Re Carey
[2006] WASCA 18
•13 JANUARY 2006
RE CAREY; EX PARTE EXCLUDE HOLDINGS PTY LTD & ORS [2006] WASCA 18
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 18 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CIV:2197/2005 | 13 JANUARY 2006 | |
| Coram: | ROBERTS-SMITH JA | 13/01/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for a stay by way of chamber summons dismissed Hearing of the return of the order nisi to be expedited | ||
| B | |||
| PDF Version |
| Parties: | EXCLUDE HOLDINGS PTY LTD (ACN 009 463 165) DENNIS GEORGE WARWICK JOSEPHINE RANDAZZO BERNARD LANDRO KEVIN JOHN CLAFFEY MARGARET JOAN BAUHOFER BRIAN WILLIAM PACKER PAULINE JEAN PACKER JAMES NORMAN COLLIS NATALIE JANE COLLIS RICHARD NORMAN COLLIS SUZANNE COLLIS ABENRA PTY LTD (ACN 009 258 468) TANVIER PTY LTD (ACN 009 178 214) MEMBER TIM CAREY OF THE STATE ADMINISTRATIVE TRIBUNAL GEOFFREY JOEL MOSS |
Catchwords: | Administrative law Prerogative writ Order nisi for certiorari Review of decision of member of State Administrative Tribunal Strata development Application of Town Planning Scheme by reference Application for stay of orders pending return of order nisi Application for expedited hearing |
Legislation: | Rules of the Supreme Court 1971 (WA), O 56 |
Case References: | Aspermont v Lechmere Financial Corporation (2002) 27 WAR 1 Commonwealth v McCormack (1984) 155 CLR 273 Stampalia v Stewards of West Australian Trotting Association [1999] WASC 7 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Craig v South Australia (1995) 184 CLR 163 Edwards v Guidice (1999) 94 FCR 561 Greek Orthodox Community of South Australia Inc v Ermogenous (2000) 77 SASR 523 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RE CAREY; EX PARTE EXCLUDE HOLDINGS PTY LTD & ORS [2006] WASCA 18 CORAM : ROBERTS-SMITH JA HEARD : 13 JANUARY 2006 DELIVERED : 13 JANUARY 2006 FILE NO/S : CIV 2197 of 2005 MATTER : Application for a Writ of Certiorari against MEMBER TIM CAREY of the STATE ADMINISTRATIVE TRIBUNAL EX PARTE
EXCLUDE HOLDINGS PTY LTD (ACN 009 463 165)
DENNIS GEORGE WARWICK
JOSEPHINE RANDAZZO
BERNARD LANDRO
KEVIN JOHN CLAFFEY
MARGARET JOAN BAUHOFER
BRIAN WILLIAM PACKER
PAULINE JEAN PACKER
JAMES NORMAN COLLIS
NATALIE JANE COLLIS
RICHARD NORMAN COLLIS
SUZANNE COLLIS
ABENRA PTY LTD (ACN 009 258 468)
TANVIER PTY LTD (ACN 009 178 214)
Applicants
AND
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- MEMBER TIM CAREY OF THE STATE ADMINISTRATIVE TRIBUNAL
First Respondent
GEOFFREY JOEL MOSS
Second Respondent
Catchwords:
Administrative law - Prerogative writ - Order nisi for certiorari - Review of decision of member of State Administrative Tribunal - Strata development - Application of Town Planning Scheme by reference - Application for stay of orders pending return of order nisi - Application for expedited hearing
Legislation:
Rules of the Supreme Court 1971 (WA), O 56
Result:
Application for a stay by way of chamber summons dismissed
Hearing of the return of the order nisi to be expedited
Category: B
Representation:
Counsel:
Applicants : Ms M A Kershaw
First Respondent : No appearance
Second Respondent : Ms R J Lee
Solicitors:
Applicants : Anderson Kershaw
First Respondent : No appearance
Second Respondent : Beere & Meyer
(Page 3)
Case(s) referred to in judgment(s):
Aspermont v Lechmere Financial Corporation (2002) 27 WAR 1
Commonwealth v McCormack (1984) 155 CLR 273
Stampalia v Stewards of West Australian Trotting Association [1999] WASC 7
Case(s) also cited:
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Craig v South Australia (1995) 184 CLR 163
Edwards v Guidice (1999) 94 FCR 561
Greek Orthodox Community of South Australia Inc v Ermogenous (2000) 77 SASR 523
(Page 4)
1 ROBERTS-SMITH JA: This is an application by way of Chamber summons made pursuant to O 56 r 5 of the Rules of the Supreme Court 1971 (WA) that orders made by Mr Tim Carey, member of the State Administrative Tribunal, on 20 July 2005 be stayed until the hearing of the order nisi for writ of certiorari before the Full Court of the Supreme Court of Western Australia or until further order. There is also an application for expedition of the hearing of the return of the order nisi.
