Stubberfield v Paradise Grove Pty Ltd - [2000] QCA 299

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 1992

DIVISION: 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 Court

ORDER: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] QCA 299
Decision Date: 28 July 2000

CaseChat Overview and Summary

The case of Stubberfield v Paradise Grove Pty Ltd involved an application to appeal against costs orders and a request for an extension of time to file that appeal. The appeal was heard in the Court of Appeal of Queensland. The central legal issues were whether the applicant, who was an undischarged bankrupt, could bring the appeal and whether the court could grant an extension of time to appeal given the substantial delay in filing the application. Additionally, the case examined whether the court had the jurisdiction to re-open its previous decision from 1993, and whether there were errors in the original decision regarding the Development Control Plan and the designation of Public Open Space.

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

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 1992
DIVISION:	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 Court
ORDER:	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…