Application for summary judgment dismissed by Planning and Environment Court

The Planning and Environment Court has refused an application for a summary judgment in relation to an originating application made by the Council of the City of Gold Coast seeking declarations and consequential orders in respect of non-compliance with conditions of a development approval for a motor vehicle repair station over premises located in Ormeau.

In Council of the City of Gold Coast v Ashtrail Pty Ltd & Anor [2018] QPEC 29, the Council commenced enforcement proceedings in the Planning and Environment Court against Ashtrail Pty Ltd and Talranch Pty Ltd in relation to a motor vehicle repair station over premises located in Ormeau. The Council contended that Ashtrail Pty Ltd and Talranch Pty Ltd had failed to comply with a number of its conditions of approval relating to the payment of infrastructure contributions and provision of infrastructure works.

In response, Ashtrail Pty Ltd and Talranch Pty Ltd made an application for a summary judgment contending that:

• such an application was available under these proceedings;

• no conditions of approval had been breached as the development approval never started and had lapsed; and

• the Council was statute barred for claiming unpaid infrastructure contributions.

A respondent to a proceeding may at any time after filing a Notice of Intention to Defend apply to the Court for a summary judgment against the plaintiff. The Court will make an order for a summary judgment if it is satisfied:

• the plaintiff has no real prospect of succeeding on all or a part of the enforcement authority’s claim; and

• there is no need for a trial of the proceeding or part of the proceeding.

The Council opposed the application and contended that Ashtrail Pty Ltd and Talranch Pty Ltd had no real prospect of succeeding based on the evidence before it.

In applications for summary judgment, the discretion of the Court should only be exercised with great care and never in circumstances where there is a real question to be tried. Accordingly, proceedings should be determined summarily only in the clearest of cases. Further, an application for a summary judgment may only be made in a class of cases in which a respondent has filed a Notice of Intention to Defend.

In this case, the Court ultimately contended that the proceeding was not of a class which entitled Ashtrail Pty Ltd and Talranch Pty Ltd to make an application for a summary judgment.

Additionally, in the event that the Court was not correct in forming this view, the Court went further to say that based on the evidence before it, Ashtrail Pty Ltd and Talranch Pty Ltd had no real prospect of success based on the arguments contended in respect of the allegations of a breach of conditions of approval made by the Council.

Key takeaway

Summary judgment is only available in limited circumstances and respondents wishing to seek summary judgment in respect of proceedings in the Planning and Environment Court need to carefully consider whether such judgment is available in the circumstances of their case.

Authored by:
Stafford Hopewell, Partner
Elton Morais, Senior Associate