of the appeal?

MR GREENWOOD:   Sorry, dismissal of the appeal.

HIS HONOUR:   If you are unsuccessful in your special costs order application, there may be a further dimension in this Court as well, may there not?

MR GREENWOOD:   It is possible, but I cannot put it any higher than that.  If your Honour was thinking that that would prevent expedition, then we would see instructions about appealing on that aspect, because the concern that we have is that the units are going to be sold to third parties and that is going to interfere with the prospects of them getting any order in due course, if the appeal is successful.

HIS HONOUR:   Yes, so what is your client’s attitude, Mr McEwen?

MR McEWEN:   We would make a submitting appearance in relation to this application, then to be expedited, your Honour.  That is correct, your Honour.  I should tell your Honour that I am instructed, something like 30 to 40 per cent of the first stage of the development has in fact been contracted to purchasers.  It is a retirement complex with about 120 all up.

HIS HONOUR:   Yes, I see that.

MR McEWEN:   I think 60 or 70 are almost complete.  They will be finished in February or so.

HIS HONOUR:   What would your final remedy be, Mr Greenwood?

MR GREENWOOD:   Ultimately, an application for demolition of the building or at least some modification of it to reduce its height.

HIS HONOUR:   The draft notice of appeal suffers from the defect that it is not directed to particular orders.  You have to have a judgment, decree, order or sentence.  You have to take up a final order before you put on a special leave application.  These things are pretty basic.  I have no difficulty with expediting it, but it has to be in proper order.

MR GREENWOOD:   We will attend to that immediately, your Honour.

HIS HONOUR:   You have got to think about whether you want an appeal against the order dismissing leaving any question of costs out of the application of this Court.  That is what you have to think about.  Just sit down for a minute, Mr Greenwood.

This is what I propose to say.  One, subject to the applicant as soon as practicable taking out the order of the New South Wales Court of Appeal made on 11 September 2009, insofar as it dismissed the appeal of that court, order the application for special leave to be expedited and if the rules of this Court otherwise be complied with, direct that the application be entered in the special leave list for 12 February 2010 in Sydney.  Costs of the summons filed 17 November 2009 be costs of the special leave application.

MR GREENWOOD:   If the Court pleases.

HIS HONOUR:   Anything else?  We will now adjourn.

AT 9.48 AM THE MATTER WAS ADJOURNED