Cameron, Girle, Herron, Cohen & Watson v Council of the Shire of Noosa [1995] QSC 19

IN THE SUPREME COURT OF QUEENSLAND No. 1157 of 1993 Brisbane Before the Hon. Justice Williams [Cameron & Ors v. Council of the Shire of Noosa] BETWEEN: IAN MILNE DIXON CAMERON HARLEY ROSNELL GIRLE JAN MARIE HERRON KAY THERESE COHEN and ELEANOR ARMSTRONG WATSON (Plaintiffs) AND: COUNCIL OF THE SHIRE OF NOOSA (Defendant) JUDGMENT - G N WILLIAMS J Judgment delivered 02/03/1995 CATCHWORDSPRACTICE - consent order of Local Government Court made order of this Court - terms not carried out for 5 years - changes to relevant Town Plan - relief granted to defendant pursuant to O. 45 r. 1 - order stayed Counsel: Heyworth-Smith for plaintiffs Harrison QC for defendant Solicitors: Lawson Jones and Fulton t/a for David Grant and Associates for plaintiffs Nicol Robinson & Kidd t/a for Wakefield Sykes for defendant Hearing date: 21 - 22 November 1994 -- 1 of 24 -- IN THE SUPREME COURT OF QUEENSLAND No. 1157 of 1993 BETWEEN: IAN MILNE DIXON CAMERON HARLEY ROSNELL GIRLE JAN MARIE HERRON KAY THERESE COHEN and ELEANOR ARMSTRONG WATSON (Plaintiffs) AND: COUNCIL OF THE SHIRE OF NOOSA (Defendant) JUDGMENT - G N WILLIAMS J Judgment delivered 02/03/1995 After events, some of which will hereinafter be set out, the Local Government Court on 10 November 1989, on an appeal by the present plaintiffs, made the following consent order: "1. That the appeal be allowed. 2. That subject to the appellants entering into a re-zoning deed incorporating the agreed conditions annexed hereto and marked with the letter "A", the Respondent is ordered to make application to the Minister for Local Government for the Amendment of the Town Planning Scheme by excluding the subject land from the Rural Reservation and Open Space Zones and including such land in the Special Facilities Zone, with the following particular purposes indicated by blue lettering on the Scheme Maps:- Tourist Resort as per Plan of Development No. 8816/3/F dated 11 October, 1989 identified by the signature of the Shire Clerk of the Respondent and in accordance with the said rezoning deed dated . . . " The attached conditions occupy some 29 pages but fortunately it is not necessary to refer in detail to most of them. The following conditions are of particular importance for present purposes: -- 2 of 24 -- 2 "1.03 Four (4) A1 size coloured copies of the Plan of Development, twenty (20) A3 size colour photographs of the Plan of Development and twenty (20) A3 size copies of the Development Parameters are to be submitted to the Respondent for gazettal purposes and incorporation in the Rezoning Deed. . . . 1.12 The Appellant shall prior to gazettal of the rezoning - 1) At its sole cost make application to the Respondent for and complete the amalgamation of the site; 2) At its sole cost surrender to the Crown the land shown as Public Open Space Precinct and dedicate the area shown as New Road Precinct on the Plan of Development; 3) At its sole cost transfer road truncations 1 and 2 shown on the Plan of Development to the Respondent in fee simple Provided That the Respondent shall transfer back such lands to the Appellant or the successors entitled to the Appellant should the Respondent determine that it is able to relocate external roads in such an manner as to make the road truncations obsolete or should the Respondent decide that such truncations are not necessary. The relevant stamped and executed transfer documents and Title Deeds to give effect to (2) and (3) above shall be delivered to the Respondent's solicitor prior to application being made by the Respondent to the Governor-in- Council for gazettal of the rezoning and shall be held in escrow by the Respondent's solicitor until such gazettal is effected failing which such transfer documents and Title Deeds shall be returned to the Appellants. . . . 1.14 The Appellant shall submit survey information to the Respondent, prior to the Respondent applying to the Minister to rezone, verifying that the western boundary of the Beach Protection Precinct is not less than 150 metres from the toe of the seaward dune, such boundary to be amended as is necessary to ensure such minimum distance is provided to meet with the Beach Protection Authority requirements. -- 3 of 24 -- 3 . . . 14.01 Prior to the application being forwarded to the Minister, and after submission by the Appellant of the plans and further studies, (if any), required by these conditions to be completed prior to rezoning, the Appellant . . . shall enter into a rezoning deed with Council recording the conditions of this approval. The deed shall be binding on the heirs, assigns, successors in title and other persons or corporations claiming through or under the Appellant . . . The deed shall be prepared by the Respondent's solicitor. All the Respondent's costs of and incidental to the preparation, execution and stamping of the rezoning deed (including the Respondent's Solicitor client costs) including any variation, addition or amendment, and all stamp duty shall be paid by the Appellant." Clause 15.01 required the appellant to submit a cash bond or bank guarantee in the sum of $100,000 "prior to the application being forwarded to the Minister for gazettal". For reasons which will have to be explored in some detail no rezoning deed has been executed, and the defendant (respondent in the Local Government