1. The parties must bring in short minutes to give effect to these reasons.
2. Costs reserved.

Mr George Golvan, QC with Mr Michael Borsky, Barrister

1. This proceeding concerns a large shopping centre in Camberwell. This centre has had a chequered history over the years. It was in the early 1990s the subject of extensive litigation in the Supreme Court of Victoria. There was a vicious public debate as to proposals greatly to enlarge it in the late 1980s.
2. This proceeding relates or ultimately derives from a new redevelopment proposal advanced by the applicant and owner of the centre Sixty-Fifth Eternity Pty Ltd. One of the obstacles that Sixty-Fifth Eternity's latest proposal has encountered is an allegation that its proposal is in conflict with an agreement which its predecessor in title, Fabcot Pty Ltd entered into with the respondent in this proceeding, Boroondara City Council which was then and is now the Responsible Authority for planning matters relative to the centre. When this difficulty was encountered, the present proceeding was commenced whereby Sixty-Fifth Eternity Pty Ltd seeks as against Boroondara City Council as Responsible Authority and a party to the agreement made between it and Fabcot under Section 173 of the Planning and Environment Act 1987 in 1995, relief under Section 184 of that Act, in substance that the shopping land should no longer be bound by the terms of the agreement. The allegation is that in the circumstances the Boroondara City Council has repudiated the agreement, that Sixty-Fifth Eternity Pty Ltd as the now owner of the land has accepted such repudiation and hence on orthodox contractual principles the agreement is at an end and no longer binding and enforceable.
3. This matter stands for final determination later in the year. Even although it is a matter of the Planning and Environment List and arises out of what are ultimately planning issues in the manner which I have described, it is clear that the present proceeding raises issues of general contract and property law in a manner which renders it quite different from the ordinary run of proceedings in the Planning and Environment List.
4. Deputy President Gibson late last year gave comprehensive directions as to the hearing and determination of this matter and also made orders effectively putting on ice the proceedings relating to the merits of the wider redevelopment proposal pending the outcome of this one.
5. Her directions did not include any provision for discovery. One may debate why this would be so. Mr Golvan who appears for the applicant, Sixty-Fifth Eternity Pty Ltd, says that his clients sought no discovery orders at that stage because when the directions were given the statement of grounds on behalf of Boroondara City Council which in the context of a proceeding under the Planning and Environment Act serves as its defence or points of defence was not available to his client at the time. Subsequently once those grounds were available, Sixty-Fifth Eternity's solicitors, first, sought voluntary discovery as to certain matters and when that proposal was not accepted by Boroondara has brought the matter to the Tribunal seeking orders for compulsory discovery.
6. The headings with respect to which discovery are sought are lengthy and are numbered (a) to (e). (e) has some four sub-paragraphs distinguished amongst one another by Roman numerals. Given that it is already late on Friday evening, I do not propose reading the entirety of what is sought. I will however from time to time make reference to it.
7. The granting of any discovery is in the circumstances opposed by Boroondara. Mr Garde, QC and Mr Jackson appearing for Boroondara contend first that it is generally not the practice in the Tribunal to grant discovery at all in Planning and Environment List matters and that in the circumstances here there are, additional to the matters of general practice in the Tribunal particular reasons why discovery ought not to be given. The centre has as I previously noted, had a chequered history with much disputation relative to it. Therefore, says Mr Garde any discovery which is ordered will be particularly oppressive because of the volume of documents involved and the period of time which has elapsed between the entry into the Section 173 agreement in 1995 and the present day. Secondly, says Mr Garde, the issues in the present proceeding deal crucially with issues of general law as to the degree to which doctrines such as repudiation and the like can be applied to Section 173 agreements; questions whether a successor with the original covenantor Fabcot Pty Ltd, should be entitled to be heard and contend that a repudiation has taken place and so on. Therefore, says Mr Garde, it would be particularly inappropriate in this case to consider a grant of discovery where the outcome of the matter depends on matters of genuine law and the true construction of the agreement which is of course found exhaustively within the text of the document registered under the Transfer of Land Act 1958.
8. There is an initial question therefore to consider whether I ought in the general sense, entertain a discovery application at all. The Tribunal has no particular powers or rules relative to discovery. Section 80(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides:

