The developer who lost a Federal Court case seeking to enforce a sales contract for the contentious Birchalls' car park has lodged an appeal.
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In a first ground of appeal Creative Property Holdings alleges Justice David O' Callaghan erred in law and in fact by finding that there was not an enforceable contract between CPH and the car park owner Car Parks Super.
The second ground alleges:" That the learned primary judge erred in law by refusing to admit into evidence the entirety of the affidavit [Creative Property Holdings director] Christopher Billing sworn on 28 September 2021".
Creative Property Holdings proposed a $90 million creative precinct on the Paterson St central car park site.
However, Justice O' Callaghan found that no binding contract existed despite negotiations and several proposed contracts between the two parties over the period from July 2020 to December 2020.
The Federal Court decision has led to the almost certain loss of a $10 million Federal Government grant under the Building Better Regions Fund. The grant was tied to the cultural and creative development at the site.
After the Federal Court decision the director of Car Parks Super Don Allen submitted to the City of Launceston Council his own $60 million proposal for the car park site. In early December City of Launceston chief executive officer Michael Stretton suggested that there may be an appeal about the decision.
"The Council's officers are in ongoing discussions and negotiations with the Federal Government around the BBRF and a decision will be made in respect to the BBRF once all options have been fully explored," Mr Stretton said in answer to a question from Councillor Tim Walker.
The Council was the guarantor for Creative Property Holdings in early negotiations with Car Parks Super and paid a $1.2 million deposit on the then $12 million car park site in July 2020.
In his decision Justice O' Callaghan said: "The Launceston City Council appeared at the hearing, saying it took a neutral role, which I take to mean that it would abide by the result."
The Council wants to build a Metro bus interchange on the site.
In his decision Justice O' Callaghan outlined that the parties had argued the case by reference to an agreed bundle of documents and that no witnesses were called.
"The applicant [Creative Property Holdings] sought to rely on an affidavit of Christopher Billing dated 28 September 2021, but his evidence was irrelevant because it went to the deponent's subjective intentions," he said.
"I accordingly declined to admit it into evidence. The parties agreed that the relevant intention of the parties is to be determined objectively on the basis of the exchanged correspondence."
The Creative Precinct also attracted other Federal and State Government funds of about $14 million.
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