SUPREME COURT OF QUEENSLAND
CITATION: Stubberfield v Paradise Grove P/L [2000] QCA 299 PARTIES: JOHN RICHARD STUBBERFIELD
(applicant)
v
PARADISE GROVE PTY LTD ACN 053 003 302
(respondent)FILE NO/S: Appeal No 4796 of 2000
Appeal No 38 of 1993
SC No 7852 of 1996
P&E Court No 279 of 1992DIVISION: Court of Appeal PROCEEDING: Miscellaneous Application – Civil ORIGINATING COURT: Court of Appeal, Supreme Court at Brisbane and Planning and Environment Court
DELIVERED ON: 28 July 2000 DELIVERED AT: Brisbane HEARING DATE: 3 July 2000 JUDGES: Davies, McPherson and Thomas JJA
Judgment of the CourtORDER: The application of 2 June 2000, as amended, is refused. The applicant is ordered to pay the costs of the respondent, Paradise Grove Pty Ltd, to be assessed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME - whether to grant extension of time within which to apply for leave to appeal against costs orders – substantial and inadequately explained delay
BANKRUPTCY – PROCEEDINGS IN CONNECTION WITH SEQUESTRATION – PETITION AND SEQUESTRATION ORDER – EFFECT OF BANKRUPTCY ON PROPERTY AND PROCEEDINGS – PROSECUTION OF ACTIONS AND PROCESS BY AND AGAINST BANKRUPT – ACTIONS AND PROCEEDINGS BY OR ON BEHALF OF BANKRUPT – INSTITUTION OF ACTIONS AFTER SEQUESTRATION - applicant an undischarged bankrupt – whether application could only be brought by trustee of estate in bankruptcy
JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – GENERAL RULES – applications to re-open 1993 decision of Court of Appeal on appeal from Planning and Environment Court, and to stay or set aside costs orders made in other litigation - whether Court of Appeal should re-open its decision of 23 June 1993 – jurisdiction of court to re-open a decision – R v Pettigrew [1997] 1 Qd R 601 discussed in light of DJL v The Central Authority (2000) 74 ALJR 706 - whether respondent validly incorporated – invalidity of incorporation never raised as an issue in primary litigation - inappropriate for Court to determine allegations of fraud by respondent and council
LOCAL GOVERNMENT – SUBDIVISION OF LAND – CONSENT AND APPROVAL OF COUNCILS – DEVELOPMENT CONTROL PLANS - whether error of law in not finding that Development Control Plan must be amended before subdivision approved where land designated Public Open Space in Development Control Plan – point not properly raised before or determined by Court of Appeal in 1993
LOCAL GOVERNMENT – SUBDIVISION OF LAND – CONSENT AND APPROVAL OF COUNCILS – OTHER MATTERS – APPEALS – APPEALS TO COURTS, CURIAL SUPERVISION AND JUDICIAL REVIEW – GENERALLY
Local Government (Planning and Environment) Act 1990 (Qld), s 5.1(6)(a)
Supreme Court of Queensland Act 1991 (Qld), s 8(1)Cairns City Council v Hessels (1998) 98 LGERA 404, considered
Cummings v Claremont Petroleum NL (1996) 185 CLR 124, considered
Douglas Shire Council v Fabcot & Ors (1999) 103 LGERA 195, considered
DJL v The Central Authority (2000) 74 ALJR 706, considered
MEPC Australia…
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- Case
- [2000] QCA 299
- Decision Date
CaseChat Overview and Summary
The court found that the applicant, as an undischarged bankrupt, could not bring the application for leave to appeal against the costs orders as it could only be brought by the trustee of the estate in bankruptcy. Regarding the extension of time, the court held that the delay was substantial and inadequately explained, which justified the refusal to grant the extension. The court also determined that it lacked the jurisdiction to re-open its 1993 decision, and it was inappropriate for the court to determine allegations of fraud by the respondent and the council. Furthermore, the court found that the point regarding the amendment of the Development Control Plan had not been properly raised or determined in the 1993 decision.
Consequently, the court dismissed the application for leave to appeal and refused the request for an extension of time. The applicant was ordered to pay the costs of the respondent, Paradise Grove Pty Ltd, to be assessed.
Orders
Orders of the court
The application of 2 June 2000, as amended, is refused. The applicant is ordered to pay the costs of the respondent, Paradise Grove Pty Ltd, to be assessed.
Background
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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