Xiang Rong Investment Pty Ltd v Ku-ring-gai Municipal Council

Land and Environment Court (NSW)|2012-03-12|Before: Biscoe J

Judgment 1In these three related Class 1 proceedings the applicant moves: (a)pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (UCPR) for review of a decision by the Registrar on 21 February 2012 refusing expedition; and (b)for orders that the proceedings be expedited. 2The three proceedings are: (a)an appeal against a deemed refusal of a modification application for changes to premises lodged on 7 December 2011. It seeks to rectify variations of the as - built form from the approved form; (b)as an alternative to (a), an appeal against the deemed refusal of a building certificate application lodged on 7 December 2011; and (c)an appeal against the actual refusal of a development application for strata subdivision of the existing residential building. The application was lodged on 27 September 2011 and refusal was notified by Notice of Determination dated 15 December 2011. 3Although the Registrar refused expedition, she fixed the proceedings for hearing on 16 and 17 April 2012. They were, I understand, the earliest hearing dates available at the time the Registrar allocated them. 4The Registrar's reasons for refusing expedition have not been published and I am unclear as to what they were.

THE APPLICANT'S FINANCIAL DIFFICULTIES 5The applicant seeks expedition because otherwise it is at a real risk of suffering severe financial difficulties. If it can obtain the favourable determination of its application early in April 2012, it calculates that it will be able to complete contracts for sale of units in the development in time to satisfy large debts to Westpac Banking Corporation which are payable on 30 April 2010, and also large debts to the Australian Taxation Office. 6The applicant borrowed moneys totalling about $10 million from Westpac repayable on 30 January 2012, which date was extended (in January 2012) to 30 April 2012. A Westpac letter states that the applicant will default if the loans are not paid by 30 April 2012 and that, should the applicant require an extension, it will need to provide by 31 March 2012 information regarding the status of these proceedings, confirmation of how the applicant will meet the increased interest and costs, and any impacts on the pre - sale contracts if construction is delayed or modified. 7The applicant has entered into contracts for sale in respect of 14 of the units in the development, for a total purchase price representing proceeds of $12,234,000, enough to meet its obligations to Westpac and more. 8Special clause 40.1 of the contracts for sale requires that the vendor obtain all necessary council approvals to the development consents and in respect of the Building and Strata Plan before completion. Special clause 35 states that the completion date is the later of: (a) 42 days after the date of the contract (which has expired); (b) 14 days after the vendor serves written notice on the purchaser that the strata plan has been registered; or (c) 14 days after the occupation certificate is served on the purchaser. 9In order to repay Westpac on 30 April 2012, the applicant says that it needs to complete the contracts for sale by that date and, to do so, it needs the approvals sought in these proceedings. If it can obtain a favourable determination of its appeals by early April, it calculates that would permit sufficient time to obtain registration of the strata plan, serve written notice on the purchasers, and complete 14 days thereafter in accordance with special clause 35 and before 30 April 2012. 10In addition: (a) the applicant owes the Australian Tax Office approximately $222,504; (b) a director of the applicant, Mr Andrew Tsang, owes the Australian Tax Office $275,252; and (c) Mr Tsang is a director and shareholder of another company which owes the Australian Tax Office $186,551. Interest is accruing and penalties apply on all these tax liabilities. The directors and shareholders of the applicant and the other company are the same and they intend to use some of the money from the sale of the units to pay off the tax debts.

PRINCIPLES ON REVIEW OF A REGISTRAR'S DECISION 11UCPR r 49.19 provides: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 12In Tomko v Palasty (No 2) [2007] NSWCA 369, 71 NSWLR 61 at [8] - [10] Hodgson JA said: 8. In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. 9 In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing. 10 In my opinion, this approach is consistent with the position that such reviews are not appeals and involve the exercise of discretion by the reviewing body; and with the policy considerations referred to by Jordan CJ in In the Will of Gilbert (1946) 46 SR (NSW) 318 at 323; 63 WN (NSW) 176 at 179. It is also consistent with the general principles concerning interlocutory applications: they do not finally decide matters, and successive applications can be brought for the same orders; but generally, a later application for orders that have previously been refused will be summarily dismissed unless a change of circumstances is shown or there is evidence satisfying the strict requirements for fresh evidence. 13The principles in Tomko were applied in Groeneveld v Wollongong City Council [2009] NSWLEC 149, 168 LGERA 260 at [11] - [13] by Preston CJ. The applicant also refers to Sky Design and Concepts Pty Limited v Pittwater Council (No.4) [2009] NSWLEC 129 at [38] where Sheahan J said of such a review: It is not necessary for the applicant for review to prove an error of law; there could be changed circumstances or fresh evidence, and there could be an argument resting on the " interests of justice in the circumstances of the case ". The court must be satisfied on review that the order (or direction etc.) challenged was " reasonable ".

