Watergate Developments Pty Limited v Coffs Harbour City Council (No.2)
[2010] NSWLEC 18
•11 February 2010
Land and Environment Court
of New South Wales
CITATION: Watergate Developments Pty Limited v Coffs Harbour City Council (No.2) [2010] NSWLEC 18 PARTIES: APPLICANT
Watergate Developments Pty Limited
RESPONDENT
Coffs Harbour City CouncilFILE NUMBER(S): 10980 of 2006 CORAM: Sheahan J KEY ISSUES: PRACTICE AND PROCEDURE :- Notice of Motion to reopen proceedings - issues of standing, and jurisdiction of the court - winding up of party - status of local government - delay - juries - costs LEGISLATION CITED: Civil Procedure Act 2005
Corporations Act 2001
Local Government Act 1993
Uniform Civil Procedure Rules 2005CASES CITED: Teoh v Hunters Hill Council & Another (No.3) [2009] NSWLEC 121
Watergate Developments Pty Limited v Coffs Harbour City Council [2007] NSWLEC 558DATES OF HEARING: 11 February 2010 EX TEMPORE JUDGMENT DATE: 11 February 2010 LEGAL REPRESENTATIVES: APPLICANT
Mr J VellaRESPONDENT
Ms A Finnerty , Solicitor, as Agent for
SOLICITORS
MBT Lawyers
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESSheahan J
11 February 2010
EXTEMPORE JUDGMENT10980 of 2006 WATERGATE DEVELOPMENTS PTY LIMITED v COFFS HARBOUR CITY COUNCIL (No.2)
1 His Honour: Josephine Vella is, or was at a material time, a director of the applicant in these Class 1 proceedings.
2 The proceedings were heard and determined in favour of the Council by Moore C on 27 August 2007 (see the Commissioner’s judgment [2007] NSWLEC 558). The applicant was represented by a solicitor in that hearing.
3 The applicant subsequently did not appear to resist the Council’s Notice of Motion for its costs of the proceedings on 6 October 2007, and Jagot J made an order in favour of the Council. Her Honour’s reasons have not been published.
4 Neither of those decisions of this court was appealed.
5 Council appears to have later petitioned the Supreme Court to wind up the company and that court made such an order on 22 July 2008.
6 The liquidator appointed by that court is David Michael Morgan of Clout and Associates.
7 On 20 January 2010, Josephine Vella filed Notice of Motion and a supporting affidavit. That Notice of Motion seeks the following:
- “(i) A PROHIBITIVE INJUNCTION be issued to stop any action resulting from the Judgment of the Court made on 5 October 2007.
(ii) The awards doings and proceedings pertaining to this matter be struck out and declared null and void.
(iii) Such further orders as the Court sees fit.
- UPON THE GROUNDS that the Coffs Harbour City Council is an illegal entity because the 1988 Referendum voted that Local Government not be established nor continued.”
8 Her affidavit makes a variety of complaints and allegations about the Council, and its conduct of its affairs and these proceedings. She asserts (par 4) that the referendum decision in 1988 “outlawed Local Government in Australia”, and her representative asserts today that her private property rights as an owner in fee simple have been seriously infringed.
9 When the Notice of Motion was listed today, Mr John Vella appeared for the applicant company, in reliance upon a power of attorney in his favour from “Jo Vella (Director)” of the applicant company, dated 18 January 2010.
10 On 29 January 2010, Mr Morgan wrote to the court (1) formally advising of his appointment, (2) advising that, pursuant to s 471A(1) of the Corporations Act 2001, Mrs Vella cannot exercise any function as an officer of the applicant company, and (3) advising that she has no written approval from him or from the Supreme Court to bring this motion. He asked for it to be dismissed.
11 I allowed Mr Vella to make fulsome submissions, despite the irregularity of his and the applicant’s position in respect of the matter.
12 Essentially Mrs Vella wants to reopen the proceedings, despite perfection of both substantive and costs orders made in 2007.
13 Clearly such an application should have been made long ago.
14 “Exceptional circumstances” are argued from the bar table, but there is no evidence presented to support that case so far as the earlier hearings were concerned.
15 The relevant principles and the requirements of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 were discussed at length in my judgment in Teoh v Hunters Hill Council & Another (No.3) [2009] NSWLEC 121, and I adopt and apply those principles here.
16 Mr Vella’s submissions, however, go far beyond the question of reopening. His or Mrs Vella’s complaints about the Council are largely beyond the jurisdiction of the court, and their desire to ventilate them before a jury or the High Court of Australia cannot be accommodated in these proceedings.
17 Further, (1) the proceedings cannot advance without the liquidator’s approval, and (2) this court is in no doubt that the Council is a legal entity in a valid system of local government established in New South Wales, and regulated by, the Local Government Act 1993, regardless of the failure of the referendum to acknowledge its existence in the constitution.
18 Mr Vella acknowledged that the letter Council’s solicitors, MBT Lawyers, sent to Mrs Vella on 1 February regarding this Notice of Motion was received by her. She having not discontinued the Notice of Motion as requested, Mrs Vella remains vulnerable to a costs order.
19 For the reasons I have briefly stated – lack of standing, lack of jurisdiction, lack of adequately authorised representation, lack of the liquidator’s or the Supreme Court’s consent, delay in seeking to reopen, and lack of evidence to satisfy the principles and statutory requirements explained in Teoh v Hunters Hill – I dismiss this Notice of Motion, and order that Josephine Vella of “Riverbend” Kungala New South Wales, as its mover in her private capacity, pay the Council’s costs on a party-party basis, to be agreed, or assessed according to law.
ORDERS
20 The orders of the court will, therefore, be:
(1) Notice of Motion dated 20 January 2010 is dismissed.
(2) Josephine Vella is to pay Council’s costs of that Notice of Motion on a party-party basis, to be agreed, or assessed according to law.
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