Australia: Summary judgment determined in P&E Court

Planning and Environment Alert: 12 Jan 2012
Last Updated: 14 January 2012
Article by Olivia Williamson

A summary judgment recently determined in the Planning and Environment Court is good news for respondents who may be subject to lengthy and costly legal proceedings initiated by a purchaser.

Late last year, the Planning and Environment Court delivered a summary judgment against the applicant in Stevenson Group Investments Pty Ltd v Nunn & Ors, in which HopgoodGanim represented a number of the respondents. The summary judgment application, along with a cross-application by the Stevenson Group for leave to amend its claim, were heard over two days in October 2011.

The case was factually and legally complex, and was not one that could be determined on a single legal point. This was a proceeding in which experts had been engaged by the parties and had prepared joint reports. As a result, HopgoodGanim's application for summary judgment was made on the basis that the applicant's version of the facts was to be accepted for the purpose of the proceeding.

Here, partner David Nicholls and associate Olivia Williamson outline the key findings in this novel case.

Key points

  • In Stevenson Group Investments Pty Ltd v Nunn & Ors, the Planning and Environment Court ordered that summary judgment be entered in favour of the respondents, and that the application by the applicant to amend pleadings be dismissed.
  • While mindful of the serious nature of deciding a matter by summary judgment, the Court determined it equally serious to allow a matter to proceed to trial, to the financial cost of all involved, if it can be properly determined by summary judgment. The Court was satisfied that the applicant had no real prospect of succeeding in its claim, and that there was no need for a trial of the application. Any trial would misuse the parties' resources and those of the Court.
  • Summary judgment is rare in the Planning and Environment Court, probably because in the past, there have been fewer originating applications for declaratory relief. However, there has been an increase in such proceedings in recent years, including resorting to expert evidence to establish the facts underlying applications, for example, in disputes about the height of buildings above ground level1. It is therefore significant that the Court is prepared award summary judgment under the Uniform Civil Procedure Rules.

Stevenson Group Investments v Nunn & Ors

In October last year, the Planning and Environment Court heard two applications together in a proceeding commenced by way of originating application. The case related to the Deep Blue 1 building located at the Tangalooma Wild Dolphin Resort on Moreton Island.

The first application was by the Tangalooma Respondents, which consisted of the private certifier and architects for Deep Blue 1, entities related to the Tangalooma Resort, two owners of units in Deep Blue 1 and a registered ground floor sub-lessee in Deep Blue 1. In that application, the Tangalooma Respondents, represented by HopgoodGanim, sought summary judgment in the originating application commenced by the applicant (the owner of six units in Deep Blue 1) on 3 July 2009, or in the alternative, strike out of the applicant's most recent amended statement of claim in whole or in part, with no leave to re-plead.

The Brisbane City Council supported the Tangalooma Respondents' application.

The second of the two applications was by the applicant, the Stevenson Group, seeking leave pursuant to rule 375 of the Uniform Civil Procedure Rules to amend its pleading.

The applicant's originating application

The originating application attacked the building approval for the construction of Deep Blue 1, and was commenced five years after the applicant purchased its first unit in the building. The relief sought by the applicant included a declaration that the building permit issued by the respondent private certifier for Deep Blue 1 was "void and of no legal effect". The relief also included a declaration that building work carried out (in other words, the construction of Deep Blue 1) constituted a development offence.

The proceeding had an unfortunate history. At the time of the hearing of the applications, there were 11 versions of the applicant's originating process on the record, which consisted of three versions of the originating application and eight versions of a statement of claim. After three attempts with the originating process, Robin QC DCJ found that it was desirable to order the applicant to file and serve a statement of claim complying with the rules of pleading instead of further amending the originating application.

The matter was also listed for a seven-day trial, but was adjourned on the first day of the hearing to allow the applicant to further amend its statement of claim to add evidence contained in a new fire safety expert's report, produced two days before the hearing.

The application for summary judgment

To comply with the principles of summary judgment, the two elements that needed to be satisfied were that the applicant had no real prospect of succeeding in its claim for a declaration that the building permit was "void and of no legal effect", and that there was no need for a trial.

The Tangalooma Respondents' application was made pursuant to rule 293 of the Uniform Civil Procedure Rules or in the inherent jurisdiction of the Court, and relied on four grounds:

  1. The building permit was not "void and of no legal effect" and the Tangalooma Respondents are entitled to rely on the building permit as valid and operative until such time as the permit is set aside by the Court.
  2. The applicant's pleading was not based on recognisable administrative law grounds of challenge and impermissibly challenged the merits of the certifier's decision to grant the building permit.
  3. Overwhelming, incontrovertible and objective discretionary factors mitigated against the applicant's prospects of success.
  4. The applicant was already a party to proceedings in QCAT in which it agitated some of the same material issues, and for the applicant to commence and pursue concurrent proceedings in different forums constituted an abuse of process.

Was the building permit "void and of no legal effect"?

Before considering the individual grounds that the Tangalooma Respondents relied on, His Honour Judge Searles set out a comprehensive analysis of the nature of administrative decisions and the concept of a "void" decision.

Ultimately, the Court could not find, either in the Integrated Planning Act or any other relevant legislation, any legislative intention that the consequences of the Tangalooma Respondents' non-compliance would necessarily involve jurisdictional error so as to make any decision based on that non-compliance void ab initio and of no legal effect. Although noting the importance of the Integrated Planning Act and building legislation in regulating development and building standards, the Court acknowledged that as a consequence of human involvement in any compliance procedure, there will be errors that result in non-compliance. Because of this, excusatory provisions exist so that, in appropriate circumstances, the Court is able to relieve a person of non-compliance.

The Court held that to discern the legislative intent argued by the applicant, there would need to be much clearer language in the Act, given the potential consequences of such an interpretation.

With the Tangalooma Respondents' first ground for summary judgment being made out, the Court considered it unnecessary to consider the remaining grounds of relief relied on by the Tangalooma Respondents.

Discretionary considerations

Although not strictly necessary, having found that the building permit for Deep Blue 1 was not void as claimed, His Honour also dealt with the arguments dealing with discretionary considerations that demonstrated that the applicant had no real prospect of succeeding in obtaining the declarations sought, and that there was no need for a trial.

The Court found that the discretionary considerations overwhelmingly favoured the Tangalooma Respondents, and mitigated strongly against granting any declaratory relief. The most influential of these factors were:

  • The building was constructed and occupied.
  • Any declaration was futile because of the lack of any utility.
  • The attitude of the Council, as guardian of the public interest on planning matters.
  • The attitude of the Queensland Fire and Rescue Service, as guardian of the public interest on fire safety matters.
  • The delay and convoluted manner in which the application was run, with consequent costs to all parties.

Because the discretionary considerations favoured the Tangalooma Respondents, the Court determined that even if the applicant was able to establish that the building permit was void, a court, in the exercise of its discretion, would not grant the declaration sought.


1 See, for example, Brutone Pty Ltd v Townsville City Council & Ors [2009] QPEC 143 and Cummings v Gold Coast City Council & Anor [2009] QPEC 60.

© HopgoodGanim Lawyers

Gold Employer of Choice - ALB magazine, April 2010
Finalist, Brisbane Law Firm of the Year, ALB Australasian Law Awards 2010

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