PRINCIPLES OF EXPEDITION 14The Court might order expedition where a party may lose its livelihood, business or home or suffer irreparable loss or extraordinary hardship: Elders Rural Finance Ltd v Smith (1995) 38 NSWLR 395 at 401; Hannaford v Cactus Imaging Pty Ltd [2008] NSWCA 260, 176 IR 426 at [12] - [13]. Relevant factors to take into account include that there are large sums of money involved and whether the chances of the applicant's success in the litigation cannot be put any higher than speculative: Vaughan v Dawson [2005] NSWSC 33 at [8] citing Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33 at 42 - 43. See also the consideration of expedition principles by Pepper J in Wren Investments Pty Ltd v Hunter [2011] NSWLEC 122 at [38] - [43] and Healthscope Ltd v Minister for Planning and Infrastructure (No 2) [2011] NSWLEC 237 .

SUBMISSIONS 15The applicant submits that the Registrar's decision refusing expedition should be reviewed because it was not reasonable in light of the facts and the expedition principles. 16The applicant submits that expedition ought to be granted because: (a)the applicant has not delayed the litigation; (b)the applicant will suffer financial hardship if the proceedings are delayed due to risk of defaulting on substantial loans, the collapse of pre - sale contracts, and the risk of defaulting on debts owed to the Australian Tax Office; (c)there are large sums of money involved, including loan facilities totalling almost $10 million due to be repaid on 30 April 2012; (d)the applicant will suffer irreparable loss or hardship if the proceedings are not expedited to be heard and determined by or shortly after the end of March 2012; (e)the chance of the applicant succeeding cannot be described as not high; and (f)the applicant offers to do everything required to accommodate an expedited hearing date including by filing and serving plans to address matters raised by the respondent by 13 March 2012. 17The respondent council submits that the Registrar's decision should not be reviewed because: (a)in the case of a decision on practice or procedure, a review will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstance, or evidence satisfying the strict requirements for fresh evidence: see [ 12 ] above; and (b)there is insufficient new material now before the Court to show that the Registrar's decision miscarried. 18The respondent submits that, in any case, expedition should not be granted because: (a)the evidence of financial hardship does not rise to a level where it can be said that the development project will fall over; (b)there was unnecessary delay by the applicant in commencing the proceedings and in not expediting the hearing of these motions for review of the Registrar's decision; (c)the requirements in the Westpac letter (see [ 6 ] above) do not appear to be particularly onerous; and (d)there is no evidence of any attempt by the applicant to obtain an extension of time for repayment from Westpac.

DECISION 19If this case concerned a decision on practice and procedure and no more, a difficulty in determining whether to review the Registrar's decision in accordance with the Tomko principles referred to at [ 12 ] above is that her reasons for decision have not been published and I do not know what they were. However, the Registrar's decision is likely to have a decisive impact in the sense that the decision to refuse expedition and allocate hearing dates on 18 and 19 April means that the applicant will default on the Westpac loan unless it can obtain an extension of time from Westpac. Therefore it is a case where I am more willing to intervene. It was ascertained during the course of the hearing before me that dates for a hearing of the appeals on 28 and 29 March 2012 are now available and suitable to the parties. They were not available, as I understand it, when the matter was before the Registrar. Thus, importantly, it is no longer necessary to contemplate displacing hearing dates fixed for other cases in order to accommodate hearing dates for this case within the time - frame the applicant seeks. There is also some new evidence that was not before the Registrar, comprising the sale contracts and an affidavit attaching the Westpac letter. 20The allocation of the available dates of 28 and 29 March 2012 to this matter would bring forward the dates allocated by the Registrar by only a little over two weeks. But that is enough to give the applicant a prospect, which at the moment is absent, of obtaining a determination within a time which will enable it to serve notices on the purchasers in order to obtain completion and thus repay the Westpac loans by the repayment date of 30 April 2012. 21There is weight in the respondent's submissions and they would have carried the day had it been necessary to contemplate displacing litigants in other cases from the hearing dates allocated to them. In particular, if the applicant had appealed the council's refusals more quickly it most likely would have obtained timely hearing dates without difficulty; and if it had sought to expedite the hearing of its motions to review the Registrar's decision, it would have maximised the prospect of its appeals being determined within the time frame it needs. But the availability, ascertained during the hearing before me, of two suitable hearing dates in late March avoids having to contemplate vacating hearing dates allocated to other cases. There then probably would have been just enough to favour a review of the Registrar's decision and to grant expedition to the limited extent of obtaining those available dates. However, the preferable course is simply to change the hearing dates to 28 and 29 March 2012, dismiss the notices of motion with costs, and make pre - hearing directions. 22The orders of the Court, which I made at the conclusion of the hearing, and as proposed by the parties in response to my conclusion, are as follows:

Applicant to file and serve architectural and landscape plans (A1 size) addressing the matters in paragraphs 8 to 22 and 28 to 31 of the affidavit of Ms Munn dated 8 March 2012 by 4.00 pm on 13 March 2012.
Directions made on 28 February 2012 are varied as follows: (a) Para 1 modified to read "by 14 March 2012", (b) Para 2 deleted, (c) Para 3 modified to read "by 21 March 2012", (d) Para 13 modified to read "by 26 March 2012", (e) Para 14 modified to read "by 26 March 2012", and (f) Para 16 modified to read "by 27 March 2012".
The appeals are listed for hearing on 28 and 29 March 2012.
All the notices of motion filed on 24 February 2012 are dismissed.
The applicant is to pay the respondent's costs of those motions.
The exhibit may be returned.
Liberty to apply on one day's notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2012

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