Kadhem v Trinity Green Development Pty Ltd - [2014] QPEC 36

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Kadhem v Trinity Green Development Pty Ltd & Anor [2014] QPEC 36

PARTIES:

AHMED KADHEM

(applicant)

v

BRISBANE CITY COUNCIL

(respondent)

TRINITY GREEN DEVELOPMENT PTY LTD
ACN 142 927 277
(co-respondent)

FILE NO/S:

976/14

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an application

HEARING DATE:

24 June 2014

DELIVERED ON:

3 July 2014

DELIVERED AT:

Brisbane

JUDGE:

RS Jones DCJ

ORDER:

The application is dismissed.

The applicant is to pay the co-respondent’s cost of the application.

Such costs are not to exceed $750.

CATCHWORDS:

APPLICATION – LEAVE TO APPEAL – whether time for filing notice of appeal expired – whether if time for filing notice of appeal had expired leave ought be granted – whether reasonable explanation for a delay – whether applicant had reasonable prospects of success in the substantive appeal if leave granted – whether fairness dictated that leave be granted – COSTS.

Sustainable Planning Act 2009

Beil v Mansell (2006) QCA 173

APPEARANCES:

Mr A Kadhem in person

Ms K R Johnston, solicitor, Brisbane City Legal Practice for the respondent

Mr B Webster, solicitor, of Lillas and Loel Lawyers for the co-respondent.

This proceeding was primarily concerned with an application by Mr Kadhem for leave to appeal where the time prescribed for the filing of a notice of appeal under the Sustainable Planning Act 2009 (SPA) had expired. I say “primarily concerned” because there was also what was described as a strikeout application, the purpose of which was to strikeout the appeal in the event that leave were granted. In my view that application was misconceived. In any event, when the matter was argued before me on 24 June 2014 no mention was made of the strikeout application and all the parties focused on the application for leave. For the reasons set out below the orders of the court are:

1. The application is dismissed.

2. The applicant is to pay the co-respondent’s cost of the application.

3. Such costs are not to exceed $750.

Background

Mr Kadhem (the applicant) appeared in person and, as I understand it, was also intending to appear on behalf of a number of other residents of the suburb of Drewvale.

On 20 March 2014 the applicant filed a document purporting to be a notice of appeal in which it was stated that the grounds of appeal were: “we are requesting an extension to the appeal lodgement deadline to have more time to organise the appeal properly”. Following a somewhat complex process including Trinity Green Developments Pty Ltd (the co-respondent) bringing an application to strikeout the applicant’s appeal, it became sufficiently clear that the most appropriate method of dealing with the matter was to list it for hearing on the basis of it being an application to deal with the non-compliance issue.

What provoked the applicant to act was a development proposal advanced by the co-respondent and approved by the Brisbane City Council (the respondent). In the exhibits attached to the affidavit of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kadhem v Trinity Green Development Pty Ltd

Details

AGLC: Kadhem v Trinity Green Development Pty Ltd [2014] QPEC 36
Case: [2014] QPEC 36
Decision Date: 3 July 2014

CaseChat Overview and Summary

Kadhem sought leave to appeal from a decision of the Supreme Court of Queensland, which had dismissed an action for damages against Trinity Green Development Pty Ltd. The appeal was based on the argument that the time for filing the notice of appeal had expired, but leave to appeal should still be granted due to various factors, including a reasonable explanation for the delay and the prospects of success in the substantive appeal. The court also considered whether fairness dictated that leave should be granted, and the matter of costs.

The central issue before the court was whether the applicant had provided a reasonable explanation for the delay in filing the notice of appeal. Additionally, the court had to determine if the applicant had reasonable prospects of success on the substantive appeal if leave were granted. The court also considered whether fairness dictated that leave should be granted, and the matter of costs.

In assessing the application, the court examined the applicant's explanation for the delay in filing the notice of appeal. The court found that the explanation provided was not reasonable, as it did not account for the significant delay in filing the notice. The court also found that the applicant did not have reasonable prospects of success in the substantive appeal. Furthermore, the court determined that fairness did not dictate that leave should be granted. Consequently, the court dismissed the application for leave to appeal and ordered the applicant to pay the co-respondent's costs of the application, not to exceed $750.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant is to pay the co-respondent’s cost of the application.

3. Such costs are not to exceed $750.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kadhem v Trinity Green Development Pty Ltd & Anor [2014] QPEC 36
PARTIES:	AHMED KADHEM (applicant) v BRISBANE CITY COUNCIL (respondent) TRINITY GREEN DEVELOPMENT PTY LTD ACN 142 927 277 (co-respondent)
FILE NO/S:	976/14
DIVISION:	Planning and Environment
PROCEEDING:	Hearing of an application
HEARING DATE:	24 June 2014
DELIVERED ON:	3 July 2014
DELIVERED AT:	Brisbane
JUDGE:	RS Jones DCJ
ORDER:	The application is dismissed. The applicant is to pay the co-respondent’s cost of the application. Such costs are not to exceed $750.
CATCHWORDS:	APPLICATION – LEAVE TO APPEAL – whether time for filing notice of appeal expired – whether if time for filing notice of appeal had expired leave ought be granted – whether reasonable explanation for a delay – whether applicant had reasonable prospects of success in the substantive appeal if leave granted – whether fairness dictated that leave be granted – COSTS. Sustainable Planning Act 2009 Beil v Mansell (2006) QCA 173
APPEARANCES:	Mr A Kadhem in person Ms K R Johnston, solicitor, Brisbane City Legal Practice for the respondent Mr B Webster, solicitor, of Lillas and Loel Lawyers for the co-respondent.