Avel Pty Ltd v Gold Coast City Council & Anor [1993] QPEC 65

State Reporting Bureau_,______________________________________ _ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) I - - - / Ri:=v---r-,, ,,.. ·- - - ·~~~;_c::,'"' -~C~;~s l~':?IJED f /oa,:J·;•;c:;:;'".ii~~ J PLANNING AND ENVIRONMENT COURT JUDGE ROW p & E No 188 of 1993 \ AVEL PTY LTD ACN 009 041 01 6 and GOLD COAST CITY COUNCIL and BARBRAY NOMINEES PTY LTD BRISBANE .. DATE 10/ 08/93 ORDER Appellant· Respondent Respondent by Election G S tr et Brisbane Q. 4000 Telephone: {07) 227 4360. Facsimile: (07) 227 5532 4th Floor, The Law Courts, eorge e , , ~~- - -- 1 of 9 -- \', 100893 T 5/SRM M/T 3926/93 (Row DCJ) HIS HONOUR: I publish my reasons. 10 20 30 40 50 60 2 ORDER -- 2 of 9 -- ,· IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND 6th August 1993 P&E Appeal No. 188 of 1993 BETWEEN: AVEL PTY LTD Appellant COUNCIL OF THE CITY OF GOLD COAST Respondent BARBRAY NOMINEES PTY LTD Respondent by Election REASONS FOR JUDGMENT ROW D.C.J. Delivered the Tenth day of August 1993 The issue before the Court relates as to whether the respondent by election is a nonentity or whether there has been a misnomer or misdescription in the application lodged ,, ) with the respondent. By an application dated 18 March 1993 Playtime Barbray applied to the respondent for permission to use land described as Lot 2 on RP 52952 for the purpose of Indoor Recreation (Amusement Parlour). The application was lodged by Design Imagery Pty. Ltd. as authorised agent for the applicant. Avel Pty. Ltd. (Avel) objected to the application. On 21 May 1993 the respondent approved, subject to conditions, the said application and notified the manager Playtime Barbray C/- Design Imagery of its decision by letter dated 26 May 1993. By -- 3 of 9 -- Notice of Appeal filed on 29 June 1993 Avel appealed to the Court against the decision of the respondent approving the application. On 2 July 1993 the solicitors for Avel forwarded to the manager of Playtime Barbray C/- Design Imagery Pty Ltd a Notice of Appeal and a Notice advising of the applicants entitlement to become a respondent by election to the appeal. On 5 August 1993 Barbray Nominees Pty. Ltd. elected to become a respondent in the appeal. on 29 June 1993 Barbray Nominees Pty Ltd appealed against the decision of the respondent approving the application. (_ (P&E Appeal No. 30 of 1993 (Southport Registry)). The affidavit of Robert Mark Hynes, solicitor for Avel, establishes that consequent upon searches made on both the Australian Securities Commission and the Deputy Registrar of Business Names that during the period from the first day of January 1993 until the fourth day of August 1993 there was no company or business registered in the name of Playtime Barbray. The affidavit of Eric Muir, solicitor for the respondent by election sworn on 5 August 1993 establishes that Barbary Nominees Pty Ltd operates businesses under the name of "Playtime" which is a registered Business Name registered in the name of Antha Pty Ltd. The affidavit further establishes Antha Pty Ltd has, by agreement, authorised Barbray Nominees Pty Ltd to use the name "Playtime" in conducting its business. The issue before the Court to be decided as a preliminary point is as to whether the Notice of Election for which sufficient reason has been shown to extend the time is valid in the circumstances or whether the application was one which C ( / ( -- 4 of 9 -- \ / was by a non existent person and consequently one on which there was no authority for the respondent to decide. Substantially the issue is whether the use of the name Playtime Barbray was a misnomer or a misdescription or whether alternatively the applicant was a non-existing legal entity. The principles to be considered were referred to by the Court in McDonald & Anor v Maroochy Shire Council & Anor (1990) QPLR 76. The name of the applicant as shown on the application was Playtime Barbray. There was nothing on the application in itself which is indicative that Barbary Nominees Pty Ltd was in any way the applicant. A reasonable person reading the application would clearly understand the applicant to be that as shown on the application and not a company which has not the word "Playtime" in its name. There is not sufficient similarity between the name Playtime and Barbray Nominees Pty. Ltd. which would lead a reasonable person to understand that the company was the applicant. On the material before me I am satisfied that the respondent being in receipt of the application would not be put on its guard as to whether the ' \1 name of the applicant was a mere misnomer or misdescription in relation to some other intended entity. The application was signed by a person purporting to be the authorised agent for the applicant although it is to be noted that under the signature appears the words "for Barbray". On the material I am satisfied that Playtime Barbray is neither a registered firm nor is there a company of that name. -- 5 of 9 -- On the evidence I am satisfied that the application was made by a non-existent legal entity and is not a case where there has been a misnomer or misdescription of the applicant. I therefore find that the respondent had no power to decide the application. The appeal is allowed on the limited ground that the respondent had no power to determine the application which was made by a non-existent legal entity. ( ( ( -- 6 of 9 -- / State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) PLANNING AND ENVIRONMENT COURT JUDGE ROW P & E No 188 of 1993 AVEL PTY LTD and GOLD COAST CITY BRISBANE .. DATE 06/08/93 ORDER Appellant Respondent 1 -- 7 of 9 -- 060893 HIS HONOUR: I find that on the material, sufficient cause has been shown to extend time. I extend the time for filing the notice of election to 29 July 1993. In my opinion, the application was not made by a party who is a known legal entity. The case is not one of misnomer but one where it is made by a non-legal entity. In my opinion, in view of my determination that the respondent by election is a non-existent person, and consequently the application made to the respondent was that by a non-existing person, the respondent had no power to decide the application. The appeal is allowed on that limited ground. In this matter, the appellant seeks an order for costs against Barbray Nominees Pty Ltd. It was submitted that the Court had jurisdiction in relation to the whole of the application directions under s 7. 6 ( i) ( b) (iii) , or alternatively for costs of the adjournment pursuant to s 7.6 ( 1 )( b} (ii}. Whilst the arguments put before the Court have some merit, I feel that the points in favour that there be no order made as to costs on the basis that the Court has no jurisdiction 2 ORDER -- 8 of 9 -- 060893 is more preferable. When the matter came before the Court on 5 August 1993, there were some difficulties in relation to a Notice of Election which it was alleged had been filed but was not on the Court file. A subsequent search of the Court Registry has ascertained that the Notice of Election was, in fact, inadvertently placed on another file. Consequently, one of the bases on which the matter had to be adjourned was not because of default on the part of any party. In all of the circumstances, I make no order as to costs. 3 ORDER -- 9 of 9 --