The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

1. I was referred by Mr Golvan QC to a determination of Judge Bowman in Maryvell Investments Pty Ltd v Sigma Constructions Pty Ltd [2006] VCAT 1599, [31] where His Honour noted the breadth of the power to give directions, observed that discovery is not specifically catered for in the Tribunal's statute or rules but stated that it is frequently given and given almost as a matter of course in many Lists such as the Domestic Building List. I might add also in two of the Lists over which I preside, namely the Retail Tenancies List and the Real Property List.
2. Mr Golvan said that whilst he accepted the general proposition that discovery was neither necessary nor appropriate in the typical proceeding in the Planning and Environment List the present proceeding raising the issue of repudiation was analogous to the inter parte litigation which one finds in the Lists which I have just referred to. Moreover he said, since a matter of repudiation turns crucially upon the detailed facts of a matter, discovery in a dispute such as this is peculiarly important. He referred to Koompahtoo council v Sandpipe Pty Ltd [2007] HCA 61; (2007) 233 CLR 115, 158 [77] where Kirby J said:

Most cases of this kind [that is cases where repudiation is alleged] turn upon detailed examination of the relevant facts.

1. Therefore, said Mr Golvan, this is an appropriate occasion in which to grant discovery. He said his client did not seek general discovery according to the famous Peruvian Guano tests, conceding implicitly that in the circumstances of this case, general discovery would be particularly onerous.
2. Mr Golvan referred to and relied upon the various headings in the application for orders which his client's solicitors had filed with the Tribunal. As I have said I am not going to read that document in whole but I will mention a few of the highlights. Paragraph (a) refers to the requirements and surrounding circumstances of planning permit BOR 9941 which was the permit on which the 1995 redevelopment was constructed and which included at Condition 40 a requirement that the Section 173 agreement with which we are here concerned, be entered into between the developer and the Council. Paragraph (b) refers to circumstances surrounding the entering into of the agreement. Paragraph (c) refers to an allegation in Council's statement of grounds, serving as its defence or points of defence, that the development, that is the redevelopment of the centre:

Was entirely separate from the parking requirements of Fabcot under Condition 15.

