[1994] 1 VR 163
CITY OF CAMBERWELL v CAMBERWELL SHOPPING CENTRE PTY LTD
SUPREME COURT OF VICTORIA APPEAL DIVISION
FULLAGAR (1), MARKS (2), and GOBBO (2), JJ
2 to 13, 17 to 19 February 1992, 31 March 1992
[1994] 1 VR 163
Appeal — Full Court — Leave to appeal — Decision on issues of liability — No
order pronounced — Whether a "determination" — Whether final or interlocutory — Supreme Court Act 1986 (No 110), s10, and s14(4)(b).
.
In May 1988 the Camberwell City Council entered into an agreement with a
developer under s811J(a) of the Local Government Act 1958 for the
redevelopment of Camberwell Junction. The agreement was conditional, inter
alia, upon the approval of the responsible State minister, as required by
s811G of the Act. It contained a clause obliging each party to use its best
endeavours to satisfy the conditions. The minister required the council under
s811H(4) to give public notice of the development proposal and to receive and
hear objections. S811H(5) provided that a council may withdraw a proposal
after considering objections.
The composition of the council changed after elections. On 8 August 1988 the
new council resolved to review the agreement and to consider the consequences
of breaking it. It heard objections to the proposal between November 1988 and
April 1989. It held negotiations with the developer between May and August
1989 concerning possible modifications to the proposal. On 18 September the
council resolved to withdraw from the proposal and on 19 September purported
to withdraw the application for approval from the minister relying on
s811H(5) of the Act.
The developer sued the council for damages for breach of contract. By
agreement with the parties, the trial judge decided the issue of liability
before assessing damages. He gave judgment on this issue in the developer's
favour, holding that the council was bound by the agreement but had
repudiated it. The judge did not, however, pronounce orders. The
authenticated judgment merely stated: "The issues of liability raised by the
council are not to be resolved in favour of the council and it is appropriate
therefore to turn to the issues between the parties as to damages." The
council appealed and, if necessary, sought leave to appeal. The developer
challenged the competency of the appeal on the grounds that no
"determination" had been made by the judge, as required by s10(2) of the
Supreme Court Act 1986.
Alternatively, it opposed leave to appeal.
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[1994] 1 VR 163
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