Connect Global Limited (administrator appointed) v Port Stephens Council

Cases Cited: Connect Global Limited v Port Stephens Council [2024] NSWLEC 1637

Category: Principal judgment

Parties: Connect Global Limited (administrator appointed)(Applicant)
Port Stephens Council (Respondent)

Representation: Counsel:
M Hall SC, G Long (Solicitor) (Applicant – up until appointment of administrator)
M Cottom (Solicitor) (Respondent)
Solicitors:
Sparke Helmore Lawyers (Applicant – up until appointment of administrator)
Local Government Legal (Respondent)

File Number(s): 2022/259609

Publication restriction: Nil

Judgment

1. COMMISSIONER: On 31 August 2022, Connect Global Limited (the applicant in these proceedings) filed a Class 1 application in the Land and Environment Court appealing a development control order (DCO) issued by Port Stephens Council (Council). The DCO has the Council reference No 40-2022-70-2 and related to certain premises occupied by the applicant at Fisherman’s Village Swan Bay. The DCO is a “stop use” order, pursuant to s 9.34 and ltem 1 of Pt 1, Sch 5 of the Environmental Planning and Assessment Act, 1979 (EPA Act), and requires the applicant to stop using the relevant premises for the purpose of a "transitional group home". The terms of the DCO are as follows:

Port Stephens Council (the "Council") orders Connect Global Pty Ltd as the occupier of the Premises to stop using the Premises for the purpose of a "transitional group home" and to only use the Premises for its approved use.

2. The premises are identified as:

Lots 2, 42,43, 3, 5, 6, 8, 9, 10, 11, 15, 17 , 18, 19, 20, 21, 22, 23, 26, 27, 29,30, 31 , 32, 33, 34, 35, 36, 37, 38 in DP285220, Old Punt Road, Swan Bay.

Background

3. The applicant’s appeal against the DCO was initially heard by the Court over four hearing days concluding on 1 July 2024, with written submissions filed on 23 July 2024. The DCO appeal was heard together with an appeal (filed by the same applicant), against the refusal (by the same respondent) of a development application (DA) seeking development consent for the transitional group home. The outcome of the hearing at that point is documented in a judgement of the Court handed down on 11 October 2024 (Connect Global Limited v Port Stephens Council [2024] NSWLEC 1637). Additional background material relating to the matter is available in this judgement.

4. With respect to the DA appeal, the Court made orders granting a two year time limited consent, including a requirement for certain pre-requisites to be completed prior to the issue of an occupation certificate (OC). With respect to the DCO appeal, orders were made to adjourn the hearing, pending the issue of the OC pertaining to the above development consent. The point of my orders with respect to the DCO were to provide for some assurance as to the completion of important pre-requisites (pre-emptors for the operation of the development) prior to the lifting of the DCO. At the time, there was a fairly short time horizon identified for the completion of these pre-requisites.

5. Since then, the DCO appeal has remained in abeyance, with four further listings (either in-person via AVL or through Online Court (OLC)) in relation to the status of relevant pre-requisites to the issue of the OC.

6. Most recently, and in accordance with Court orders made 20 March 2025, the DCO proceedings resumed for mention on 7 April 2025 via Audio Visual Link (AVL). The respondent appeared but there was no appearance on behalf of the applicant and the hearing was further adjourned.

Connect Global under external administration

7. Prior to this, and again in accordance with Court orders, advice had been provided to the Court that Connect Global Limited was under external administration. This advice had been provided by Mr Long, a lawyer who had been appearing for the applicant. The advice was documented in an email which included a note dated 20 March 2025 from Mr Long and a copy of an ASIC company search. This “ASIC company search” indicated the name of the administrator as Daniel Jon Quinn of SV Partners Suite 2, Level 1, 1 Market Street Newcastle NSW 2300. The date of appointment of the administrator was indicated to be 14/02/2025.

8. In the note dated 20 March 2025, Mr Long cited s 440D of the Corporations Act 2001 (Cth) (Corporations Act) which relevantly provides as follows:

“Stay of proceedings

(1) During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:

(a) with the administrator's written consent; or

(b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes.”

9. Mr Long indicated a view that these provisions would place all proceedings on hold until such time as the administrator determines the financial position of the corporation.

10. My concern with this submission is that s 440D of the Corporations Act would not seem to apply here, as in this instance it is the company under administration (ie Connect Global Limited) which has brought the DCO appeal proceedings. That is, these are not “a proceedings in court against a company” (writer’s emphasis). That is not at all to say that the administrator should not have an opportunity to be heard in relation to the DCO appeal proceedings.

Facilitating the just, quick and cheap resolution of the real issues in the proceedings

11. Under s 56 of the Civil Procedure Act 2005 (CP Act), there is a duty on the Court to give effect to the overriding purpose of the CP Act, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

12. There is a concern as to the time and cost associated with these particular proceedings, both in relation to the parties and the Court.

