High Court rules Council out of time to recover rates
In its recent decision in Brisbane City Council v Amos, the High Court decided that Brisbane City Council was unable to recover outstanding rates and charges because it had commenced Court proceedings after 6 years. While the case involved the recovery of rates, charges and interest it is potentially relevant to the recovery of all statutory charges.
Mr Amos was the registered owner of rateable land. Council commenced Court proceedings in 2009 against Mr Amos to recover 12 years’ worth of overdue and unpaid rates for the period 1999 to 2012 of approximately $494,000 plus interest of approximately $314,000.
The Court was asked to decide if Council was out of time to recover the unpaid rates because of the limitation period for starting Court proceedings.
Two potential limitation periods in the relevant law, the Limitations of Actions Act 1974 (Qld) applied. The first 12 year limitation period applies to actions to recover “money secured by a mortgage or other charge on a property”. This covers debts created by statute and secured by a charge. This was the limitation period that Council argued applied.
The second 6 year limitation period applies to actions to recover money under an ‘enactment’. Mr Amos argued that this period applied and that Council could not recover rates that were levied and owing more than 6 years before Council started its action.
For the purpose of the Court proceedings, it was agreed between the parties that the overdue rates and charges were both a charge on land and a personal claim.
The High Court decided that the 6 year limitation period applied and in doing so followed a 1899 UK Court of Appeal decision in Barnes v Glenton. The Judges unanimously agreed that the recovery of rates was a personal claim to recover a sum of money secured by a charge and that both the 6 year and 12 year limitation period was capable of applying. However, where there was an overlap in limitation periods, the defendant, Mr Amos, was entitled to rely upon the shorter period. Council could not therefore recover that portion of the rates owing or interest for the period before 23 June 2003.
This decision confirms the 6 year limitation period for recovery of rates and charges and has potential ramifications for councils and other authorities seeking to recover other statutory charges.
Author: Jenny Humphris
  HCA 27
 1 QB 885
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DNMRE Current Consultations
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Central Coast Council v Armstrong  FCA 1613
Pursuant to s 133(9) of the Bankruptcy Act 1966 (Cth), the property at 4 Turners Beach Road, Turners Beach in Tasmania as is more particularly described in Certificate of Title Volume 8179 Folio 1 vest in the Central Coast Council for the purposes of sale by the Central Coast Council of the property for unpaid rates and otherwise in accordance with the provisions of s 137 of the Local Government Act 1993 (Tas).
Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba  FCA 1585
PRACTICE AND PROCEDURE – application for an interlocutory injunction to restrain the respondent council from conducting a community ballot – where injunction sought pending the outcome of the appeal – where respondent council proposed to conduct a community ballot for the purposes of a process conducted by the Commonwealth Minister responsible for selecting a site for the National Radioactive Waste Management Facility – where ballot proposed to be conducted prior to the hearing of the appeal – where ballot proposed to be conducted in accordance with the franchise expressed in the Local Government (Elections) Act 1999 (SA) – where appellant claimed its members who held native title rights to the land in question were excluded from the ballot in contravention of the Racial Discrimination Act 1975 (Cth) – where primary judge did not accept those claims – whether the appeal would be rendered nugatory if the injunction was not granted – whether there was a strong prima facie case on appeal – whether the balance of convenience favoured the grant of an injunction – application dismissed
Federal Court of Australia Act 1976 (Cth) s 25; National Radioactive Waste Management Act 2012 (Cth) ss 7, 10, 18, 19, 22, 23, Part 2
Clarence City Council v Commonwealth of Australia  FCA 1568
