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(Rackemann DCJ - 11 February 2015)
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Environment and Planning – application – where the Co-Respondents by election seek extension of time within which to file the notices of election – whether sufficient grounds – where the interests of justice lie – whether discretion ought be exercised

Facts: This matter concerned a number of applications brought by the proponent (Appellant) to strike out notices of election filed out of time by the sixth, seventh and male fourth Co-Respondents by election (Co-Respondents).

The Co-Respondents had cross-applied for an extension of time within which to file their respective notices seeking the court's discretion to grant the extension pursuant to section 497 of the Sustainable Planning Act 2009 (SPA) on the basis that there were sufficient grounds to grant the extension.

The facts involved an appeal filed by the Appellant against the Respondent's decision to refuse a development application in relation to a proposed 6 unit residential development on land located at 9 Griffith Street, New Farm. The Appellant filed a notice of appeal against the Respondent's refusal.

A number of Co-Respondents had elected to join the appeal. There was no dispute that the other Co-Respondents (first, second and third) duly elected to become parties to the appeal, and that the fifth and female fourth Co-Respondents had no right to elect to become parties to the appeal and had filed notices of withdrawal.

The Co-Respondents all owned units in an adjoining unit complex known as 'Solitaire' located at 5 Griffith Street, New Farm (Adjoining Complex).

There was a dispute as to the last day to file a notice of election to become a Co-Respondent with the Appellant alleging the 17 November whilst the Co-Respondents alleged it to be 18 November.

During the course of the hearing, evidence was led by the Co-Respondents as to the grounds which they relied on in support of the granting of the extension as described below:

  1. Fourth Co-Respondents – The Fourth Co-Respondents owned unit 1 in the Adjoining Complex but did not reside at that unit. In making their original submission to the Respondent against the development, the Fourth Co-Respondents mistakenly used the address at the Adjoining Complex as their address.

  2. At the time that notice of appeal was served, the Fourth Co-Respondents were on vacation and their unit at the Adjoining Complex was not tenanted and as such they did not become aware of the appeal until information was passed on to them by another unit owner in the Adjoining Complex. Upon becoming aware of the appeal, the Fourth Co-Respondents instructed their solicitors to file a notice of election which occurred on 20 November 2014.

  3. Sixth Co-Respondent – The Sixth Co-Respondent also owned a unit in the Adjoining Complex and had been overseas for 1 month and subsequently out of Brisbane for another month during the time the notice of appeal had been served and the date that the notice of election should have been filed.

  4. Whilst on vacation, the Sixth Co-Respondent had arranged for her mail to be collected and sent to her accountant. The instructions to the accountant were to open any mail which appeared to contain accounts which might have required payment. The notice of appeal had not been opened until her return on 20 November 2015 at which time she instructed her solicitors to file a notice of election which occurred on 21 November 2014.

  5. Seventh Co-Respondents – The Seventh Co-Respondents resided in the Adjoining Complex but the unit was owned by a company as trustee of a discretionary trust. They had mistakenly filed a notice of election in the name of the trustee company (which thus became the Fifth Co-Respondent) on 20 November 2014 instead of in their own names as the persons who made the submission against the development application.

The Seventh Co-Respondents were also on vacation during the period in which the notice of appeal should have been filed but did return prior to the expiry of the election period. Upon becoming aware that the notice of election was in the wrong name, a new notice of election was filed on 3 December 2014.

Decision: The Court held, in dismissing the strike out application and allowing an extension of time but ordering costs that:

  1. On balance, there were sufficient grounds for granting the extensions sought and it was in the interests of justice to grant the relief.
  2. The notices of election of the Fourth and Sixth Co-Respondents by election were filed very soon after the expiration of the time limit. The notice of election of the Seventh Co-Respondents had been filed out of time, but they had caused an earlier notice of election (in the name of the wrong entity) to be filed very shortly after the expiration of the time limit.
  3. The delay in filing the notices was not lengthy and the appeal had not proceeded in any significant way.
  4. The consequence for the Appellant was not that it would have faced a proceeding which might have been otherwise avoided, but that it would have had to contend with some additional parties in prosecuting its appeal.
  5. The Appellant should be compensated for the costs it had incurred in bringing the applications by reason of the non-compliance by the relevant co-respondents by election with the time limit.
  6. The explanation that the delays in filing the notices of election were in each case blamed on people being on vacation was not supported.