Axicom Pty Ltd v Bonney - [2023] QSC 113

SUPREME COURT OF QUEENSLAND

CITATION:

Axicom Pty Ltd v Bonney [2023] QSC 113

PARTIES:

AXICOM PTY LTD
ACN 090 873 019

(applicant)

v
JODIE MARIE BONNEY

(respondent)

FILE NO:

BS No 8185 of 2022

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2023 and 28 April 2023

JUDGE:

Cooper J

ORDERS:

1. Orders in the form set out in the schedule to these reasons.

2. I will hear the parties as to costs.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – LEASES – GENERALLY – where the applicant and respondent entered into a lease to permit the applicant to construct and operate a telecommunications tower on the respondent’s premises – where the respondent refused to permit the applicant access to her property pursuant to the lease – where the respondent refused to grant an easement over part of the property which the energy provider has sought – where the applicant seeks specific performance of the lease – whether the applicant is estopped from enforcing the terms of the lease, or is entitled to relief for misleading and deceptive conduct, by reason of representations made which the respondent says induced her to enter into the lease – whether the applicant should be refused relief because it does not hold all environmental approvals which the respondent says are required for the construction of the communications tower and the installation of the underground electrical cabling

Competition and Consumer Act 2010 (Cth), Schedule 2
Electricity Act 1994 (Qld), s 111
Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 18, s 18A, s 20A, s 67, s 67A, s 68
Environmental Protection Act 1994 (Qld), s 9, s 14, s 16, s 17, s 18, s 79, s 107, s 426, s 437, s 438
Environmental Protection Regulation 2019 (Qld), Sch 2
Evidence Act 1977 (Qld), s 92(1)(b)
Nature Conservation Act 1992 (Qld), s 14, s 89
Nature Conservations (Plants) Regulation 2020 (Qld), s 47(c)(ii), s 48(b)(ii)

Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, cited
Gynch v Polish Club Ltd (2015) 255 CLR 414, cited

COUNSEL:

P Somers for the applicant

R W Tooth for the respondent

SOLICITORS:

K&L Gates for the applicant

KJ Seaniger & Associates for the respondent

Introduction

The respondent has leased part of her property located at 80 Clayton Road, Lammermoor to the applicant. The execution of that lease, and its written terms, are not in contention.
The respondent’s property, more particularly described as Lot 2 on Registered Plan 843157, is a rural lot of approximately 9 hectares. The area leased to the applicant comprises approximately 225m²(Premises).
The purpose of the lease is to permit the applicant to construct and operate a telecommunications tower on the Premises, approximately 300 metres from the respondent’s house. At the time the lease was executed there was no electricity connection to the Premises. That remains the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QSC 113
Decision Date: 25 May 2023

CaseChat Overview and Summary

Axicom Pty Ltd brought an application against Jodie Marie Bonney for specific performance of a lease entered into with Ms Bonney for the construction and operation of a telecommunications tower on her property. Ms Bonney refused to permit Axicom access to her property and to grant an easement over part of the property for the installation of underground electrical cabling. The matter was heard in the Supreme Court of Queensland. The court was required to determine whether Axicom was estopped from enforcing the terms of the lease or was entitled to relief for misleading and deceptive conduct due to representations made by Axicom. The court also needed to decide if Axicom should be refused relief because it did not hold all environmental approvals required for the construction of the communications tower and the installation of the underground electrical cabling.

The court found that the proposed route for the underground cabling along the driveway area of Ms Bonney’s property was the only means of installing an electrical connection to the premises, and the easement was necessary to enable the premises to be connected to an electricity supply. The court rejected Ms Bonney’s arguments concerning the application of clauses 5.3(b) and 9(b) of the lease, holding that she was obliged to grant access to the premises and deliver signed copies of the easement and consent to survey plan. The court concluded that Ms Bonney’s refusal to permit access and deliver the documents constituted a breach of her obligations under the lease. The court found that the equitable remedy of specific performance was available as damages alone may be inadequate. The court also dismissed Ms Bonney’s estoppel and misleading and deceptive conduct claims based on the representations made by Axicom.