2 The chamber summons application evinces some procedural confusion, to which I shall return. That application was supported by the affidavit of Michele Ann Kershaw, solicitor for the applicants, to which was attached a copy of the order and reasons for decision of the State Administrative Tribunal made on 20 July 2005.
3 The summary of the Tribunal's decision states that the applicant before the Tribunal, Geoffrey Joel Moss, is the owner of a lot in a strata development in which a number of other owners have used their lots for letting to short-term tenants. By-laws of the strata company prohibit use of lots in a way that contravenes local or other government requirements governing usage of land or causes a nuisance or interference with the use and enjoyment of others.
4 The applicant claimed that the use by a number of owners of the lots breached the by-laws and sought orders restraining such breaches. The respondents (who are the present applicants), contended that the by-laws did not incorporate breaches of the town planning requirements but that if they did the respondents had not been shown to have breached them and that the Tribunal should not, in any event, engage in the de facto enforcement of planning requirements.
5 The Tribunal found that the planning requirements had been incorporated into the by-laws of the strata company and that the respondents intended their lots to be used in a way that breached those requirements. Therefore, the applicant was entitled to orders in substantially the form of those sought, but expressed so as to take account of the planning scheme and the use of lots giving rise to the applicant's complaints.
6 The orders in fact made by the Tribunal were:
"(1) Pursuant to s 81(3) of the Strata Titles Act 1985 (WA), the proprietors of units 1, 2, 3, 4, 6, 9, 10, 11, 12, 13 and 15 of Bijou Marina Village refrain from advertising that the units are available for lease and refrain from entering
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- into lease agreements for the temporary accommodation of tourists, visitors and travellers.
- (2) Pursuant to s 81(3) of the Strata Titles Act 1985 (WA), the proprietor of units 1, 2, 3, 4, 6, 9, 10, 11, 12, 13 and 15 of Bijou Marina Village be required to terminate or cancel any current lease agreements for the temporary accommodation of tourists, visitors and travellers."
7 Ms Kershaw, who appears for the applicants today, submits that there is some confusion or uncertainty as to the meaning of those orders, specifically as to what constitutes temporary accommodation, amongst other things. That, however, is not something which appears to call for my consideration on these applications.
8 A far more extensive 170-page supplementary affidavit of Ms Kershaw was filed on 24 October 2005 attaching the Shire of Busselton Town Planning Scheme No 20.
9 On 26 October 2005 Master Sanderson made an order in the terms sought in the applicants' notice of originating motion. The order should not have been sought and nor should it have been made in terms requiring the respondent to show cause before the Full Court. The Court of Appeal was established by the Acts Amendment (Court of Appeal) Act 2004 (WA) ("the Amendment Act") which amended inter alia the Supreme Court Act 1935 (WA). Generally, references to "Full Court" were changed to "Court of Appeal" (see s 27 of the Amendment Act).
10 Similar and other changes were made to the Rules of the Supreme Court. Order 56 r 2 was amended by the Supreme Court Amendment Rules 2005 (WA) published in the "Government Gazette" of 29 April 2005 at p 1791 and coming into operation on 2 May 2005, to provide that in r 2:
"When application to show cause is made to a Judge in chambers or otherwise he may, if he thinks fit, direct that the application be made by a notice of motion to a Judge sitting in court or to the Court of Appeal, and may adjourn the application so that notice of the application may be given."
11 Order 56 r 3 was likewise amended so as to read:
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- "An order to show cause shall be to show cause before the Court in Court or chambers or before the Court of Appeal as the Judge making the order shall think fit."
12 The Master, therefore, had the option of making the order nisi returnable before a Judge of the general division, either in court or in Chambers, or before the Court of Appeal.
