Trackcorp Adrenalin Pty Ltd ACN 117402838 v Bathurst Regional Council

[2015] HCASL 228

TRACKCORP ADRENALIN PTY LTD ACN 117402838

v

BATHURST REGIONAL COUNCIL

[2015] HCASL 228
S109/2015

1. Between 2007 and 2011, the applicant conducted an annual motor racing event, in accordance with the provisions of a five year agreement entered into with the respondent in 2007. Each year the applicant paid a fee of around $250,000 for the right to use the racing circuit and receive a suite of ancillary services to support the event. In setting the fee, the respondent had not complied with the statutory obligations in Pt 10 of Ch 15 of the Local Government Act 1993 (NSW) ("the Act"). The applicant brought proceedings claiming, among other things, that it was entitled to be repaid the amounts it had paid because it paid them acting under the mistake that the respondent was authorised to charge them.

2. On 30 May 2014, the Supreme Court of New South Wales (Darke J) held that Pt 10 of Ch 15 of the Act was not the only source of the respondent’s power to charge the fee; the respondent also had a general power to contract in connection with the exercise of its functions. His Honour held that the respondent had the power to enter into the agreement with the applicant, which included the provision relating to circuit hire fees. The claim for restitution therefore failed.

3. On 11 May 2015, the Court of Appeal of the Supreme Court of New South Wales (Macfarlan, Ward and Leeming JJA) dismissed the applicant’s appeal. Leeming JA (with whom Macfarlan and Ward JJA agreed) held that the primary judge erred in concluding that the respondent’s general power to contract permitted it to stand outside of Pt 10 of Ch 15 of the Act, but nevertheless dismissed the appeal on the basis that the applicant received good consideration for the fees it paid.

4. The applicant seeks special leave to appeal to this Court.  No issue of principle arises in this application.  An appeal to this Court would not have sufficient prospects of success to warrant a grant of special leave and there is no reason to doubt the conclusion of the Court of Appeal.  Special leave is refused.

5. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
10 December 2015
P.A. Keane