The future of a proposed $90 million Creative Precinct project in Launceston is up in the air after parties to a Federal Court appeal agreed to discontinue the case on Monday.
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In the appeal the proposer of the Creative Precinct, Creative Property Holdings, sought to enforce a $12 million contract to buy the Birchalls car park to be the site of the proposal.
However, CPH and the owner of the car park Car Parks Super agreed to discontinue the appeal at the 11th hour on Monday.
CPH director Christopher Billing said in a statement to the Examiner: "We have voluntarily withdrawn our appeal due to positive discussions that are working towards an agreement between the parties."
"We are pleased with this course of action and hopeful of further announcements in coming weeks."
Mr Allan was not available for comment.
The discontinuance casts further doubt over a $10 million Federal Government grant linked to the project.
Last Friday the Federal Court notified that the full court decision would be handed down at 4pm Monday.
However, counsel for Mr Billing told the Federal Court that a consent agreement for discontinuance had been reached with a $45,000 costs order to Mr Allan being agreed.
Justice Kathleen Farrell adjourned to consult fellow judges at 4.30pm and was unhappy upon resumption.
"Considerable frustration has been expressed at the lateness of the agreement coming as it has six weeks after the appeal was heard," she said.
"We have got to the point of written judgement and there has been considerable judicial time."
Justice Farrell said the amount of judicial time was a factor that would have weighed heavily against the grant of leave.
"The court had no inkling that that the parties would come to any form of agreement.
"Maybe the parties had no inkling before Friday."
But she said that the fact that it was a consent agreement meant the court would allow the discontinuance.
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CPH sought in the appeal to overturn a decision by Justice David O' Callaghan that a November 2020 contract CPH to purchase the car park was not valid.
Justice O'Callaghan found that no enforceable sale contract existed because there was no exchange of counterpart contracts in what was a "well-known, common and customary method of dealing".
The project has failed to proceed since being announced in June 2020 because of the wrangle between the parties about the car park site.
The City of Launceston council wants to build a bus interchange on part of the site at 41-55 Paterson St. The council was at one stage a guarantor for Mr Billing and paid a $1.2 million deposit for the car park.
The precinct was a vision to put Launceston on the world stage for the best artistic, cultural and creative thinkers was launched more in 2020.
It was touted as the home to a new creative hub which would include learning spaces, commercial tenancies and retail spaces to link to other parts of the hub, such as the bus mall and Birchalls' retail space being developed by the council.
After the first Federal Court decision Car Park Super Pty Ltd director Don Allen lodged his own $60 million proposal for the car park site but it was refused by the council because it had too many car parking spaces.
The mixed use proposal comprises five levels on the site adjacent to the former Birchalls store and present Myer store.
The proposed development would include retail shops on the ground level, three levels of public car parking and a roof top level featuring eight, three-bedroom residential apartments.
Car Parks Super has appealed to the Tasmanian Civil and Administrative Tribunal about Council's refusal.
In the original Federal Court decision Justice O'Callaghan said that "both the applicant and the respondent at various different times seemed to have lacked enthusiasm to complete the transaction".
"The applicant 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."
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