Court) has not in consequence made application to the Minister for the relevant rezoning. The order of the Local Government Court of 10 November 1989 was registered in this Court on 12 November 1993 pursuant to Rule 24 of the Local Government Court Rules; a consequence of that is that the order may be enforced as a judgment or order of this Court. By this action (commenced on 29 July 1993) the plaintiffs seek a declaration that the order of 10 November 1989 "remains in full force and effect" and a consequential order that the defendant "settle the said rezoning deed and present the same to the plaintiffs for signature". The defendant contends that -- 4 of 24 -- 4 for reasons which will be considered later the order of 10 November 1989 is no longer enforceable at the instance of the plaintiffs. If the order was otherwise still of full force and effect the defendant, by way of counter-claim, seeks an order pursuant to O. 45 r. 1 which effectively would mean that the order of the Local Government Court had no further effect. Before considering the merits of the application and cross-application it is necessary to refer in some more detail to relevant facts. The land in question is situated north of the Noosa River, and is generally in that area known as the Great Sandy Region. The eastern boundary is the foreshore of the Pacific Ocean. The total area of land in question is comprised of a number of lots which are variously owned by the persons named as plaintiffs. The registered proprietors have a common interest with respect to the development proposals for the land in question. On 21 April 1988 the plaintiffs made application to the defendant under the provisions of s. 33(6A) of The Local Government Act 1936 seeking to have the subject land rezoned from Rural Preservation and Open Space Zones to the Special Facilities Zone under the defendant's Town Plan which would permit development as a Tourist resort. About this time other land in the immediate vicinity of the plaintiffs' land was the subject of similar development applications. After some Court determinations had been made with respect to the other lands the plaintiffs pushed ahead with their application. At a -- 5 of 24 -- 5 meeting of the defendant on 24 November 1988 it was resolved that the plaintiffs' application be approved subject to certain conditions. The plaintiffs were dissatisfied with certain of those conditions and thereupon lodged the appeal which resulted in the order referred to above. During 1989 there were extensive negotiations between the parties with respect to the conditions upon which the defendant was prepared to allow the plaintiffs' development proposals to proceed. During that period there were some changes to the relevant Town Planning Bylaw, and in consequence a greater emphasis was placed on environmental issues insofar as development in the region was concerned. Development in the subject area was to be regulated by a Development Control Plan. Negotiations between the parties intensified towards the end of 1989 and resulted in the agreement being reached which is reflected in the order of 10 November 1989. On 14 November 1989 the solicitor for the defendant wrote to the plaintiffs advising that he was "attending to the preparation of the rezoning deed and will forward same to you shortly". On or about 29 November 1989 the plaintiffs entered into discussions with the Beach Protection Authority with a view to resolving the matters referred to in cl. 1.14 of the conditions annexed to the Court order. Those discussions were concentrated upon defining the eastern boundary of permissible development of the subject land. Also in November the plaintiffs commenced discussions with the Land Administration -- 6 of 24 -- 6 Commission with respect to the road truncations referred to in condition 1.12. Those negotiations, at least to some extent, involved the plaintiffs in seeking a variation from what was set out in the conditions annexed to the Court order. As the letter from the solicitors for the plaintiffs of 3 January 1990 makes clear the plaintiffs were then seeking to persuade the defendant that it should apply to the Minister for rezoning on terms and conditions different from those set out in the Court order. The defendant indicated at least some willingness to participate in discussions along those lines. During this period, and in particular around early February 1990, the defendant was calling for public reaction to proposed amendments to its Town Planning Scheme, and the plaintiffs submitted a number of plans to the Beach Protection Authority under cover of a letter dated 20 February 1990. Mention has already been made of condition 1.12 of the conditions forming part of the Court order. By letter to the defendant of 21 February 1990 the solicitors for the plaintiffs sought to have that condition amended. An alternative condition was proposed. In or about March 1990 Mr G E Fitzgerald was appointed Commissioner to conduct a Commission of Inquiry into the conservation management of, inter alia, the Great Sandy Region, which included the subject land. At a meeting of the defendant on 22 March 1990 some modification to the boundaries of the subject land was agreed upon, on certain conditions. Then came the letter of 23 April -- 7 of 24 -- 7 1990 from the solicitors for the plaintiffs to the solicitor for the defendant; the relevant parts thereof read as follows: "We refer to . . . clause 1.12(1) of the order of . . . 