Painters Lane Developments Pty Ltd and Anor v Central Coast Council

Cases Cited: Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33

Category: Procedural rulings

Parties: Painters Lane Developments Pty Ltd (ABN 75 632 385) (First Applicant)
Mann St Enterprises Pty Ltd (ABN 52 878 207 362) (Second Applicant)
Central Coast Council (Respondent)

Representation: Counsel:
R White (Applicants)
T To (Respondent)
Solicitors:
ZBA Lawyers (Applicants)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 2025/00294402

Publication restriction: Nil

JUDGMENT – EX TEMPORE

1. Before the Court is a notice of motion filed 4 August 2025 by Painters Lane Developments Pty Ltd (‘Painters’) and Mann St Enterprises Pty Ltd (‘Mann St’) which seeks an order that the Class 4 proceedings commenced by summons by Painters and Mann St on 1 August 2025 (amended 15 August 2025 and again today) seeking declaratory relief that a deferred commencement development consent granted by Central Coast Council (‘Council’) on 29 April 2020 is operational and has not lapsed, be expedited.

2. Council neither consents nor opposes the application for expedition of the proceedings as now pleaded. In its submissions it became clear that Painters seeks the somewhat extraordinary relief that the Class 4 proceedings be set down for hearing and determined prior to Monday, 1 September 2025.

3. For concision, I shall refer to Painters and Mann St (an associated or related company to Painters), the applicants, as Painters. Painters reads the affidavit of its sole director, James Michael Moses, affirmed 19 August 2025.

Background

4. The background facts, which are largely uncontentious, can be shortly stated. On 29 April 2020, Council granted deferred commencement development consent to DA 49578/2016 to Mann St, being the then owner of land at 321, 325 and 331 Mann Street, Gosford which is now owned by Painters (‘Site’), for a commercial and shop top housing development (‘Development Consent’). Mann St NSW Pty Ltd was the owner of the neighbouring land at 333-337 Mann Street, Gosford at that time. The proposed development provided for sewer related works to be constructed on the neighbouring land.

5. The Development Consent was granted subject to two deferred commencement conditions, styled 1.1(a)(i)-(v) and 1.1(b)(i), which provide:

“1.1. This consent does not operate until the following have been satisfied

a) The Applicant shall prepare and provide to Sydney Trains for approval/certification the following items:

i. Geotechnical and Structural report/drawings that meet Sydney Trains requirements. The Geotechnical Report must be based on actual borehole testing conducting on the site closest to the rail corridor.

ii. Construction methodology with construction details pertaining to structural support during excavation. The Applicant is to be aware that Sydney Trains will not permit any rock anchors/bolts (whether temporary or permanent) within its land or easements.

iii. Cross sectional drawings showing the rail corridor, sub soil profile, proposed basement excavation and structural design of sub ground support adjacent to the rail corridor. All measurements are to be verified by a Registered Surveyor.

iv. Detailed Survey Plan showing the relationship of the proposed developed with respect to Sydney Trains easement and rail corridor land.

v. If required by Sydney Trains, an FE analysis which assesses the different stages of loading-unloading of the site and its effect on the rock mass surrounding the rail corridor.

Any conditions issued as part of Sydney Trains approval/certification of the above documents will also form part of the consent conditions that the Applicant is required to comply with.

b) The submission of the following to allow the applicant to gain permission to undertake sewer relocation work:

i. Written permission and deed of agreement to enter the site and construct the sewer location is to be obtained from the owners of No. 333-337 Mann Street.

Evidence must be produced to the consent authority sufficient to enable it to be satisfied that above conditions have been complied within Twelve (12) months of the date of this approval, otherwise this consent will lapse.

Upon compliance with the conditions of deferred commencement Council will issue an operative consent (including stamped plans) that is subject to the attached conditions.”

6. Although the conditions provided that the Development Consent would have lapsed on or about 29 April 2021, it appears that on or about 4 September 2023, the Department of Planning and Environment advised Mann St that the period of time for providing evidence to enable Council to be satisfied that the deferred commencement conditions had been complied with was extended until 29 April 2025. I interpose that this extension appears to be the result of what has become known as the “COVID extensions”.

