Pine Rivers Shire Council v Doolan Properties Pty Ltd

[1999] QCA 96

COURT OF APPEAL	[1999] QCA 096
McPHERSON JA THOMAS JA
Appeal No 1693 of 1999
COUNCIL OF THE SHIRE OF PINE RIVERS	Appellant (Respondent)
and
DOOLAN PROPERTIES PTY LTD	Respondent (Appellant)
BRISBANE

..DATE 24/03/99
McPHERSON JA: Having considered this application in conjunction with Mr Justice
Thomas, the order which I consider we ought to make and on which we are agreed is as
follows.

I should add that there is another point that Mr Justice Thomas wishes to raise with the parties which may involve some addition to or qualification of the order, but speaking in general terms, our order will be as follows.

Upon the provision by or on behalf of Doolan Properties Pty Ltd of security in the form of a bank guarantee or otherwise to the satisfaction of the Registrar, for repayment to the council of the sum of $152,000 or such other sum as the parties may agree on.

In the event that the appeal is successful order that the application for a stay of the judgment given on 1 February 1999 be and is hereby stayed until the determination of this appeal or until further order.

I would also order that the application for a stay be adjourned to a date to be fixed and that the costs of the application and of this hearing to date be costs in the appeal.

I would also order that there be liberty to apply.

THOMAS JA: The intention is that no stay be granted until the guarantee is supplied, and that in the event that the guarantee is supplied the Council will satisfy the present judgment.

A problem arises in relation to the condition of repayment in the event that the appeal succeeds. My intention is that the guarantee should secure repayment of such sum as may have been overpaid by the appellant according to the final judgment that results upon determination of the appeal.

Now that may be soluble by the parties adding something to the form of the order which Mr
Justice McPherson has just propounded, and subject to that qualification I agree.

McPHERSON JA: That is why, I might say, I inserted the reference to "such other sum as the parties may agree" because suggesting that you might try to find a formula to fit in there, or somewhere else which would enable you to cover the case where the appeal succeeded but not in full. I am not sure how you do it, but the ingenuity of counsel such as you two gentlemen would I am sure without any difficulty at all resolve the point.

MR HUGHES: Just one matter. At the risk of sounding obtuse, if the guarantee is provided then there's no necessity for the stay and the council will pay the money. So the order, I'd rather suspect, that Your Honour has indicated is that upon the provision of the bank guarantee the judgment would be stayed. In fact upon the provision of the bank guarantee-----

THOMAS JA: It's adjourned to a date to be fixed, I think.

McPHERSON JA: Yes, that's right. I've made a mistake there.

Upon the provision of security, the application for the stay will be adjourned to a date to be fixed. There will be no stay.

MR ANDREWS: There are in fact two matters I'd like to raise.

McPHERSON JA: Yes.

MR ANDREWS: The contemplated order requires the respondent to provide a bank guarantee.

McPHERSON JA: Yes.

MR ANDREWS: There is no undertaking yet offered by the council and I assume that it would, to pay the required amount in exchange for that guarantee rather than to leave the respondent with the obligation of trying to execute.

MR HUGHES: Yes. Your Honour, the way to cure that is for me to give an undertaking which I have instructions to do, upon the undertaking of the appellant to pay the respondent the sum of $152,000 upon receipt of the irrevocable bank guarantee referred to below, and that undertaking I can make and that would preface the-----

McPHERSON JA: All right. Well you put that in the form of an order and I or both of us will initial it. Yes?

MR ANDREWS: Would Your Honours order that the costs of this application for a stay and of the respondent's - and of the bank guarantee be costs in the appeal.

McPHERSON JA: That seems reasonable enough, Mr Hughes.

MR HUGHES: I think that's correct, Your Honour. If I lose ultimately then-----

McPHERSON JA: Whoever loses pays for the party - including that part of it.

MR HUGHES: Perhaps the order should be "Each party's costs be that party's costs in the appeal" and in the case of the respondent, the-----

McPHERSON JA: All right. Well you fix it up. You'll be paid for doing it, I won't. Let us have a draft - an order in the form of a draft which we can initial - or I can initial, at any rate. I will have a consultation with Mr Justice Thomas.

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