Optus Mobile Pty Ltd v Council of the City of Gold Coast

Optus Mobile Pty Ltd, the plaintiff, sought summary judgment and an injunction against the Council of the City of Gold Coast, the defendant, in relation to four leases of land owned by the Council at Mudgeeraba. Optus intended to construct and operate a mobile phone tower at the site. The leases were executed on 6 December 1995 and lodged with the Department of Lands for registration on 29 December 1995. Optus was granted possession and performed preliminary works on the construction of a mobile phone facility on the land in early January 1996. However, the Council later refused to cooperate in completing the registration of the leases and requested Optus to cease construction on the facility. Optus sought summary judgment for specific performance and an injunction against the Council restraining it from preventing Optus from obtaining access to the designated part of the land in question.

The court had to decide whether there was an issue or question in dispute which ought to be tried. One ground raised on behalf of the Council was that the leases were not in conformity with the Council's resolution authorising the grant of the lease to Optus. However, the court found that Optus was entitled to deal with the Council on the footing that there had been a resolution authorising the execution of the leases, in accordance with the rule in Royal British Bank v. Turquand. The court also found that there was a difficult legal question raised by the defendant as to the effect of s.405 of the Local Government Act 1993. The court was not satisfied that the issues were of sufficient simplicity to proceed to grant summary judgment. The court also considered the balance of convenience in granting an injunction in favour of Optus, and found that the factors heavily favoured Optus.

The court granted injunctions in terms of the notice of motion, subject to Optus undertaking to remove the tower and any further works erected by it, within one month of any final determination that Optus is not entitled to the lease the subject of these proceedings, and upon Optus further undertaking within that time to cause existing structures to be covered over and to regrass the site. The court also heard submissions on form of order and costs.