Nordburger discontinues appeal against seizure of Frewville store for road project, but now faces paying hefty legal bills

Nordburger made a meal of trying to save its Frewville site and now the building has been razed, it’s giving up – but there’s still the question of the bill.

Fast food chain Nordburger has abandoned its bid to overturn eviction and reclaim its former Frewville store – because the building has been razed to make room for a freeway.

In a hearing late on Tuesday, Court of Appeal President Justice Mark Livesay formally discontinued Nordburger’s case against the Commissioner of Highways.

Justice Livesey acted after the chain’s director, Thomas Martin, said he intended to withdraw the repeatedly delayed case but had yet to file the paperwork.

“The appeal has effectively been negated by the demolition of the building on the subject land while this matter was on foot before the court,” he said.

“(Time) presents a difficulty to me … I’m involved in other proceedings … my intention is to file a notice of discontinuance of the appeal.”

Justice Livesey, however, said there was no need to wait.

The former Nordburger store on Glen Osmond Road, Frewville, which is now a demolition site.

“This appeal has been listed for some time … you have had a booking with the court for some weeks now,” he said.

“The court’s timetable needs to be complied with … if you no longer wish to proceed, I will discontinue the appeal today.”

Nordburger’s Frewville site was compulsorily acquired for the $35m upgrade of the intersection of Glen Osmond and Fullarton roads.

While its landlord accepted a government offer, the restaurant unsuccessfully fought eviction and then sought to overturn that loss, claiming the land had been “seized unlawfully”.

On Tuesday, counsel for the Commissioner confirmed they would seek to have Nordburger reimburse its legal costs – Mr Martin said that would be unfair.

“Given the particular circumstances of this matter, I would submit (awarding costs) would not be an appropriate outcome,” he said.

Justice Livesey said he would determine the issue of costs on Friday, during the period of time previously allocated to the now-discontinued appeal.