1. I should pause to note the basis upon which Sixty-Fifth Eternity Pty Ltd alleges repudiation. Clauses 9.2 and 9.3 of the Section 173 agreement on their terms appear to impose an obligation on Council to remove a Public Transport Corporation sub-station to enable centre car parking to be provided. Being acquainted with this area over a number of years, I can say that this is a long-standing structure erected apparently in days of yore by the Melbourne and Metropolitan Tramways Board.
2. Clause 9.3 says if the sub-station is not removed by Council before the practical completion of Stage 1 of the relevant development, Council will in due course provide car parking on that site thereafter. Implicitly it would seem the relationship between the two clauses is that if Council removed the sub-station before completion of Stage 1, Fabcot would meet the cost and provide the car parking but if Council did not meet that deadline then Council would provide the car parking. The sub-station still stands and a demand placed upon the Council by Sixty-Fifth Eternity last year that the station be removed fell on deaf ears or at any rate, did not produce the result that the station was removed.
3. Council observed that it does not own the land on which the station was erected, that it has been vested in an organisation colloquially known as VicTrak and is the subject of a lease to the Director of Public Transport and a sub-lease to a company called Metrolink.
4. Moving on, paragraph (d) of the proposed discovery headings refers to materials relative to the control of the sub-station at the time that the agreement was entered into.
5. Sub-paragraph (e) seeks documents illuminating the question whether the respondent has repudiated the agreement, taking into account a number of matters including whether the car parking provisions of Clauses 9.2 and 9.3 of the agreement were included to enhance the public realm of Camberwell Activity Centre.
6. Council's statement of grounds or defence raises a number of matters including contentions that Sixty-Fifth Eternity Pty Ltd is not entitled to enforce the terms of the agreement as a successor in title. Secondly it is said that the provisions of Clause 9.2 and 9.3 were not apt to create obligations enforceable even by the immediate counter party, Fabcot Pty Ltd and so on a number of matters relative to the general law and the particular rules relating to Section 173 agreement.
7. In my view there is strong force in the contentions put by Mr Garde that most of the matters which Council is relying upon are matters which turn upon the general principles of property and contract law and upon the simple construction of the written agreement. For instance it is contended that Clauses 9.2 and 9.3 are not essential terms of the contract hence, breach of them, if breach there be would not be apt to amount to a repudiation. Mr Garde says this is a matter of mere construction.
8. These are weighty considerations particularly in light of the fact that I accept Mr Garde's contention that having regard to the complex history of this particular piece of land and the developments which have occurred on it, discovery could easily become oppressive and expensive to a degree that would frustrate this Tribunal's general obligation to provide a speedy and at least comparatively with the Court system, inexpensive dispute resolution service.
9. Mr Golvan QC, however submits that there are matters which emerged from what he says is the factual matrix surrounding the making of the agreement. Whilst Mr Golvan did not mention this authority specifically, I assume that he was invoking the asset fixed position of these matters made by Sir Anthony Mason in his judgment in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352 where His Honour after a lengthy review of the authorities concluded that circumstances surrounding the making of a contract which were either specifically known to each of the parties or were so notorious as could be presumed to be known were properly to be considered relative to the true construction of the contract. His Honour added that matters which were entirely subjective to the parties, their hopes, their expectations, their statements except in so far as these were demonstrated to be matters that were shared between both sides, were to be excluded because as His Honour put it, these matters relate not to the contract that was made but to the contract that the one or the other of the parties hope would be made. The written document supersedes all those aspirations.
10. So amongst the various matter that have been urged are there any of them that rely specifically or clearly at least potentially, on a consideration of the factual matrix surrounding the making of this agreement? In my view, the issue as to whether one term or another term is an essential term, in itself is a matter of construction of the written document.
11. However, there are two other matters which are specifically mentioned in the Council's statement of grounds which I think potentially do depend significantly on the factual matrix and which incidentally may shed light on the question as to whether Clause 9.2 and 9.3 are essential terms. These are the contention put by Council that Clauses 9.2 and 9.3 are entirely separate from the parking requirements of Fabcot under Condition 15 of the planning permit and secondly, whether the provisions of Clauses 9.2 and 9.3 were included to enhance the public realm of the Camberwell Activity Centre and the core retail precinct and not so as to bestow any benefit on Fabcot and therefore not so as to create any obligation enforceable at the suit of Fabcot much less a successor in title to Fabcot.
12. These matters I think are potentially enlightened by a consideration of the factual matrix and a determination on the validity of these contentions I think crucially bears upon the question whether Fabcot had a right which it could enforce relative to Clause 9.2 and 9.3 and also whether Clauses 9.2 and 9.3 were in the circumstances to be regarded as essential terms of the contract.
13. I believe also that it is legitimate in the circumstances for Council to make discovery of the documents in its possession or power which are relevant to the issue as to the ownership or control of the sub-station at the time that Council entered into the agreement. Mr Garde said that these matters were principally or solely matters of the public record, that it could be consulted by for instance, a search of the Office of Titles; but the potential documents which may be relevant to this issue go beyond merely what could be obtained at the Office of Titles and of course what is in the Office of Titles and not in the possession of Council would not be discoverable by Council any way.
14. Mr Golvan rightly I think says one would be inclined to ask whether in executing a document that included Clauses 9.2 and 9.3 if Council had any and if so what arrangement with the Public Transport Corporation and so on. Just what Council contemplated with regard to these issues of ownership and control might conceivably be relevant to what I think both parties accept is a discretion of the element in the Tribunal's powers to grant relief under Section 184 of the Planning and Environment Act and therefore determine if so persuaded that Sixty-Fifth Eternity Pty Ltd either ceases to be bound at all by the Section 173 agreement or if bound by it, only in some modified form.
15. It seems to me therefore that it is right and proper that on these three issues Council should make discovery. On the other hand I do not think there is any good purpose to be served by an attempt to make discovery relative to matters that are matters of general law and matters of simple construction of a written instrument; no good purpose to be looking at the requirements and surrounding circumstances of planning permit BOR 9941. We know that if required the Section 173 agreement to be entered into. There would be a vast volume of documents I concede relative to the surrounding circumstances of that planning permit except in so far as those documents bear on issues such as whether these clauses were independent entirely of the parking requirement or included for the benefit of the public realm, I think it would be unnecessary and oppressive to require discovery on those matters.
16. Having regard to the lateness of the hour I do not propose to go through paragraph by paragraph the other matters in the application suffice to say that I am persuaded as to those that I have identified but not as to the others.

