Younie v Dender - [2014] QPEC 70

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Younie & Anor v Dender & Ors [2014] QPEC 70

PARTIES:

SCOTT ANDREW YOUNIE and KAREN MICHELLE YOUNIE
(Applicants)

and

ANTHONY JOSEPH DENDER and BARBARA MARY DENDER
(First Respondents)

and

PEREGIAN PET RESORT PTY LTD ACN 137550531
(Second Respondent)

and

SUNSHINE COAST REGIONAL COUNCIL
(Third Respondent)

FILE NO/S:

174/13

DIVISION:

Planning & Environment Court

PROCEEDING:

Originating application

ORIGINATING COURT:

Planning & Environment Court, Maroochydore

DELIVERED ON:

5 December 2014

DELIVERED AT:

Maroochydore

HEARING DATE:

5 December 2014

JUDGE:

Robertson DCJ

ORDER:

1.   The oral application made on behalf of the first and Second Respondents for an extension of time in relation to order 5 of the order made 15 October 2014 is refused.

2.   The First Respondents and the Second Respondent jointly and severally pay the Applicants’ costs of and incidental to this proceeding on an indemnity basis (including the costs of two counsel).

3.   The Applicants’ costs of and incidental to this proceeding include all costs relating to investigations and gathering evidence for the making of the declarations and orders and the bringing of this proceeding, including applications pursuant to the Right to Information Act 2009.

CATCHWORDS:

PLANNING AND ENVIRONMENT COURT – ORIGINATING APPLICATION – where Applicants as private citizens applied for declarations and enforcement orders alleging multiple breaches of a court approved material change of use permit granted on 14 January 2005 – where hearing proceeded on 13 October 2014 over three days – where at the conclusion of the hearing the First Respondents and Second Respondents represented by Anthony Joseph Dender agreed to negotiate with the other parties resulting in an order made on 15 October 2014 which was essentially in terms of the declarations and orders sought in the originating application filed on behalf of the Applicants – where First and Second Respondents have filed no material to indicate compliance with the 15 October 2014 order – where the only evidence of partial compliance comes from an affidavit filed by the Applicants’ solicitor – where the First and Second Respondents seek an extension of time for the operation of enforcement order no. 4 in the order dated 15 October 2014 – where application is opposed by Applicants – where Applicants have applied by way of application in pending proceeding for an order for indemnity costs against the First and Second Respondents – where Applicants seek costs of investigations pursuant to the SPA

COUNSEL:

Applicants: Mr Litster QC and Mr Beehre of counsel.

First and Second Respondents: Self-represented by Anthony Joseph Dender.

Third Respondent: Mr Skoien of counsel.

SOLICITORS:

Applicants: Andrew Morris Legal Practice

First and Second Respondents: Self-represented

Third Respondent: Sunshine Coast Regional Council Legal Service

On 5 December 2014 I made orders in terms of paragraphs 1 and 2 of the Applicants’ Application in Pending Proceedings filed 2 May 2014, and I refused an oral application made by Mr Dender on behalf of the First and Second Respondents to extend the time referred to in paragraph 5…

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: [2014] QPEC 70
Decision Date: 5 December 2014

CaseChat Overview and Summary

Younie v Dender involved an originating application brought by private citizens who sought declarations and enforcement orders against the respondents, alleging multiple breaches of a court-approved material change of use permit granted on 14 January 2005. The hearing took place over three days from 13 October 2014, culminating in an agreement between the respondents and the other parties to negotiate, leading to an order made on 15 October 2014 that largely reflected the declarations and orders sought in the originating application. Despite this, the respondents provided no evidence of compliance with the 15 October 2014 order, with the only indication of partial compliance coming from an affidavit filed by the applicants’ solicitor. The respondents subsequently sought an extension of time for the operation of enforcement order no. 4 in the order dated 15 October 2014, an application opposed by the applicants.