The court ordered that Axicom be granted specific performance of the lease, subject to Ms Bonney delivering signed copies of the easement and consent to survey plan. The court further ordered that Axicom and Ms Bonney attend to discuss costs.

Orders

Orders of the court

1. Orders in the form set out in the schedule to these reasons.

2. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondent provided a more detailed account of that visit in her second affidavit, sworn on 19 August 2022:[38]“On the 29 April 2020 there was the first site visit by David Hughes and Peter Bourke. They were looking at the power pole beside the house. Peter Bourke was examining the top of the pole and said to me ‘that is good you have 3 phase power’. I said ‘really I didn’t know that, that’s great’ We chatted about that and he explained amps to me and that this power was sufficient for the type of power required required [sic] by using the words spoke [sic] about the power required for the tower.The three of us went to view the actual tower site. I said to them ‘how much land do you need to use and how big would the site be’ David Hughes stated ‘it will only be a 10x10 site’ and Peter Bourke agreed by nodding his head and saying ‘yes that [sic] right’. David Hughes said ‘it will be a 25 meter [sic] high single pole tower so not much higher than those tree tops so it’s only a small site’ I said ‘ok, will you have to clear those trees’ and I pointed to a line of maturing native eucalyptus and Norfolk pine trees close to my boundary line about 15 meters [sic] in height.’ I sensed they could see this bothered me and I was scanning the vegetation in the area of the site. They said ‘We don’t know and are not sure’. I then said ‘I don’t think I can do that if they (the trees) had to go because the [sic] they are not in the way. It was clear by the words ‘do that’ I meant allow the tower to be built.At the same meeting I told them ‘there has been illegal excavation to the front of the property at [sic] front entrance to Clayton Street.’ I asked both of them but mainly directed to Peter Bourke ‘so you wouldn’t need to have anything to do with any other area of my property?’. They both assured me they would not, by saying ‘no We don’t’ and David Hughes said ‘We only need access to get in and out.’At the same site inspection We discussed the options of the potential power line route (to take power from my House power pole back to the Tower). I asked them again ‘you’re telling me that no other area of my property will be affected apart from the site and needing an access track in somewhere from the house to the back where the site would go?’. They both nodded and agreed saying ‘that’s right’ and David Hughes said ‘yes that is correct and we will maintain the access tracks at our own expense for the term of the lease’. We returned to the power pole beside my house. Peter Bourke said something like, ‘we can use this power from here and run a line to the site’ and mentioned 3 phase power again. Peter Bourke said ‘the power source was good and power won’t be a problem, that’s good’.At the same meeting David Hughes said to me ‘Pete … knows his stuff and has worked on a lot of different projects and has extensive experience with building tower sites. Peter is the main man on a large number of the [sic] Axicom’s thousands of towers’. I was convinced Peter Bourke was an Expert and from that tome onwards I had no doubt the Power supply was coming from the House power pole. During our discussions Peter Bourke displayed a great deal of knowledge of exactly what would happen. I had confidence in what he said.… It was said to me by Peter Bourke ‘the power supply was ‘perfect’ at 63 amps 3 phase Low Voltage and that there would be no interruption to my property power supply or any changes to household power supply’. …”[38]Affidavit of Jodie Marie Bonney filed 24 August 2022 (Court document 13), paragraphs 4 to 9.The applicant’s evidence

