Amos v Brisbane City Council

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SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Brisbane City Council [2018] QCA 11

PARTIES:

EDWARD AMOS
(appellant)
v
BRISBANE CITY COUNCIL
(respondent)

FILE NO/S:

Appeal No 7247 of 2016
SC No 6709 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2016] QSC 131

DELIVERED ON:

20 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2017

JUDGES:

Fraser and Philippides JJA and Dalton J

ORDERS:

1.   Allow the appeal.

2.   Set aside the orders made in the Queensland Supreme Court on 20 June 2016.

3.   Judgment for the respondent in accordance with minutes of judgment produced by the parties to the Registrar.

4.   The respondent is to pay the appellant’s costs of the appeal.

CATCHWORDS:

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – ACTIONS TO RECOVER MONEY RECOVERABLE BY VIRTUE OF AN ENACTMENT – where the respondent brought an action to recover overdue rates and charges – where the rates and charges were a charge on the land – whether the primary judge erred in holding that the 12 year limitation in s 26(1) Limitation of Actions Act 1974 (Qld) applied to the exclusion of the six year limitation period in s 10(1)(d) and s 26(5)

REAL PROPERTY – RATES AND CHARGES – WATER SEWERAGE AND DRAINAGE RATES AND CHARGES – RATEABLE LAND – where the service was provided to a structure – where the primary judge found the appellant implicitly asked for the service to be provided – whether the primary judge erred in finding the appellant liable for utility charges levied by the respondent on rateable land owned by the appellant

Acts Interpretation Act 1954 (Qld), s 32A
City of Brisbane Act 2010 (Qld), s 93(1), s 93(2), s 94(1), s 97(2), s 257
City of Brisbane (Finance, Plans and Reporting) Regulation 2010 (Qld), s 59, s 64, s 65(1), s 65(3), s 66(1)
Limitation of Actions Act 1974 (Qld), s 10(1)(d), s 10(3), s 26(1), s 26(5)
Real Property Limitation Act 1874 (UK), s 8

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41, cited
Australia and New Zealand Banking Group Ltd v Douglas Morris Investments Pty Ltd [1992] 1 Qd R 478, explained
Bank of New South Wales v Brown (1983) 151 CLR 514; [1983] HCA 1, considered
Bank Officials’ Association (South Australian Branch) v Savings Bank of South Australia (1923) 32 CLR 276; [1923] HCA 25, cited
Barnes v Glenton [1898] 2 QB 223, considered
Barnes v Glenton [1899] 1 QB 885, explained
Brisbane City Council v Amos (2016) 216 LGERA 312; [2016] QSC 131, related
Bristol and West plc v Bartlett [2003] 1 WLR 284; [2002] EWCA Civ 1181, cited
Dennerley v Prestwich Urban District Council [1930] 1 KB 334, considered
Equuscorp Pty Ltd v Lloyd [1999] 1 VR 854; [1998] VSC 171, considered
Federal Commissioner of Taxation v Consolidated Media Holdings…

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Details
Case
[2018] QCA 11
Decision Date

CaseChat Overview and Summary

Amos was the owner of a property in Queensland which was subject to water sewerage and drainage rates and charges imposed by Brisbane City Council. Amos brought an action against the Council for various causes of action, including a claim for recovery of rates and charges levied by the Council on the property. The Council brought a cross-claim against Amos for recovery of overdue rates and charges. The primary judge found in favour of the Council and Amos appealed. The appeal was to the Queensland Court of Appeal. The primary legal issue before the court was whether the primary judge was correct to find that the twelve-year limitation period in s 26(1) of the Limitation of Actions Act 1974 (Qld) applied to the exclusion of the six-year limitation period in s 10(1)(d) and s 26(5) of that Act. The court found that the primary judge was correct to find that the twelve-year limitation period applied. The court found that the water sewerage and drainage charges were a charge on the land and the primary judge was correct to find that the twelve-year limitation period applied to exclude the six-year limitation period. The court also found that the primary judge was correct to find that Amos was liable for the utility charges. The court found that Amos implicitly asked for the service to be provided and therefore was liable for the charges. The appeal was dismissed and the orders made in the Queensland Supreme Court were set aside. Judgment was entered in favour of the Council in accordance with the minutes of judgment produced by the parties to the Registrar. The Council was ordered to pay Amos’ costs of the appeal.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the orders made in the Queensland Supreme Court on 20 June 2016.

3. Judgment for the respondent in accordance with minutes of judgment produced by the parties to the Registrar.

4. The respondent is to pay the appellant’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 10(1) of the Limitation of Actions Act 1974 (Qld) provides:“(1)The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose—(a)subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;(b)an action to enforce a recognisance;(c)an action to enforce an award, where the agreement to arbitrate is not by an instrument under seal;(d)an action to recover a sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of a penalty or forfeiture.” Section 26 provides:“(1)An action shall not be brought to recover a principal sum of money secured by a mortgage or other charge on property whether real or personal nor to recover proceeds of the sale of land after the expiration of 12 years from the date on which the right to receive the money accrued.(2)A foreclosure action in respect of mortgaged personal property shall not be brought after the expiration of 12 years from the date on which the right to foreclose accrued, but if after that date the mortgagee was in possession of the mortgaged property, the right to foreclose on the property that was in the mortgagee’s possession shall, for the purposes of this subsection, be deemed not to have accrued until the date on which the mortgagee’s possession discontinued.(3)The right to receive a principal sum of money secured by the mortgage or other charge and the right to foreclose on the property subject to the mortgage or charge shall be deemed not to accrue so long as that property comprises a future interest or a life assurance policy that has not matured or been determined.(4)The provisions of this section do not apply to a foreclosure action in respect of mortgaged land, but the provisions of this Act with respect to an action to recover land apply to such an action.(5)An action to recover arrears of interest payable in respect of a sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of land or to recover damages in respect of such arrears shall not be brought after the expiration of 6 years from the date on which the interest became due.(5A)Notwithstanding subsection (5)—(a)where a prior mortgagee or encumbrancee has been in possession of the property charged and an action is brought within 1 year of the discontinuance of such possession by the subsequent encumbrancee—the subsequent encumbrancee may recover by that action all the arrears of interest that fell due during the period of possession by the prior encumbrancee or damages in respect thereof, although the period exceeded 6 years; or(b)where the property subject to the mortgage or charge comprises a future interest or life assurance policy and it is a term of the mortgage or charge that arrears of interest be treated as part of the principal sum of money secured by the mortgage or charge—interest shall be deemed not to become due before the right to receive the principal sum of money has accrued or is deemed to have accrued.(6)This section does not apply to a mortgage or charge on a ship.”The statutory basis of the Council’s claims