13 Given the apparent urgency of the matter, the imminence of the Christmas period and the issues involved, it would have been preferable for the order to have sought return of the order nisi before a single Judge of the general division of the Supreme Court. Had that been done, the substantive application might well already have been dealt with.
14 Furthermore, the stay application could have been dealt with by a single Judge of the general division. No application for a stay order was made in the notice of originating motion, although it could have been, and that is the course which is contemplated in O 56 r 5(2).
15 On 16 November 2005 Master Sanderson, sitting as a Commissioner of the Supreme Court, adjourned the stay application to 30 November. On that latter date he adjourned it to 15 December for hearing. The respondent filed a notice of intention to abide by the Court's decision on 14 November 2005. On 5 December 2005 the applicant filed an application seeking an order for expedition of the hearing of the order nisi. Various affidavits were filed, but I shall mention those later.
16 The hearing on 15 December was listed before Master Newnes. He took the view that, as the order nisi had been made and was returnable before the Full Court, it had to be returnable before the Court of Appeal and therefore any other proceedings in relation to it could only be dealt with by a Judge of Appeal. Accordingly, on 14 December 2005 he vacated the hearing listed for the following day and referred the file to the Court of Appeal office for urgent attention. It was referred to Pullin JA, but as he had a conflict in the matter it was then referred to me.
17 On 21 December 2005 the Registrar of the Court of Appeal made an order that Pt 5 of the Supreme Court (Court of Appeal) Rules 2005 apply in relation to the application for certiorari and that the applicants file and serve a document in the format of an appellant's case under r 32 of the Rules by 11 January 2006. Although the Court was prepared to list the applications for stay and for expedition prior to Christmas, that was not by then possible. The application was accordingly listed to be heard today.
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18 On 13 December 2005 Mr Moss filed a notice of intention to be heard and on 28 December 2005 the Registrar ordered that the applicants' documents be served upon him. Mr Moss, today represented by counsel Ms Lee, formally applied to be joined as a party to these proceedings. With the applicants consenting, I made that order.
19 The applicants' case was filed on 11 January 2006. Further affidavits which bear upon the present applications are from Kevin John Claffey sworn and filed 3 November 2005, Colin Kingsley Smout sworn 25 November 2005 and filed 5 December 2005, and another affidavit from Mr Smout also sworn 25 November 2005 and filed 5 December 2005 (that affidavit essentially being exactly repetitive of his first affidavit). Those are affidavits in support of the applications.
20 Affidavits in opposition to the applications have been filed from Diana Yvonne Bonjolo sworn 6 December 2005 and filed 8 December 2005, Phillip William Holmes sworn 6 December 2005 and filed 8 December 2005, Alan Ray MacGregor sworn 9 December and filed 12 December 2005 and an affidavit from Mr Moss sworn on 10 January 2006 and filed the following day.
21 The gravamen of the case is the applicants' desire to rent out their units for short stay accommodation. The Tribunal found, at [31] of the reasons, that the evidence demonstrated a purpose on the part of all of the respondents to use their lots for commercial gain, by renting them out, generally, to as large an extent as possible. Those owners who were party to a management agreement with an agent authorised the agent to act as booking agent and to rent their lots "for the purpose of short stay accommodation". Although owners have a right of occupancy from time to time, that right is provisional on there being no previous booking by the agent for the desired time. The Tribunal further found that in relation to those lots whose owners had not signed management agreements a number of them are nonetheless managed by the agent. Only one lot, that being lot 9, has not been managed at all by the agent. Its owners, however, admit that their lot was used for commercial short-term rentals for 27 nights between August 2004 to June 2005.
22 It is apparent from the evidence before the Tribunal that there is a "bunching" of frequency of tenant occupancy between December and March. From the evidence before the Tribunal, in the form of a schedule covering the period May 2003 to January 2006, it was apparent that readings of between 10 and 25 rented days were typical, with much lower or non-existent tenancies for the remaining months.
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23 In his affidavit filed 3 November 2005, Mr Claffey deposes that he is an accountant and one of the applicants, being one of the registered proprietors of lot 9, together with his wife. He deposes that he has made inquiries of the other proprietors of the lots, who are also the applicants, to ascertain the current situation in relation to the leasing of the units in the development. He states that he is informed by the owners of unit 3 that they have leased that unit for a period of five months, to terminate in December 2005, and that they can then use the unit over the Christmas break for their holiday purposes.