7. In any event, it is contended on behalf of Painters that on or about 18 March 2021, Mann St (through Mr Moses) provided to a Council officer documentary material including an “executed deed” in an email. Painters contends that the material satisfied the deferred commencement conditions (in particular, the requirements of Condition 1.1(b)(i)) which Painters was required to fulfill.

8. Notwithstanding the above, some four years later, on or about 29 April 2025, Painters provided further material to Council which it also contends was sufficient to enable Council to be satisfied that the deferred commencement conditions had been complied with. In these circumstances, it appears that the primary question is whether or not the provision to Council of the email attaching what is referred to in the evidence as an “executed deed” on 18 March 2021 was sufficient to satisfy that which was required to be satisfied prior to 29 April 2025.

9. The principles that I am required to apply in relation to an application for expedition are well-known and do not invite repetition, except to note that there is no specific power dealing with expedition under either the Civil Procedure Act 2005 (NSW) (‘CP Act’), the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), the Land and Environment Court Act 1979 (NSW) or the Land and Environment Court Rules 2007 (NSW). The power to grant expedition is found in s 61 of the CP Act and r 2.1 of the UCPR. Section 61 of the CP Act enables the Court to give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings, and r 2.1 of the UCPR provides that the Court, at any time, is able to give such directions and make such orders for the conduct of proceedings as appear convenient for the just, quick and cheap disposal of the proceedings.

10. The principles were considered by Young J in Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 (‘Greetings Oxford Koala’) at 42 and 43 which, given the urgent nature of this application, I do not summarise, except to note that Young J identified that there ought to be some special factor warranting expedition which may include, first, that the subject matter of litigation will be lost if the case is not heard quickly; second, that the applicant is suffering hardship not caused through his own fault; and third, that there are large sums of money involved. Young J also indicated that the parties need to have proceeded up to the date of the hearing for expedition with due speed, and that the parties should be willing (if expedition is granted) to do all things in their power to attend to the expedited hearing if it is ordered. In addition, the Court also noted that there are two further factors, first, any application for expedition must be judged in light of other cases of equal or higher priority that also seek an expedited hearing, including considering whether there has been real commercial hardship suffered; and second, any “right” to expedition is a right to have the case fixed on one occasion.

Submissions

11. The Court received detailed written and oral submissions from Painters to the following effect:

12. Expedition is warranted as Mr Moses has deposed to Painters’ receipt of a default notice regarding loans from Painters’ financier, La Trobe Financial, which has provided funding in the sum of $9.6 million in relation to the development the subject of the Development Consent as well as $10.32 million to another company controlled by Mr Moses for a separate development (‘La Trobe Loans’). On 21 July 2025, default notices were issued in respect of the La Trobe Loans, specifying a “rectification date” of 1 September 2025. On 21 October 2024, Painters entered into a private secured loan for $750,000 to cover interest payments on the La Trobe Loans (‘Secured Loan’) which presently incurs interest of $50,000 per month.

13. On or about 26 March 2025, Painters entered into a contract for the sale of the Site with Mann St Gosford Pty Ltd for $30 million (‘Contract for Sale’). Completion of the Contract for Sale is contingent on an operational development consent being issued, and the funds payable to Painters under the Contract for Sale are to be used to satisfy the La Trobe Loans and the Secured Loan.

14. If the proceedings are not expedited and determined by 1 September 2025, it is likely that the La Trobe Loans will be in default as the funds from the Contract for Sale will not be available to repay the La Trobe Loans by the rectification date (1 September 2025) and Painters’ financier may require repayment of the loaned monies and the interest owing on the loans presently totalling approximately $22 million, which will cause Painters “significant” financial hardship and potential insolvency. Moreover, Painters’ financier may take possession of, first, the Site, which will prevent completion of the sale of the Site under the Contract for Sale (and deprive Painters of the benefit of the Development Consent); and second, the separate development which is the subject of an offer and contract to be purchased for $24 million. The Secured Loan will also likely remain with interest accruing, causing Painters further financial hardship and potential insolvency.