DECLARATORY RELIEF – applications by strangers to lease agreements – applicants seeking declarations as to the proper construction of a term of agreements by which they benefited economically – where parties to the agreements were not in dispute about the proper construction and applicability of the relevant term – where lessee contended that the strangers had no standing to seek such declaratory relief – where applicants asserted right to relief was based merely on an agreement to which they were not a party – importance of the doctrine of privity – Trident General Insurance Co Ltd v McNiece Bros Pty Ltd  HCA 44; (1988) 165 CLR 107 at 141-143 per Deane J applied – applicants had no standing to seek declaratory relief – proceedings dismissed
Karimbla Properties (No 13) Pty Limited v The Council of the City of Sydney; Meriton Apartments Pty Limited v The Council of the City of Sydney; Karimbla Properties (No 25) Pty Limited v The Council of the City of Sydney  NSWLEC 133
LOCAL GOVERNMENT RATING – system of categorisation for rating purposes – applications for re‑categorisation from business to residential – Council approves re-categorisation from 1 July 2017 – each application sought an earlier (but different in each proceedings) effective date for the re-categorisation – appeals against the Council’s operative date for re‑categorisation – range of issues, including jurisdictional ones, raised by the Council – consideration of whether, taking each case for the relevant owning company at its highest on jurisdictional and legal issues, it was appropriate, is a matter of discretion, to award the extent of retrospectivity which would arise from the operative dates sought by each owning company – as a matter of discretion, not appropriate to order earlier operative date for each re-categorisation – each proceedings dismissed with costs reserved. Local Government Act 1993 , ss 511, 516, 518, 521 and 523 to 527
Macquarie International Health Clinic Pty Ltd v Sydney Local Health District  NSWSC 1199
(2) Declare that each of the following notices was validly issued by the defendant to the plaintiff:
ENVIRONMENT AND PLANNING — Building approval – whether the building approval had lapsed – “substantial physical commencement” test in s 104 of the Local Government Act 1993 (NSW) – whether there has been some positive unequivocal step indicating that construction of the hospital has been commenced and that some substantial part of the works has been physically commenced
LAND LAW — Conveyancing — Service of notices – CONTRACTS — Remedies — Damages – whether inquiry as to damages should be ordered – whether causation of more than nominal damage established
Environmental Planning and Assessment Amendment Act 1997 (NSW)
Environmental Planning and Assessment Regulation 2000 (NSW), cl 55
Local Government Act 1993 (NSW), ss 103, 104, 315, Ch 7
Statute Law (Miscellaneous Provisions) Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 14.11(d)
Dominello v Harbour Radio Pty Ltd t/as 2GB (No.2)  NSWSC 1089
(1) Order the defendant to pay the plaintiff’s expenses reasonably incurred before the making of the renewed offer to make amends on 4 September 2018, and his expenses reasonably incurred in considering that offer, as agreed or assessed.
DEFAMATION – Costs – where an offer to make amends has been accepted by the plaintiff – where the offer includes payment of the plaintiff’s expenses reasonably incurred –whether the Court has the power to make a costs order – where neither party acted unreasonably in the course of litigation
Radio publication: The Herald reports that Mr Dominello has been accused of threatening and intimidating in order to have a 1,400 unit development approved. It’s claimed he pressured a local councillor by linking her party pre‑selection with her vote on the development
LKF Investments Pty Ltd v Inner West Council  NSWLEC 1458
DEVELOPMENT APPLICATION – State Environmental Planning Policy (Affordable Rental Housing) – boarding house – provision of car parking – car share – stormwater drainage
Jam Ventures Australia Pty Ltd v Inner West Council  NSWLEC 1456
APPEAL – modification application – deletion of deferred commencement conditions that require easement for drainage over downstream property – stormwater design proposes drainage to street frontage – adequacy of proposed stormwater design – development control plan provisions – whether flexibility should be afforded when standards in the development control plan are not met
Williams v Shellharbour City Council  NSWLEC 135
SEPARATE QUESTION: whether to order a separate question – legal principles to be applied – question if answered negatively would be entirely dispositive of the proceedings – delay in making the application – substantial savings in costs and time – separate question ordered – parties not entitled to cease preparing for final hearing pending determination of separate question thereby causing potential vacation of hearing dates.