10 November 1989. The subject clause places upon our clients the obligation to make application and complete the amalgamation of the site prior to gazettal proceeding. This requirement to amalgamate prior to gazettal causes our clients considerable concern including stamp duty and possible taxation consequences and at a time when significant planning considerations remain outstanding and the costs of finalising same are already high. We are instructed to submit to you the following, which in essence is designed to obtain Council's agreement to amend clause 1.12(1) so that amalgamation of the site is not required until development notice approval is obtained. . . . Our clients further submit that the structure of ownership of the whole of the lands cannot be conveniently nor commercially finalised between them at this stage. Any amalgamation is a requirement of Council prior to development proceeding, could result in the ultimate land holding as between the various owners being confused. The costs both from a stamp duty and possible taxation point of view may be considerable and wasted in the circumstances. . . . The matter of the required amalgamation is causing our clients considerable concern and is presently delaying finalisation of the rezoning deed and therefore gazettal. Our early consideration with Council of these advices would be appreciated. . . ." As the letter from the Council of 1 May 1990 indicates, the defendant was prepared to negotiate with respect to some conditions, but was not prepared to "modify the terms of approval in relation to the requirement for amalgamation of the -- 8 of 24 -- 8 resort area". Against the background of what had transpired by the end of May 1990, the defendant's solicitor wrote to the solicitors for the plaintiffs on 31 May 1990 indicating he would be "obliged to receive your advices if the Appellants intend to enter into a rezoning agreement in the terms of the Order made." There appears to have been no response at all to that letter. Under cover of a letter dated 22 June 1990 the Beach Protection Authority indicated a seaward boundary of the proposed development which would be acceptable to it. By August 1990 the plaintiffs were still concerned as to the consequences of the condition, agreed to by consent, relating to the amalgamation of the parcels of land. Their concern was taken to the extent that they contacted directly the Minister for Local Government (Honourable T Burns MLA) and he wrote to the Council on 6 August 1990 informing the defendant of the approaches made to him. Further, by letter of 4 October 1990 the solicitors for the plaintiffs were again seeking to convince the defendant that it ought make the appropriate application to the Minister on terms more favourable to the plaintiffs than were contained in the consent order. The material indicates the Minister may have had no objection to the amendment to amalgamation proposed by the plaintiffs. Negotiations between the plaintiffs and the Beach Protection Authority continued in October 1990 with the submission to the Authority of a plan proposed by the -- 9 of 24 -- 9 plaintiffs in the light of communications received from the Authority. Then came a letter from the defendant's solicitor to the solicitors for the plaintiffs of 17 October 1990 which is of some importance: "I refer to the Order of His Honour Judge Row, made on 10 November 1989. I also refer to my letters to you of 31 May and 20 June 1990 seeking your clients' intentions with respect to entering into a Rezoning Deed as required by the said Order to which you have not replied. From a planning point of view it is unsatisfactory for this matter to remain unresolved and I hold instructions from the Council to see that it is finalised without further delay. Accordingly, you are requested to confirm if your client is prepared to execute a Rezoning Agreement and carry out the amalgamation of the site and other matters preparatory to gazettal as required by the terms of the Order. In the event that your client does wish to proceed I would be pleased to receive your cheque for $330.00 in payment of the Council's anticipated costs of preparation of the Deed. Unless I receive confirmation in the above terms within fourteen (14) days from the date hereof, I am instructed that the Council will refer the matter to the Minister to deal with as he sees fit." There was then a change of solicitors for the plaintiffs, and their new solicitors replied by letter dated 30 October 1990. That letter referred to the amendments to the rezoning deed proposed by the plaintiffs and requested that those matters be referred to Council. There was a further letter from the new solicitors for the plaintiffs dated 7 November 1990 which again reiterated the plaintiffs' concern as to the need to effect amalgamation prior to gazettal of the rezoning. It was said that such a condition was "unreasonable". Other -- 10 of 24 -- 10 changes to the agreed conditions forming part of the consent order of November 1989 were raised. The matter was on the agenda for the meeting of the defendant on 8 November 1990 and the following resolution was adopted: "That by reason of the appellants' failure to comply with the demands of the Court Order, Council elects to treat the matter as at an end and