13. A written submission from the respondent dated 26 March 2025 submitted that because “the hearing of this matter has been adjourned since 11 October 2024, these proceedings are not being prosecuted by the applicant with due despatch”. The respondent indicated a path for the finalisation of these DCO proceedings, recommending the DCO order be modified as follows:

“PREMISES**:** Lots 1, 2, 42, 43, 45, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 15, 17, 18, 19, 20, 21, 22, 23, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 in DP285220, Old Punt Road, Swan Bay. …

TERMS OF ORDER

Port Stephens Council (the “Council”) orders Connect Global Pty Ltd as the occupier of the Premises to stop using the Premises for the purpose of a “transitional group home”, except in accordance with development consent DA 16-2022-839-1, and to only use the Premises for its approved use(s).”

14. The respondent’s suggested change would amend the DCO to provide that the applicant is to stop using the premises for a transitional group home except in accordance with the development consent. There are also some changes to the nominated “premises” which I return to below.

Communication with the administrator

15. I determined it appropriate that the administrator be advised that I was giving consideration to this submission of the Council and that there was an opportunity for the administrator to be heard on this or other matters. In turn, I prepared a background OLC communication to the parties and made OLC orders as follows:

“1.The Registrar is to forward to the external administrator, appointed to Connect Global Limited, a copy of the Court’s communication to the parties dated 16 April 2024.

2.The Respondent is to forward a copy of its written submission to the Court of 26 March 2025 to the external administrator to Connect Global: Daniel Jon Quinn of SV Partners Suite 2, Level 1, 1 Market Street Newcastle NSW 2300. This is to occur by 24 April 2025 and the Court is to be advised by the respondent of the date of the forwarding to the administrator of the submission dated 26 March as soon as practicable after.

3.The external administrator to Connect Global is invited to communicate with the Court by 16 May 2025 as to any submissions it wishes to make in regard to the respondent’s written submissions of 26 March 2025.

4.In its communication with the external administrator the Registrar is to provide the Court’s contact particulars.”

16. On 22 April, the respondent advised via OLC that it had forwarded a copy of its written submission to the Court of 26 March 2025 to the external administrator on that day via express post.

17. On 15 May 2025, the administrator replied to the communication of the Court and the respondent. It was indicated that the administrator did not wish to make any submissions in response to the respondent’s written submission of 26 March 2025. The administrator also advised that the applicant had ceased operating from the site.

Assessment and determination

18. While I note the administrator’s advice that the applicant has ceased operating from the site, there is no move that I am presently aware of to suggest the discontinuance of the proceedings. As the proceedings remain afoot, the Court’s attention to them remains necessary and appropriate.

19. As indicated at [4], the intention of the adjournment of the DCO proceedings (that is rather than having it fall away with the grant of consent to the DA), was to provide for some assurance as to the completion of important pre-requisites to the operation of the DA.

20. The principle adopted in the respondent’s draft orders seems to me to have a similar effect. That is to say, as the DA would not be eligible for an OC and thus become operational until the completion of what I term the important pre-requisites, then under these draft orders, the transitional group home would be ordered to not operate until this occurs. In turn, were an OC to issues and the DA become operational, then the order would have no effect. In that sense I support the respondent’s draft orders in principle. However, there are two particulars of concern.

21. First, I note the respondent’s addition of a number of parcels of land into the ambit of the order. It seems that Lots 1, 45, 4, 7, 13, 39 and 40 of DP 285220 are parcels of land which would come under the respondent’s draft orders which were not included in the original order. For my purposes here I can accept in the course of the hearing it was made clear that these parcels formed part of the transitional group home operation as it then was operating. However, I am unconvinced that I should make any findings with respect to these additional parcels. It is clear that there are quite wide powers with the Court in respect to appeals concerning orders under s 8.18(4) of the EPA Act, including with respect to amending or making such orders with respect to compliance with the development control order as the Court sees fit. However, each of these powers relate to the “development control order”. A substantive element of the DCO in this instance is the identification of “premises”. The order is to stop using “the premises”. Here I am mindful of the regulatory processes for the giving of orders under Pt 5 of Sch 5 of the EPA Act. The DCO before me does not apply to these additional premises. While I am aware that there has been no objection raised to this inclusion, without further authorities to demonstrate the case, I am uncertain that there is power available to add these new lots to the orders made. In all of the circumstances, rather than seek further submissions on the question, I have determined to retain the listing of premises as nominated in the original order.

22. Second, is in regard to the final wording of the original (and proposed) order which provides a secondary perhaps provision for the occupier to “only use the Premises for its approved use”. It is noted that there are certain uses of land which do not require consent under the statutory scheme. It seems unreasonable and impractical to adopt the phrasing suggested by the respondent additional text to allow other lawful uses will be added.

Orders

23. The Court orders that:

24. The appeal is upheld in part.

25. The Court modifies Port Stephens Council development control order No 40-2022-70-2 to replace the current “terms of order” with the following text:

“Port Stephens Council (the “Council”) orders Connect Global Pty Ltd as the occupier of the Premises to stop using the Premises for the purpose of a “transitional group home”, except in accordance with development consent DA 16-2022-839-1, and to only use the Premises for its approved use(s) or other lawful uses.”

3. These findings are to be forwarded to the external administrator, appointed to Connect Global Limited.

P Walsh

Commissioner of the Court

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Amendments

28 May 2025

Corrected the representation of the solicitor for the applicant