24 He says he is informed by Mr Colin Smout, a director of the owners of unit 13, that they have leased that unit for a period of five months, also terminating in December, and can then use that unit over the Christmas break for their own holiday purposes. He goes on to say that he is informed by Richard Norman Collis, one of the owners of unit 12, that they have leased that unit for a period of six months, terminating in April 2006.
25 He says he is informed by all the applicants that none of them has entered into any lease for short periods since interim orders were made by the Tribunal on 11 March 2005, but he is informed the owners of units 3 and 13 have entered into longer term leases since the orders made on 20 July 2005 because the units are not producing income to cover the mortgages on the units.
26 He goes on to depose that he is informed by the applicants that the orders made by the Tribunal, first as interim orders on 11 March 2005 and finally on 20 July 2005, have had a significant financial impact on the owners of the units. He states that he is a licensed real estate agent and is familiar with the property market in Busselton and believes that the long-term rental market in Busselton is not sufficient to provide for good long-term tenants in a development of this nature which will provide a sufficient return to the owners to maintain their ownership of the units.
27 He says he believes that the orders made on 20 July are having an impact on the holiday rental market in Busselton generally and that he is informed by a Mr Peter Gordon of Waterside Villas, an adjoining development on the marina, that there will be a shortage of short-term accommodation from November 2005, as he has had numerous inquiries for accommodation which he cannot fill.
28 Finally, he deposes that he is the only owner who still has a current booking for holiday accommodation for the period from late in December
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- 2005 to the middle of January 2006 and he was at that stage awaiting the outcome of these proceedings before terminating that arrangement, that being one for people who have previously rented his unit for holiday purposes and the deposit having been accepted on 19 January 2005.
29 Mr Smout, in his affidavit filed 5 December 2005, deposes that he is a valuer and the sole director and company secretary of a company which is one of the registered proprietors of lot 13. There is a further proprietor, which is also a company. That is a family company of Phillip Robert Greaves and Caroline Lilian Greaves, who are family friends of Mr and Mrs Smout. He deposes that the purpose for which they purchased the unit was to use it for their own holiday purposes and to rent it out for holiday accommodation to others so that the costs associated with maintaining the unit could be paid from its own income.
30 He deposes that his family holidays were regularly spent in Busselton and he had hoped to purchase a property there. His family and he stayed at the unit as holiday accommodation in early 2003. At that time, the majority of the units in the complex were vacant and had been made available for short-term holiday accommodation. He says that the critical considerations taken into account when the family company purchased the unit were that it was close to the beach and he could moor his boat in the marina and it was critical that the unit could be leased out so that the financing and other costs could be paid.
31 He says that since the orders were made by the Tribunal the companies have leased the unit for a period of five months, terminating in December 2005, after which his family and the Greaves could then use the unit for their own holidays over the summer period at the end of the lease. He says he has not entered into any short-term leasing arrangements for the unit since the interim order was made on 11 March 2005.
32 He says the orders have had a serious impact upon the ownership of the property by the two family companies because they cannot afford to maintain the mortgage on the unit without leasing it and yet if the companies lease it on a permanent basis they cannot use it for the purpose for which the companies acquired it; that is, for holiday use by the Smout and Greaves families.
33 He says he seeks expedition of the hearing of the application because he believes that the rights of ownership of the unit by the family companies and the purpose for which the units were purchased have been circumvented.
(Page 10)
34 I note that Mr Smout does not state when the summer holiday use of the unit by his family and the Greaves family will run, nor is there any indication of the prospect of further letting thereafter until next summer.
35 In opposition to the applications, Ms Bonjolo deposes that she purchased unit 7 about November 2003, having been informed by the selling agent that the units in the Bijou Marina were zoned residential. At the time, the selling agent advised her that if she was interested in purchasing an apartment for short-term rental investment purposes some were being built over the road, with the appropriate zoning. However, as she intended living in whatever she chose to buy, she selected unit 7 because Bijou Marina was a residential complex.
36 When she first took up residence in the unit, she encountered no problems with other people in the marina, but only three or four units had been sold at that stage. Some three or four months after she had taken up residence, she began to encounter difficulties with people who were staying at the marina, those people not normally being residents. She says Bijou Marina is not a large complex, and so, one comes to know who the usual residents are by sight, if not by name.