the Minister and appellants be so informed." Following that the defendant's solicitors wrote to the solicitors for the plaintiffs on 11 November 1990 informing them that the defendant "regards its obligations in this matter as being at an end". In a letter dated 22 November 1990 the solicitors for the plaintiffs categorically stated that the plaintiffs were "not prepared to abandon their rights", but the letter still speaks in terms of the plaintiffs seeking variations of the conditions contained in the consent order. It also should be recorded that on 11 November the Shire Clerk wrote to the Minister informing him that in consequence of "the appellants' failure to comply with the terms of the court order the Council does not intend to apply to you to have the land rezoned". The solicitors for the plaintiffs wrote to the Minister on 23 November 1990 requesting him to refrain from determining any application with respect to the subject land "until the parties have either reached agreement or been before the Local Government Court to resolve any issues". Other documents placed before the Court make it clear that by January 1991 the plaintiffs still had not resolved with the -- 11 of 24 -- 11 Beach Protection Authority the seaward survey line, and were still seeking to have the conditions varied so that they were not obliged to amalgamate title before executing the rezoning deed. Early in 1991 the plaintiffs made an application to the Local Government Court to have the order of November 1989 varied in certain respects. The defendant did not consent to the variations sought, and Row DCJ held on 20 March 1991 that he did not have jurisdiction to accede to the application of the plaintiffs. The plaintiff Cameron wrote to the Council in April 1991 indicating preparedness on his part to sign a rezoning deed. He enclosed a cheque for $330.00 being the amount referred to in the earlier letter of 17 October 1990 from the defendant's solicitors. The solicitors for the defendant sought by letter of 18 April 1991 to ascertain whether the other plaintiffs were also ready to execute such a deed. There appears to have been no response to that request. The consulting surveyors for the plaintiffs wrote to the Council on 26 April 1991 indicating that the plaintiffs were now prepared to accept the amalgamation of the lands in question and putting forward other proposals for acceptance by the defendant. By this time there had been significant changes to the relevant Town Plan. A new Town Plan for the Noosa Shire was published in the Gazette of 15 December 1990. Amongst other things there was now a policy which required the submission of an Environmental Impact Statement with respect to proposals of the type the subject of the consent order. Much of this was -- 12 of 24 -- 12 affected by the Inquiry into the Great Sandy Region and issues related to World Heritage listing. By July 1991 the defendant was speaking in terms of compulsorily acquiring land on the North Shore, including the subject land. The Council wrote to Cameron, one of the plaintiffs, on 15 July 1991 in the following terms: "I confirm my instructions that because of the failure of the Appellants to comply with the terms of the Order of the Local Government Court made on 10 November 1989, the Council considers its obligations in dealing the matter to be at an end. As I indicated to you in discussions earlier this year when you sought to vary the terms of the Consent Order, in the event that all the Appellants were prepared to sign the Rezoning Agreement, the Council would no doubt further consider its position. However, it will first be necessary to have clear evidence from all Appellants that they were prepared to enter into the Deed. As I have received no further response to my letter of 18 April 1991, I am unable to take the matter further. Accordingly I enclose herewith the Council's cheque for $330.00 by way of refund of the amount previously forwarded by you for preparation of the Deed." The plaintiffs took the matter back to the Planning and Environment Court early in October 1991, contending inter alia that the defendant was in contempt of Court in acting as it had done with respect to the earlier consent order. For reasons published 29 January 1992 the Court dismissed the applications made by the plaintiffs. In correspondence and in an affidavit used in those proceedings the defendant indicated that if the plaintiffs "now indicate that they wish to proceed with the rezoning and are prepared to sign the rezoning agreement required by the Order" the defendant would "further consider -- 13 of 24 -- 13 its position". It should also be noted that in November 1991 the defendant decided not to proceed with any acquisition of the subject lands. At a meeting on 26 November 1991 the defendant confirmed its earlier decisions of 8 November 1990. Given all that had occurred by November 1991, including all the investigations and reports into the Great Sandy Region, the Council resolved that any development of the lands should be reviewed in the light of the recommendations of those reports. On 6 February 1992 the defendant adopted the North Shore Development Control Plan. I do not find it necessary to set out in detail the conduct of the defendant after 6 February 1992 with respect to the Noosa North Short Development Control Plan. As is indicated by a perusal of the bundle