1. I have given my reasons for partially acceding to an application by the applicant that the respondent, Responsible Authority, should make discovery as to certain issues relative to a Section 173 agreement which is under attack as unenforceable by reason of repudiation. As a result of that ruling Mr Golvan QC on behalf of the applicant both in the proceeding and for the interlocutory relief seeks an order that the respondent, Responsible Authority, pay his client's costs of this application. He submits that whilst the application was far from completely successful, it was successful as to a majority of the matters contained within it, albeit, that the approach which I adopted was rather different in format from the way in which the headings were presented in the applications for order. He says that it is wrong to analyse this proceeding in the same way as the vast run of proceedings in the Planning and Environment List. It is he says a piece of inter partes litigation of the type which is conducted in Court, hence the same approach should be adopted in the Tribunal as in Court, namely that an order should be made in his client's favour.
2. Mr Golvan opposed any thought that the costs should be reserved. The consequence of that he submitted would be that they would simply fall into the abyss. The proper course was to rule upon this costs application while the matter is fresh in everyone's mind.
3. Mr Garde QC on behalf of the Responsible Authority opposes the making of any costs order against his client. He submits that at most the costs should be reserved, preferably it should be determined that there is no order as to costs. Even although the present proceeding he concedes raises some factual and general property law issues for consideration, ultimately the dispute arises in the context he says of a classic Planning and Environment List dispute where the applicant developer seeks to obtain a particular development approval and Council as Responsible Authority is either refusing the consent or permit altogether or refusing it on the terms sought by the developer, therefore all the considerations and all the practices of the Tribunal which regard these matters as matters where costs should lie where they fall are applicable. As a fall back position he submits that costs should be reserved.
4. Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 creates a general presumption that costs in the Tribunal lie where they fall. Sub-sections (2) and (3) of that section provide a wide discretion to quote the words of the statute 'where it is fair to do so', to order one party to pay all or any part of the costs of another party based upon a wide range of considerations. One of those specific considerations is the nature and complexity of the proceeding in which the costs application is made. Hence in larger matters of a commercial type, the Tribunal frequently awards costs as between party and party. It is this practice which Mr Golvan urges me to apply here.
5. With some hesitation and despite Mr Golvan's strictures against the perils of reserving costs, I believe that is the appropriate course to follow today. Certainly when one looks at the operation elements of this proceeding it does look very much like a commercial dispute; but on the other hand I think there is force in the contentions put by Mr Garde QC that this is part of a wider war which ultimately is about development permits. Just where the justice lies in this part of the wider war will I think be clearer in light of the outcome of the proceeding as a whole rather than by the concentration upon this particular element in this particular skirmish, hence the order I make is that the costs be reserved.