37 She goes on to depose that the problems caused by such people staying at Bijou Marina principally were intrusion onto her balcony, removal of furniture and equipment from the pool area, loud parties and associated noise, incorrect use of the security parking gate resulting in damage, unauthorised use of residents' private property, incorrect car parking, using residents' designated bays or parking behind them and thereby blocking in residents' vehicles, unsupervised small children causing disruption and danger with skateboards and bicycles, excessive wear and tear on the facilities at Bijou Marina through near constant use, and concerns about the security of her unit generally.
38 Ms Bonjolo deposes that the problems she describes mainly occur during the summer months, school holidays or at a time when some local event was being held but also did occur at random during other isolated times. She states that she is not a young woman and found that these problems caused her great stress, to a point where she had difficulty sleeping at night. In addition to stress, it caused expense to the unit holders as the strata levy went to cover the cost of repairs and/or replacement of property collectively belonging to Bijou Marina caused by the short-term tenants of some of the owners but shared equally by all the owners, that being aside from loss and/or damage to items personally owned by unit holders.
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39 Finally, she deposes that since the orders made by the Tribunal - both the interim orders and the orders of 20 July 2005 - all of the problems she has described have largely disappeared, although she anticipates that if there be a stay they will return virtually immediately.
40 The affidavit of Mr Holmes is to similar effect, although he says the problems he describes principally occurred between December and April but have occurred at other times of the year.
41 Issue was taken with Mr Claffey's evidence. In his affidavit, Mr MacGregor states that he is a real estate sales representative with Roy Weston in Busselton, specialising in the Port Geographe area. He has been in the real estate industry in the general Busselton area for approximately nine and a half years and is also a councillor of the Shire of Busselton.
42 He says that he has read the affidavit of Mr Claffey sworn 3 November 2005. He says he does not know of a Mr Claffey working in the real estate industry in Busselton. He believes, based on his own personal experience, that Busselton is a specialised market and one needs to work locally in the market to properly understand it. The general residential rental return in Busselton is around 3 to 5 per cent per annum. What is long-term market rental depends upon one's definition of that phrase. He says, finally, that he does not believe the orders made by the Tribunal are having an impact on the holiday rental market in Busselton generally.
43 I am not persuaded, in any event, that the possible impact of the Tribunal's orders upon the holiday rental market in Busselton generally is a factor which can carry much, if any, weight on these applications. There would need, I think, to be considerably more cogent evidence about that.
44 In his affidavit of 10 January 2006, Mr Moss deposes that he is the registered proprietor of unit 14, in which he was in residence between approximately 21 December and 28 December 2005 and again from 4 January until 6 January 2006. He states that on 27 December he saw some people arrive to stay at unit 9. Mr Claffey, who he knows by sight, was not one of them. One of the cars had a "Princi Homes" sticker on it and he says he is informed by his solicitors, and believes that the documentary evidence before the Tribunal was, that the owners of unit 9 had agreed to rent unit 9 to a Ms Princi from 27 December 2005 to 3 January 2006.
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45 He deposes then to some further conversation with the people then staying at the unit, as well as to a conversation on 5 January 2006 with people on the balcony of unit 13, who admitted to him that they were paying rent and were there just for a couple of days.
46 The applicants' outline of submissions for the stay order was filed on 14 December 2005. Mr Moss, on the other hand, has filed two sets dated 12 December 2005 and 11 January 2006.
47 The applicants expressly do not take issue with the statement of principle articulated by Owen J in Stampalia v Stewards of West Australian Trotting Association [1999] WASC 7 at [11]. That being so, I proceed on the basis that the question is whether the applicants have demonstrated there are special circumstances sufficient to satisfy me that it is just and reasonable to order a stay so as to preserve the subject-matter and integrity of the litigation. It seems to me the notion whether it is "just and reasonable" involves a consideration of the merits of the substantive application, going beyond the test for the grant of the order nisi, which for present purposes may be stated as requiring an arguable case.
48 If a case is arguable, in the sense that a rational argument may be put, but it is one which is unlikely to succeed, then even if the consequence of not ordering a stay would have a significant adverse impact on the applicant party or parties, it might be difficult to satisfy a court that the grant of a stay would be both just and reasonable to preserve the subject-matter and integrity of the litigation.
