Parap Hotel Pty Ltd, Anne Hayward and JTR Investments Pty Ltd v Northern Territory Planning Authority and Red Tower Pty Ltd [FLR]

• Jurisdiction: Northern Territory
• Judge: Mildren J
• Judgment Date: 28 May 1993
• Court: Supreme Court
• Docket Number: No. 26 of 1993
• Date: 28 May 1993

(1993) 112 FLR 336

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Mildren J

No. 26 of 1993

Parap Hotel Pty Ltd, Anne Hayward and JTR Investments Pty Ltd

and

Northern Territory Planning Authority and Red Tower Pty Ltd

Costs — Discretion — Subject matter of proceedings no longer in existence — Plaintiffs allowed to discontinue action — Each party to bear own costs.

Costs — General principle — Court not to consider theoretical prospects of success — Ordinarily grant plaintiff leave to discontinue except in exceptional circumstances where such result unjust. JT Stratford and Son Ltd v Lindley and Others (No 2) (1969) 3 All ER 1122, followed.

JUDGE1

1 Mildren J This is an application by the plaintiffs for leave to discontinue these proceedings against the defendants, pursuant to r25.03 of the Supreme Court Rules. The second plaintiff, Anne Hayward, also seeks an order against the second defendant — Red Tower Pty Ltd — that it pay the second plaintiff's costs of the action. The first defendant (‘the Authority’) did not appear at the hearing. I was informed by counsel that the Authority consented to the granting of leave to discontinue the action so long as no order for costs was made against it.

Mildren J

2 The second defendant (‘Red Tower’) opposed the orders sought and made an application of its own that the proceedings be dismissed with costs as an abuse of process.

BACKGROUND

3 Red Tower is the registered proprietor of Lots 2700 and 2701 Gregory Street, Parap, on which it conducts a business known as ‘Casablanca Motel and Bogart's Restaurant.’ This land is zoned R3 under the Darwin Town Plan.

4 On 29 June 1992, an application was lodged with the Authority applying for consent to use the land for the purposes of ‘hotel in respect of bar area pursuant to clause 9.2 of the Darwin Town Plan.’ Red Tower does not concede that the form of application made was authorised by it. The purpose of the application as it appears to have been understood by the Authority, was to enable Red Tower to use the bar in its restaurant to sell or supply liquor to persons other than restaurant patrons or guests of the motel. By instrument of determination No DV4594, dated 17 July 1992, the Authority granted consent to the application to ‘develop Lots 2700 and 2701 … for the purpose of a hotel bar as ancillary to the motel’ in accordance with certain drawings.

5 On 10 December 1992 JTR Investments Pty Ltd, which operates a hotel known as the Parap Hotel in Parap Road, Parap, issued a Writ in action No 331 of 1992 (‘the first action’) against the Authority and Red Tower seeking declarations (a) that the instrument of determination DV4594 is void and of no effect and (b) that the granting of consent on or about 7 July 1992 to develop Lots 2700 and 2701 pursuant to s112(1)(a) of the Planning Act, to the application of the second defendant on or about 29 July (sic) 1992 in respect of Lots 2700 and 2701 is void and of no effect.

6 On 2 February 1993, Miss Hayward, who owns residential units on Lots 2698 and 2699 Drysdale Street, directly adjoining Red Tower's land, sought an order that she be joined as a plaintiff to the first action. This application was heard by the Master on 4 February. Red Tower opposed that application. One of the reasons for that appears to have been that Red Tower was unsure of JTR Investments Pty Ltd's locus standi, and wished to see a Statement of Claim before considering its position. JTR Investments Pty Ltd indicated that it proposed to issue its Statement of Claim shortly. The Master ordered it to deliver its Statement of Claim within fourteen days, and adjourned Miss Hayward's Summons sine die, with liberty to restore it on two weeks' notice after service of the Statement of Claim by JTR Investments Pty Ltd.

7 JTR Investments Pty Ltd did not deliver a Statement of Claim. Instead, on 15 February 1993, it joined with Miss Hayward and Parap Hotel Pty Ltd, the registered proprietor of the land on which JTR Investments Pty Ltd operated its hotel, as plaintiffs in the present proceedings against the defendants, which were commenced by Originating Motion. The relief sought in these proceedings was originally the same as that sought in the first action. At the same time as these proceedings were commenced, an affidavit was filed by the plaintiffs' solicitors in support of a Summons for the declarations sought. By letter dated 19 February 1993, the plaintiffs' solicitors advised the solicitors for Red Tower as follows:

‘We refer to the above proceedings and also to the proceedings commenced by Originating Motion on 15 February 1993.

In view of the proceeding commenced on Originating Motion, we would suggest that no further action be taken in Action No. 331 of 1992 at this juncture. At the moment we are considering whether it is appropriate to consolidate the two actions.

Accordingly, we do not propose to issue a statement of claim, or further pursue the application for joinder of an additional plaintiff at this stage.

Please confirm that, in the interest of saving costs to all parties, you accede to this course of action.’

8 It should also be noted that in 1992, Red Tower had applied to the Liquor Commission for a liquor licence so as to enable it to sell alcohol to customers without providing a substantial meal, and that hearing had been part heard in December 1992. The resumption of that hearing was due to take place on 22 March 1993, and five days had been set aside for that hearing to take place. The plaintiffs' purpose in bringing both of these proceedings was to provide a basis for the refusal by the Liquor Commission of Red Tower's application. Naturally, the plaintiffs hoped to obtain a ruling from this Court before the Liquor Commission hearing resumed.

9 By a Summons filed on 25 February, in the first action, Red Tower sought an order that the action be dismissed as no Statement of Claim had been filed. By a Summons dated 25 February in those proceedings Red Tower sought an order that the Originating Motion be dismissed as an abuse of process. On 25 February, those Summonses, together with the plaintiffs' Summons in this matter, were adjourned by Asche CJ until 5 March.

10 By letter dated 2 March 1993, the plaintiffs' solicitors advised Red Tower's solicitors that they intended to make application to the court on 5 March to amend the Originating Motion to also seek relief in the nature of...