of agreed documents there were numerous Council resolutions passed in 1992 on that topic. Suffice it to say that in 1992, and in 1993 prior to the commencement of this action, extensive consideration was given to various reports and documents relating to the future development in and about the area in question. The final paragraph of the Statement of Agreed Facts is in these terms: "The proposed amendments to the Strategic Plan, to the North Shore Development Control Plan and to the Town Plan the subject of the defendant's resolutions of 27 February 1992 have not been gazetted yet, as the Minister is holding them in abeyance pending conclusion of certain proceedings under the Judicial Review Act 1991 brought by the owner of certain land adjacent to the subject land. The Noosa North Shore Development Control Plan is awaiting gazettal." It is in those circumstances that these proceedings were -- 14 of 24 -- 14 brought. I would also record that there was no challenge to the affidavit of the architect for the plaintiffs, G Pie, as to steps he took in November 1989 to comply with condition 1.03. I am satisfied that in November 1989 there was compliance, so far as was then possible, with the requirements thereof. I express my finding in that way because it is unclear to me, even after hearing argument, whether further amended documentation would have been required once the eastern boundary of the development was fixed after discussions with the Beach Protection Authority. There is nothing to suggest that any documents, other than those delivered by Pie in November 1989, have been submitted to the Council in purported compliance with the obligations on the plaintiffs emanating from cll. 1.03 and 14.01. By 22 January 1991 the Beach Protection Authority had determined that the erosion prone area in the vicinity of Halls Knob should be "150 metres or to bedrock". That seems to have been the final determination of the Authority but of course the plan for the area to be developed would have to be drawn showing that boundary line. Bedrock would have to be determined before that plan was finally prepared. I have not been able to identify in the material placed before me a plan submitted to the defendant after February 1991 defining the boundary as finally agreed with the Beach Protection Authority. Of more importance, in my view, is the fact that -- 15 of 24 -- 15 amalgamation of the subject lots has not yet been perfected. Given all of the conditions forming part of the Order of 10 November 1989 it is difficult to see how a rezoning deed could be executed before that is done. Counsel for the plaintiffs stressed that condition 1.12 was predicated on the proposition that the matters therein referred to should be attended to "prior to gazettal of the rezoning". That is undoubtedly so; the condition says just that. But one must also have regard to condition 14.01. It provides that the rezoning deed shall be entered into "after submission by the Appellant of the plans and further studies, (if any), required by these conditions to be completed prior to rezoning". The reason for so providing is obvious. Until the eastern boundary was fixed after negotiation with the Beach Protection Authority pursuant to cl. 1.14, and until amalgamation of the site had been completed as required by cl. 1.12, and until the other requirements of cl. 1.12 had been fully completed, it would not be possible to have a final plan of the development which could be incorporated into the rezoning deed. For that reason, cl. 14.01 logically required those steps to be completed prior to the rezoning deed being executed. It therefore seems to me that on the evidence the plaintiffs have not established that they have satisfied the conditions precedent to the defendant being required by cl. 14.01 to enter into the rezoning deed. That finding is sufficient to dispose of the plaintiffs' claim for an order directing the defendant to settle a rezoning deed and submit it -- 16 of 24 -- 16 to the plaintiffs for signature. But other points were argued and should be considered. The determination by the Local Government Court on 10 November 1989 was made pursuant to s. 33(7) of the Local Government Act 1936-1988. Relevantly that subsection provided: "If the Court allows the appeal, it shall order the local authority to make application to the Minister for such amendment of the Scheme as would, if made, effect the application. . . . The local authority shall, within the time specified in the order of the Court, commence to take and do the steps and things prescribed by this section to be done and taken by it in respect of such application." Notwithstanding the reference therein to the order specifying a time within which steps were to be taken, this order did not contain any reference to time. Counsel for the plaintiffs contended that in those circumstances there was no time limit at all and the order could be enforced after a lapse of any amount of time. On the other hand counsel for the defendant argued that the Court ought to infer an obligation to take the steps within a reasonable time. Although this was a consent order there are real difficulties in concluding that such a requirement should be implied in the order. Particularly now that the order has been registered as an order of this Court I have grave doubts as to the correctness of the proposition that both sides