49 The balance is between the likelihood of success combined with the adverse consequences to the applicant on the one hand against the likelihood of success combined with the adverse consequences to the respondent on the other. I take counsel's references before me today, to the balance of convenience, really to be reflecting this proposition.
50 Another factor upon which that must turn is the extent to which the subject-matter of the litigation can be preserved, which will encompass the extent to which, if at all, it has already been eroded since judgment. In his formulation, Owen J drew a distinction between the subject-matter of the litigation and the integrity of the litigation. Often they will amount to the same thing but not necessarily in every case.
51 The decision was made on 20 July 2005. A notice of originating motion for certiorari was filed on 11 October 2005, over two and a half months later. Master Sanderson granted the order nisi in the terms sought on 26 October 2005. I am informed by the Registrar that if an order for
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- expedition is made the return of the order nisi might possibly be heard on 14 February 2006, or otherwise would be in early March. If the order is not made, the return of the order nisi will not be listed until April or May.
52 The evidence shows that the applicants realistically have from now until the end of March to generate any significant rental income from their units, otherwise rentals will generally not pick up again until the end of 2006, by which time the matter will have been long resolved, at least in this Court.
53 I accept that the owners of between three and five of the six units owned by the applicants will be adversely affected by the decision over the 2005-2006 summer period from December 2005 to March 2006. However, that has not been quantified, and the difficulty is compounded by the fact that some of them at least will be staying, or are staying, in the units for their ordinary summer holiday purposes for some unspecified time.
54 If Mr Moss be correct in his submission that the majority of the applicants are not in a position to lease out their units for short-term accommodation during that period, so that a stay is not required, then it would follow that there would not in fact be a return to the problems said to have been experienced by the occupiers of other units previously.
55 I think I should proceed on the basis that the applicants, or most of them, would be able to lease out their units for short-term accommodation for some period at least between now and the end of March and that they will suffer some, albeit unquantifiable, financial loss if they are not permitted to do so. That would, however, be only for that period. Income for the remainder of the year until next summer would ordinarily be minimal, and that issue can be addressed by the Court of Appeal following the hearing.
56 It is true there is no undertaking by Mr Moss to compensate the applicants for any loss and that if they are ultimately unsuccessful there is no basis for them to recover compensation.
57 It is submitted on behalf of the applicants that that puts a stay of the order nisi in a completely different context to a stay pending appeal. As in the case of an appeal, restitutio in integrum is the right of the successful appellant (Commonwealth v McCormack (1984) 155 CLR 273, Aspermont v Lechmere Financial Corporation (2002) 27 WAR 1 at 89).
(Page 14)
58 They submit there is no such right in this case and that indeed, in the context of an appeal, the real possibility that restitution will not be made to the appellant if successful is a recognised ground for granting a stay under the more stringent "exceptional circumstances" approach. However, the fact is it was the applicants' choice to proceed by way of certiorari rather than appeal, and so this consequence is a result of their own decision.
59 The applicants will only suffer a relevant loss if they would otherwise have been able to lease out their units between now and March. If they would be able to do so, as they contend, it may be expected that the previous problems would again become manifest. On the evidence before the Tribunal and before me, those caused substantial interference to the amenity and quality of life of other residents.
60 So far as the prospects of success are concerned, I do not propose to rehearse the countervailing submissions. It is sufficient for me to say that I am not persuaded there is a sufficiently strong prospect of success to cause me to have a real concern that it would be unjust or unreasonable not to order a stay. To allow the orders to stand would not either permanently or substantially erode the subject-matter of the litigation. The effect would be confined only to the period from now until the end of March.
61 It has not been suggested that if the applicants were to succeed before the Court of Appeal the operation of the orders in the meantime would have any permanent or long-term effect, nor that it would undermine the integrity of the litigation. The orders will have even less impact on the applicants if the hearing on the return of the order nisi is expedited.
62 As to expedition, I accept Mr Kershaw's submission that the question is of considerable immediate importance to the Shire of Busselton itself and to unit holders and householders in the shire as to the operation of the provisions of the Town Planning Scheme with respect to short-term leasing, as well as its importance to the applicants. I will make the order for expedition.
63 If the applicants wish to renew their application for a stay pending judgment, they may do so. If they do, that application would presumably be supported by more specific and more detailed evidence than has been provided hitherto. The application for a stay pending the hearing on the return of the order nisi will be refused.
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