Neo Lido Pty Ltd v. Brisbane City Council

[2009] QPEC 13

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Neo Lido Pty Ltd v Brisbane City Council [2009] QPEC 13

PARTIES:

NEO LIDO PTY LTD

(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

v

TANIA SIMPSON & PAUL SHERWIN

(Co-Respondent)

FILE NO/S:

4754 of 2004

DIVISION:

Appellate

PROCEEDING:

Registrar’s referral of inactive developer appeal to the Court

ORIGINATING COURT:

DELIVERED ON:

12 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

04 March 2009

JUDGE:

Robin QC DCJ

ORDER:

Appeal struck out

CATCHWORDS:

Inactive developer appeal against deemed refusal of its development application struck out for want of prosecution

COUNSEL:

No counsel

SOLICITORS:

Ms K Johnston of Brisbane City Legal Practice for the Respondent

1. At the court’s instance, this appeal (instituted by a developer applicant against a “deemed refusal”) was mentioned on 4 March 2009 so that the appropriateness of its remaining inactive, cluttering the court’s lists, could be looked into.  The only appearance was that of Ms Johnston for the respondent Council.  The Registrar has made contact with the appellant company’s original solicitors on the record, who advise inability to contact the client.  Another firm, Nyst Lawyers advised him by letter dated 6 February 2009 that the appellant, for whom they acted (but not in this appeal) “was placed into liquidation some time ago”.  Earlier there had been contact with Korda Mentha the well-known firm regarding their potential interest in the appeal:  there is none, apparently.

1. Ms Johnston informed the court from the bar table that the site the subject of the appellant’s proposed development is no longer owned by it and that a different “mixed use” development has been approved and indeed constructed there.  She offered to provide an affidavit to that effect.  A subsequent email communication confirms the change in ownership and approval, but reports that construction has not yet occurred.

1. The List Manager attending the court advised that a winding up application against the appellant had been filed in the Supreme Court in 2005, raising the possibility that the appellant had been ordered to be wound up and had a liquidator appointed.  He undertook to make enquiries, which have subsequently revealed that winding up application (based on non-compliance with a statutory demand for some $241,751.79) was dismissed by consent, with the company ordered to pay the applicant’s costs of $2,000 as agreed.  I’ve marked Exhibit 1 copies of documents 1 to 5 from the Supreme Court file (BS4770/05) of which 4 is the consent to judgment or order of Registrar signed by the parties’ solicitors on 15 July 2005 and 5 is the Registrar’s order made three days later.

1. The liquidation of the appellant as a foundation for the striking out of this appeal may not have quite disappeared.  The order made on the day in terms struck out the appeal for want of prosecution.  A similar order was made in Lali Investments v Burnett Shire Council [2006] QPELR 642. Here, as there, there was no application by the appellant for leave to proceed after long delay as required by r 389 of the Uniform Civil Procedure Rules.  Senior Judge Skoien at 644 cited Court of Appeal authority to the effect that if a proceeding cannot go on without leave and no application for leave is made it should be struck out.  The last “step” in this appeal was the filing on 6 October 2005 of an application by Tania Simpson and Paul Sherwin seeking their reinstatement as co-respondents (on the ground that the appellant had applied to have them to removed without “formal notification”); that application was struck out by Judge Wilson on 14 October 2005 when the applicants failed to appear.  Ms Johnston was there, likewise, Ms King of Hemming & Hart, who lodged the appeal.  That is somewhat at odds with my having granted the firm leave to withdraw on 19 August 2005 and the appellant’s notice filed the same day that it was now acting in person; Ms King’s participation may be seen as a courtesy to the court and a desire to set the record straight in respect of dealings with the former co-respondents.  Although the appeal had earlier given directions calculated to get the appeal ready for hearing and it had been placed on a callover list, the conclusion is unavoidable that the appellant has no interest in pursuing it.  On the basis that Ms Johnston’s information is correct, pursuing it would be a futility.

1. Although the appellant may not have been wound up, there was placed before me as Exhibit 1 on 19 August 2005 a copy of an order of Philippides J in BS4975 of 2005 whose title shows that receivers and managers had been appointed to the appellant and a related company.

1. Against the possibility that the court was proceeding too peremptorily on 4 March 2009, a mention was directed for 12 March 2009, should any reconsideration be necessary because the court had proceeded on some false premise.  Whether or not Ms Johnston’s promised affidavit eventuates, it is clear that the order should stand.