15. Approximately $14.5 million has been spent by Painters in obtaining the Development Consent and the satisfaction of conditions 1.1(a)(i)-(v) and 1.1(b)(i). If the proceedings are not heard and determined by 1 September 2025 and the La Trobe Loans go into default, then it is likely that the approximate $14.5 million expended on obtaining the Development Consent will be wasted.

16. Painters contends that the final hearing on the relatively limited issue will take no more than one day.

17. Council has not filed any evidence or made submissions opposing the relief sought in the notice of motion (in circumstances where the amended summons is to be further amended), however, submits that there may be difficulty in Council urgently preparing its case. Council accepts that it has the responsibilities of a model litigant and that there is some public interest in the determination of the legitimacy of the Development Consent.

Consideration

13. Doing the best I can and noting that Painters has today further amended the summons so that the primary issue involved is somewhat narrower, I am of the view, not without some anxious consideration, that balancing the interests of justice and the ability of both the parties to prepare the matter for hearing and for the Court to accommodate the relatively expedited hearing, it is appropriate to grant expedition on conditions. My reasons may be shortly stated.

14. First, the evidence of Mr Moses (on behalf of Painters) is presently uncontested, and it is likely that the sum of approximately $10 million secured over the Site will be the subject of default and Painters’ financier is likely to take possession of the Site in circumstances where Painters has entered into the Contract for Sale, the completion of which is contingent upon the Development Consent being operational. Painters maintains that if the Development Consent is found to have been operational, the Contract for Sale will then be triggered, and Painters will be able to meet its commitments to its financiers.

15. Although I have concerns in relation to the cogency of the material in relation to Painters’ (and Mr Moses’) dealings with its financiers including the adequacy/cogency of the Contract for Sale, given that there is no evidence marshalled by Council either contesting this position or raising any material prejudice, and given the narrowing of the issues raised between the parties, I am satisfied that the interests of justice are better met by granting expedition in a way that allows the hearing to proceed in a reasonable and timely manner.

16. While I accept that, to some extent, Painters is in the position it is in due to its own conduct, I repeat that the uncontradicted evidence is that there is a likelihood that the financier will seek immediate relief (and seek the payment of $22 million) and take possession of the Site, and I also take into account the uncontested evidence that $14.5 million has been spent on obtaining the Development Consent and that such monies will effectively be lost.

17. I would not have been inclined to allow the matter in its earlier pleaded form (which raised a number of alternative claims) to be expedited, and I likely would not have entertained an application under r 28.2 of the UCPR for determination of a separate question. I am also aware that the Court can accommodate the hearing which I consider should be completed in one day, on 2 and 3 September 2025. Although this timing does not meet the desire of Painters, given the notice of default issued by Painters’ financiers, I have sought to allow Council some time to prepare its case and the Court to accommodate the hearing.

18. I express no view in relation to the prospects of success, except to note (as is accepted by Council) that the claim is arguable in the sense that it is not speculative: Greetings Oxford Koala at 43.

Orders

19. The orders of the Court are:

20. Leave is granted to Painters Lane Developments Pty Ltd to rely upon a further amended summons filed in Court at 2.00pm on 22 August 2025.

21. The hearing is set down for 2 days on 2 and 3 September 2025 before Robson J.

22. Painters Lane Developments Pty Ltd is to file and serve all evidence and an outline of submissions on or before 4.00pm on Monday, 25 August 2025.

23. Central Coast Council is to file and serve any evidence on or before 5.00pm on Thursday, 28 August 2025 and file and serve an outline of submissions by 4.00pm on Friday, 29 August 2025.

24. The proceedings are listed for pre-trial mention at 9.00am on Friday, 29 August 2025.

25. Costs of the notice of motion filed 4 August 2025 will be costs in the cause.

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