were obligated to enter into the rezoning deed within a reasonable time after the order was made. In my experience where an order of this Court fails to specify the time within which some action is to be taken (for example, as required by O. 44 r. 4) a reasonable time is not implied, and before the order can be enforced a formal -- 17 of 24 -- 17 application must be made to have the original judgment varied or amended pursuant to the slip-rule. I am not persuaded that a reasonable time should now be regarded as always having applied with respect to the obligations on the parties to enter into a rezoning deed. I would note in passing that no reference was made in the course of argument to O. 47 r. 2 and in consequence I have not given any detailed consideration to the possible relevance of it here; but it is an illustration of a situation in which an order of a superior court ceases to have effect (cf. Talbot v. Blindell (1908) 2 K.B. 114). As noted above the defendant sought to rely on O. 45 r. 1, a rule unique to Queensland. It is in these terms: "When facts arise after the giving of a judgment or making of an order which entitle the person against whom the judgment or order is given or made to be relieved from it, or when facts are discovered after the giving of a judgment or making of an order which, if discovered in time, would have entitled the party against whom the judgment or order is given or made to a judgment or decision in his favour, or to a different judgment or order, he may apply to the Court or a Judge for a stay of execution or other appropriate relief; and the Court or a Judge may grant such relief, and for that purpose may direct such proceedings to be taken, and such questions or issue of fact to be tried or determined, and such enquiries to be made, as may be just." (my emphasis) The provisions of r.3 should also be noted; it provides that no proceedings shall be taken for the purpose of obtaining relief from judgments or orders on the ground of facts arising or discovered after judgment or order, except as is provided for by r.1. It may well be, as McPherson J observed in K.G.K. -- 18 of 24 -- 18 Constructions Pty Ltd v. Eastcoast Earthmoving Pty Ltd (1985) 2 Qd. R. 13 that the rule was inspired by the observations of Griffith C.J. in Woods v. Sheriff of Queensland (1895) 6 Q.L.J. 163 at 165. If that be so then at least the intention of the draftsman of the rule, if not its meaning on an objective construction, was to enable the Court to put an end to the continued operation of an order the enforcement of which would be rendered unjust by events which had occurred since the judgment was originally given. There have, however, been very few reported cases in which the rule has been applied, and it is by no means certain that the rule has such a consequence. Hoare J in Welz v. H.P. Promotions Pty Ltd (1971) Qd. R. 112 was able to resolve the issue before him by exercising the inherent jurisdiction of the Court to prevent an abuse of its process; but he did observe at 116 that it "seems to me probable" that the Court could have achieved the same result by applying O. 45 r. 1. In that case the plaintiff had obtained judgment for an amount of money and had subsequently caused a writ of execution to be entered in the register in respect of land owned by the defendant. Thereafter the defendant tendered payment of the amount of the judgment debt, and, upon the plaintiff refusing to accept the tender, paid it into Court. The refusal to accept the money was based on the plaintiff's contention that the defendant was bankrupt and the tender would only be accepted from some person other than the defendant. In the circumstances the continued registration of the writ of execution was held to be an abuse of process and that writ was -- 19 of 24 -- 19 set aside. It was such an order that the learned Judge contemplated could have been made by applying O. 45. The rule was next considered by the Full Court in K.G.K. Constructions; Campbell C.J. and Sheahan J agreed with the reasons of McPherson J. In that case the defendant failed to comply with an order requiring it to make discovery and deliver further and better particulars by a specified date on condition that in default its defence be struck out. It defaulted in complying with the order, and failed in subsequent applications before Chamber Judges to have the right to deliver a defence restored, notwithstanding that it had by then complied with the terms of the order relating to the making of discovery and giving of further and better particulars. On appeal McPherson J considered that the matter could be dealt with by relying on O. 45. Facts had arisen since the making of the self-executing order (namely discovery had been made and further and better particulars provided) which in the circumstances entitled the defendant "to be relieved from" the consequences of the self-executing order. Appropriate orders were moulded to meet the situation. Apart from referring to what Griffith C.J. said in Woods there is little additional guidance to be found from the reasoning as to the scope of operation of the rule. The Full Court also gave some consideration to the rule in Smith v. Smith (1987) 2 Qd. R. 807. There a consent order had been made whereunder an account in a partnership action was ordered to be taken and it was further ordered that all costs incidental