MAA Consultancy Pty Ltd v Fairfield City Council  NSWLEC 1450
MODIFICATION APPLICATION – continuing residential use – FSR exceedance – insufficient landscaping – OSD requirement – existing unapproved works – substantially the same
Dungog Shire Council v Hunter Industrial Rental Equipment Pty Limited  NSWLEC 132
ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers –Discretionary powers – stay of proceedings – temporary – Notice of Motion to extend stay of orders to enable State Significant Development (SSD) process to be completed – ongoing breach of planning and environment laws – importance of upholding planning and environment laws – impact on the community – impact upon employees and third parties – Notice of Motion dismissed
Bouchard v Waverley Council  NSWLEC 1449
DEVELOPMENT APPLICATION – alterations and additions including an additional level to a development for which consent has been granted but has not yet been constructed – exceedance of the height of buildings development standard – exceedance of the floor space ratio development standard – written requests seeking to justify the contravention of development standards have not demonstrated that compliance with the development standards is unreasonable or unnecessary to justify the contravention.
Alderton v Fraser Coast Regional Council  QIRC 137
Application refused. INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – where termination of employment following disciplinary action – where inappropriate conduct, punctuality and absenteeism – where disrespect and unprofessionalism in the workplace – where breaches of Council's Code of Conduct – where applicant claims Council breached workplace rights by taking adverse action – where applicant claims mental injury with mixed anxiety and depressed mood - whether termination harsh, unjust or unreasonable Industrial Relations Act 2016, s 316, s 317, a 320, s 545
National Consumer Credit Protection Amendment (Small Amount Credit Contract and Consumer Lease Reforms) Bill 2019 [No. 2]
HR 16/09/2019 – his bill amends the regulatory framework for Small Amount Credit Contracts (‘SACC’) (commonly known as payday loans) and consumer leases (known as rent-to-buy schemes), including preventing lessors and credit assistance providers from undertaking door-to-door selling of consumer leases at residential homes
Commonwealth Electoral Amendment (Real Time Disclosure of Political Donations) Bill 2019
HR 16/09/2019 – This Bill amends the Act to require the agent or financial controller of the party, branch or campaigner to advise the electoral commission of any donation received by the party, branch or campaigner that meets or exceeds the disclosure threshold. The notification must occur within 5 business days of receipt of the donation
Criminal Code Amendment (Agricultural Protection) Bill 2019
Assent Act no: 67 Year: 2019 19/09/2019
Consideration of Senate message Details: House agreed to Senate amendments 12/09/2019
Amends the Criminal Code Act 1995 to introduce two new offences in relation to the incitement of trespass or property offences on agricultural land
See Criminal Code Amendment (Agricultural Protection) Act 2019 24/09/2019
Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (M12 Motorway) Order 2019 (2019-473) — published LW 27 September 2019
Liquor Amendment (Miscellaneous) Regulation (No 2) 2019 (2019-463) — published LW 20 September 2019
Natural Resources Access Regulator Amendment Regulation 2019 (2019-464) — published LW 20 September 2019
Protection of the Environment Operations (Waste) Amendment Regulation 2019 (2019-465) — published LW 20 September 2019
Subordinate legislation as made
No 195 Rural and Regional Adjustment (Household Waste Payment Scheme) Amendment Regulation 2019 27 September 2019
No 189 Waste Reduction and Recycling (Container Refund Scheme—Material Recovery Agreements) Amendment Regulation 2019 20 September 2019
Bills updated 19 September
Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Bill 2019
Introduced by: Hon L Enoch MP on 27/02/2019
Stage reached: 2nd reading adjourned on 18/09/2019
Electoral (Voter's Choice) Amendment Bill
Introduced by: Mr D Janetzki on 18/09/2019
Stage reached: Referred to Committee on 18/09/2019
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Jenny Humphris