The primary legal issue before the court was whether the respondents were in compliance with the 15 October 2014 order and whether an extension of time for the enforcement order should be granted. The applicants argued that the respondents had failed to comply with the order, while the respondents claimed that the order was ambiguous and required clarification. The court found that the respondents had not provided any evidence of compliance with the order and that the order was clear and unambiguous. The court also found that the respondents' application for an extension of time was without merit and refused the application.

In light of the findings, the court made several orders. Firstly, the oral application made on behalf of the respondents for an extension of time in relation to order 5 of the 15 October 2014 order was refused. Secondly, the respondents were ordered to jointly and severally pay the applicants’ costs of and incidental to the proceeding on an indemnity basis, including the costs of two counsel. Lastly, the applicants’ costs of and incidental to the proceeding included all costs relating to investigations and gathering evidence for the making of the declarations and orders and the bringing of the proceeding, including applications pursuant to the Right to Information Act 2009.

Orders

Orders of the court

1. The oral application made on behalf of the first and Second Respondents for an extension of time in relation to order 5 of the order made 15 October 2014 is refused.

2. The First Respondents and the Second Respondent jointly and severally pay the Applicants’ costs of and incidental to this proceeding on an indemnity basis (including the costs of two counsel).

3. The Applicants’ costs of and incidental to this proceeding include all costs relating to investigations and gathering evidence for the making of the declarations and orders and the bringing of this proceeding, including applications pursuant to the Right to Information Act 2009.

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:	Younie & Anor v Dender & Ors [2014] QPEC 70
PARTIES:	SCOTT ANDREW YOUNIE and KAREN MICHELLE YOUNIE (Applicants) and ANTHONY JOSEPH DENDER and BARBARA MARY DENDER (First Respondents) and PEREGIAN PET RESORT PTY LTD ACN 137550531 (Second Respondent) and SUNSHINE COAST REGIONAL COUNCIL (Third Respondent)
FILE NO/S:	174/13
DIVISION:	Planning & Environment Court
PROCEEDING:	Originating application
ORIGINATING COURT:	Planning & Environment Court, Maroochydore
DELIVERED ON:	5 December 2014
DELIVERED AT:	Maroochydore
HEARING DATE:	5 December 2014
JUDGE:	Robertson DCJ
ORDER:	1. The oral application made on behalf of the first and Second Respondents for an extension of time in relation to order 5 of the order made 15 October 2014 is refused. 2. The First Respondents and the Second Respondent jointly and severally pay the Applicants’ costs of and incidental to this proceeding on an indemnity basis (including the costs of two counsel). 3. The Applicants’ costs of and incidental to this proceeding include all costs relating to investigations and gathering evidence for the making of the declarations and orders and the bringing of this proceeding, including applications pursuant to the Right to Information Act 2009.
CATCHWORDS:	PLANNING AND ENVIRONMENT COURT – ORIGINATING APPLICATION – where Applicants as private citizens applied for declarations and enforcement orders alleging multiple breaches of a court approved material change of use permit granted on 14 January 2005 – where hearing proceeded on 13 October 2014 over three days – where at the conclusion of the hearing the First Respondents and Second Respondents represented by Anthony Joseph Dender agreed to negotiate with the other parties resulting in an order made on 15 October 2014 which was essentially in terms of the declarations and orders sought in the originating application filed on behalf of the Applicants – where First and Second Respondents have filed no material to indicate compliance with the 15 October 2014 order – where the only evidence of partial compliance comes from an affidavit filed by the Applicants’ solicitor – where the First and Second Respondents seek an extension of time for the operation of enforcement order no. 4 in the order dated 15 October 2014 – where application is opposed by Applicants – where Applicants have applied by way of application in pending proceeding for an order for indemnity costs against the First and Second Respondents – where Applicants seek costs of investigations pursuant to the SPA
COUNSEL:	Applicants: Mr Litster QC and Mr Beehre of counsel. First and Second Respondents: Self-represented by Anthony Joseph Dender. Third Respondent: Mr Skoien of counsel.
SOLICITORS:	Applicants: Andrew Morris Legal Practice First and Second Respondents: Self-represented Third Respondent: Sunshine Coast Regional Council Legal Service