Decision

Reasons for decision

I am satisfied that the proposed route for the underground cabling along the driveway area of the respondent’s property is the only means of installing an electrical connection to the Premises. I am also satisfied that the easement is necessary to enable the Premises to be connected to an electricity supply, it being a requirement of Ergon before it provides that electrical connection.Conclusion on the respondent’s obligations under the lease I do not accept the respondent’s arguments concerning the application of cll 5.3(b) or 9(b) of the lease. I am satisfied that the respondent is obliged:(a)by cll 5.2, 5.3, 6.1 and 9(a) of the lease, to grant access to the Premises and so much of her property as is reasonably required to enable the applicant to undertake the work involved in constructing and commissioning the communications tower and to permit, and not interfere with, the work involved in constructing and commissioning the communications tower;(b)by cl 9(b) of the lease, to deliver signed copies of the easement and the consent to survey plan sought by the applicant to enable the work involved in constructing and commissioning the communications tower to be undertaken;(c)by the second (incorrectly numbered) cl 5.1 of the lease, to deliver a further signed consent to clearing of vegetation from her property. By denying the applicant access to her property and refusing to deliver signed copies of the documents referred to above, the respondent has breached her obligations under the lease. As the lease involves a disposition of an interest in the land, the equitable remedy of specific performance is available on the basis that damages alone may be an inadequate remedy. For those reasons, subject to the further matters raised by the respondent considered below, I am satisfied that the applicant is entitled to the relief it seeks.The alleged representations: estoppel or misleading and deceptive conduct The respondent’s estoppel argument is based upon a representation[36] she asserts was made to her, prior to the execution of the lease, to the effect that the only power source required for the communications tower would:(a)be from the power pole adjacent to her house which connects her property to the existing low voltage overhead power lines (see [46] above);(b)only follow the route identified in pre-lease negotiations; and(c)come from no other source.[36]Court document 39, paragraph 5.The respondent’s evidence On the respondent’s evidence, the representation was made during a visit to her property by two representatives of the applicant, David Hughes and Peter Burke, on 29 April 2020. The respondent swore two affidavits in which she gave evidence about what occurred during the site visit. In her first affidavit, sworn on 8 August 2022, the respondent deposed as follows:[37]“The first site meeting with Axicom was held with the [sic] David Hughes and Peter Burke who appeared to have more technical knowledge than David Hughes. They mentioned to me the Company already had some plans where the site would be and after walking the area it was worked [sic] where the Tower would go. During this discussion I was told it would be a 10 x 10 m square site with a 25 m single poll [sic] and that the power would come from my house. I was concerned and the three of us then walked over to the house and looked at the power there. We had a discussion concerning the route the power line would take. I was told a power Expert from an independent company could come out and do an assessment. I was asked to be home at the time of the proposed visit. …”[37]Affidavit of Jodie Marie Bonney filed 18 August 2022 (Court document 11), paragraph 4.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Axicom Pty Ltd v Bonney [2023] QSC 113
PARTIES:	AXICOM PTY LTD ACN 090 873 019 (applicant) v JODIE MARIE BONNEY (respondent)
FILE NO:	BS No 8185 of 2022
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 May 2023
DELIVERED AT:	Brisbane
HEARING DATE:	27 April 2023 and 28 April 2023
JUDGE:	Cooper J
ORDERS:	1. Orders in the form set out in the schedule to these reasons. 2. I will hear the parties as to costs.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – LEASES – GENERALLY – where the applicant and respondent entered into a lease to permit the applicant to construct and operate a telecommunications tower on the respondent’s premises – where the respondent refused to permit the applicant access to her property pursuant to the lease – where the respondent refused to grant an easement over part of the property which the energy provider has sought – where the applicant seeks specific performance of the lease – whether the applicant is estopped from enforcing the terms of the lease, or is entitled to relief for misleading and deceptive conduct, by reason of representations made which the respondent says induced her to enter into the lease – whether the applicant should be refused relief because it does not hold all environmental approvals which the respondent says are required for the construction of the communications tower and the installation of the underground electrical cabling Competition and Consumer Act 2010 (Cth), Schedule 2 Electricity Act 1994 (Qld), s 111 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 18, s 18A, s 20A, s 67, s 67A, s 68 Environmental Protection Act 1994 (Qld), s 9, s 14, s 16, s 17, s 18, s 79, s 107, s 426, s 437, s 438 Environmental Protection Regulation 2019 (Qld), Sch 2 Evidence Act 1977 (Qld), s 92(1)(b) Nature Conservation Act 1992 (Qld), s 14, s 89 Nature Conservations (Plants) Regulation 2020 (Qld), s 47(c)(ii), s 48(b)(ii) Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, cited Gynch v Polish Club Ltd (2015) 255 CLR 414, cited
COUNSEL:	P Somers for the applicant R W Tooth for the respondent
SOLICITORS:	K&L Gates for the applicant KJ Seaniger & Associates for the respondent