to the taking of the accounts were to come out of -- 20 of 24 -- 20 the partnership assets. Subsequently one of the partners made an open offer to settle the dispute for a specified sum of money, and reserved the right to bring the offer to the attention of the Court on the question of the costs of the taking of the accounts. The taking of accounts was a protracted exercise and the party who had made the open offer was substantially successful. In consequence that party applied for an order for costs. The Judge before whom that application came varied the terms of the consent order and ordered that the party who had made the open offer should in general terms recover his costs. Each member of the Court concluded that the variation order being appealed from could be made by exercising the power conferred by O. 45 r. 1. Each also agreed that the rule applied to a consent order. de Jersey J (with whom Andrews C.J. agreed) said at 812-3: "The provision had a prima facie application. The appellants could be categorised as persons 'against whom' the original costs order was made, in that that order could operate to diminish what they might otherwise ultimately recover from the partnership assets. The 'fact' arising subsequently to the consent order was the open offer, in terms not dissimilar from the position established upon the taking of the account. Whilst it is true that the order sought to be varied was a consent order, such orders are not in terms excluded from the operation of the provision, and there is no necessary implication that they be excluded. Further, insofar as the use in the rule of the word 'entitle', might be thought to exclude a variation on discretionary grounds, prior instances of the Court's reliance on and reference to this provision suggests no such limitation." Thomas J in that case also considered that O. 45 r. 1 gave the Judge jurisdiction to vary the earlier consent order. The final case to which reference should be made is the -- 21 of 24 -- 21 decision of McPherson J. in ex parte Edwards (1989) 1 Qd. R. 139. That decision was concerned with the circumstances in which an application for bail could be made after an earlier refusal. The ratio was that the second application could only be successfully made where some additional facts had arisen or been discovered so as to bring the matter within O. 45 r. 1. At 144 the following observation was made: "The expression used in O. 45 r. 1 is, it will be noticed, 'would' have and not merely 'might' have entitled. A persuasive and satisfying case is therefore required, and not one in which the differences disclosed by the additional material go only to matters of mere detail, or to considerations which, although not previously raised, would not have been likely to alter the balance to one favouring the granting of bail." His Honour was not in that case concerned with that part of the rule which empowers the Court to grant relief from a judgment because of facts which have arisen after the giving of the judgment, and in consequence the remarks in the quoted passage are not of direct relevance. However, they do indicate that care must be taken in applying the provisions of the rule; it is not a power to be exercised merely because there has been some minor change with regard to relevant facts since the making of the judgment. I have also been concerned as to whether or not the registration of the order of the Local Government Court in this Court entitles the defendant to rely on O. 45 r. 1 in the circumstances which have arisen. On reflection I have concluded that r. 24 has the effect of making the order an order of this Court with a standing equal to that of an order -- 22 of 24 -- 22 originally made by this Court. It follows that all rules, including O. 45 r. 1, would apply to it. I have further come to the conclusion that if the defendant can establish the necessary condition precedent then this Court has power pursuant to that rule to grant relief from the judgment by, inter alia, staying it, or restraining the plaintiffs from enforcing it. A period of 5 years has elapsed since the making of the original consent order and the plaintiffs have not yet met their obligations thereunder. As already pointed out, they are obliged to submit plans (including the plans showing the amalgamation of the subject lands) prior to the final preparation of the rezoning deed for execution by the parties. They have not done that. On the contrary throughout most of that 5 year period they have tried to force the defendant to agree to terms and conditions contrary to those contained in the consent order. During that period there has been a significant change in the town planning law and procedure relevant to the subject lands. Those matters, in my view, constitute new facts arising out after the giving of the judgment which would make it unfair or unjust to enforce the judgment in its original form. It follows that the defendants are entitled to succeed on their counter-claim. There will therefore be orders that the plaintiffs' claim be dismissed, that the order of the Local Government Court registered in this Court on 12 November 1993 be stayed, and -- 23 of 24 -- 23 that the plaintiffs be restrained from enforcing the said order. The plaintiffs will be ordered to pay the defendant's taxed costs of and incidental to the action and counter-claim. -- 24 of 24 --