Everswell Pty Ltd v Beeliar Management Pty Ltd as trustee for Beeliar Development Trust - [2022] WASC 74

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   EVERSWELL PTY LTD -v- BEELIAR MANAGEMENT PTY LTD AS TRUSTEE FOR BEELIAR DEVELOPMENT TRUST [2022] WASC 74
CORAM:   MASTER SANDERSON
HEARD:   7 FEBRUARY 2022
DELIVERED          :   4 MARCH 2022
PUBLISHED           :   4 MARCH 2022
FILE NO/S:   CIV 1909 of 2021
BETWEEN:   EVERSWELL PTY LTD
Plaintiff

AND

BEELIAR MANAGEMENT PTY LTD AS TRUSTEE FOR BEELIAR DEVELOPMENT TRUST
Defendant

Catchwords:

Practice and procedure - Defendant's application for summary judgment - Turns on own facts

Legislation:

Planning and Development Act 2005 (WA)

Result:

Defendant's application be dismissed.

Costs of the application, including reserved costs, be costs in the cause.

Category: B

Representation:

Counsel:

Plaintiff	:	K de Kerloy
Defendant	:	P G McGowan

Solicitors:

Plaintiff	:	Hale Legal
Defendant	:	Rowley Legal

Case(s) referred to in decision(s):

Nil

MASTER SANDERSON:

This is the defendant's application for summary judgment. The defendant requires an extension of time to bring the application and the chamber summons filed by the defendant seeks that extension. While I will extend the time to bring the application, I will dismiss the application itself. These reasons deal with the grounds for dismissing the application.
Before dealing with the merits of the application, I should make some general comments about a defendant's application for summary judgment brought under O 16. First, the plaintiff's claim as set out in the statement of claim is to be taken as pleading all relevant material facts. That is to say, the plaintiff cannot, in resisting a defendant's summary judgment application, go outside the four walls of the pleading. This stands in contrast to an application brought under O 14. A defendant resisting an application for summary judgment by the plaintiff can raise any issue they see as relevant. It may be the issue raised catches the plaintiff by surprise. But even if that is the case, a defendant is not in any way restricted from raising any relevant matter.
Second, a defendant who is unsuccessful in a summary judgment application has a right of appeal. A plaintiff who is unsuccessful in a summary judgment application under O 14 has no such right. It is therefore necessary in determining an application under O 16 to provide reasons which justify the conclusion the application ought be dismissed. However, care must be taken not to decide or purport to decide any issues of fact arising between the parties. Nor is it appropriate to do anything more than identify issues of law which arise and which may be arguable. A final determination of the issues must await trial.
Turning then to the statement of claim, the plaintiff pleads both the plaintiff and the defendant are land developers. The issue between them arises under s 159 of the Planning and Development Act 2005 (WA) (the Act). That section reads as follows:
159. Subdivider may recover portion of road costs from later subdivider
(1)Where -
(a)a person (in this section called the later subdivider) has subdivided land in which -
(i)a lot or lots has or have a common boundary with; or
(ii)a road joins,
an existing road to which there is access from the subdivided land; and
(b)a person (in this section called the original subdivider) who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing or upgrading the existing road; and
(c)the later subdivider did not contribute to that cost,
the original subdivider may, in accordance with this Division, recover from the later subdivider a sum representing one‑half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, as referred to in paragraph (a).
(2)In this section -
CPI means the Table described as the Consumer Price Index (All Groups Index) for Perth published by the Commonwealth Statistician under the Census and Statistics Act 1905 of the Commonwealth, or if the same is not published, such other similar index as the Minister may reasonably determine;
market value of land means the capital sum, determined in accordance with section 155(3)(b)(ii), (iii) and (iv), which an unencumbered estate in fee simple in the land might reasonably be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require;
road has the meaning given by section 4(1) and includes a private road created under Part IVA of the Transfer of Land Act 1893 or as defined in the Land Administration Act 1997 section 3(1).
(3)In this section a reference to the cost of providing a road is a reference to the aggregate of -
(a)the value, as at the date of the subdivision referred to in subsection (1)(b), of the portion of the land provided as a road, being such percentage of the market value of the total area of land comprised in that subdivision as the area of the road bears to that total area as at the date of that subdivision; and
(b)the reasonable cost of designing and carrying out the following works -
(i)the survey of the land provided as a road; and
(ii)the formation, preparation, priming and sealing of the road; and
(iii)the provision of kerbing, drainage and service ducts in connection with the road,
escalated by the percentage by which the CPI last published prior to the date of the subsequent subdivision has increased over the CPI last published prior to the original subdivider subdividing the land referred to in subsection (1)(b).
The plaintiff pleads it was at all material times the registered proprietor of certain land described as Lot 39, Lot 38, Lot 9007, Lot 40 and Lot 41. All of these lots were subject to subdivision pursuant to approval, indorsed by the WA Planning Commission (WAPC) from time to time. The plaintiff pleads that in carrying out these subdivisions, it provided a number of roads including Delphinium Way and Astelia Road. It further pleads that in providing these roads it incurred certain costs.
The plaintiff then pleads the defendant was at all material times the registered proprietor of property known as Lot 81. In June 2019, Lot 81 was subdivided pursuant to WAPC approval. A number of the lots in this subdivision had a common boundary with Delphinium Way and other lots had a common boundary with Astelia Road. On that basis and relying upon s 159 of the Act, the plaintiff says the defendant is liable to contribute part of the cost of the construction of the two roads.
By reference to its re‑amended defence and various affidavits filed in support of the application, the defendant says the evidence is as follows. Cockburn Cement purchased Lot 81 in December 2017. By the sale date, Lot 81 had already been subdivided from Lot 82 (both originally together Lot 2) by Cockburn Cement as the plan of subdivision affecting the subdivision of Lot 2 had been indorsed by the WAPC on 14 December 2017. Prior to that date in August 2016 and November 2016, the relevant roads which were the common boundary to that part of Lot 2 which became Lot 81 (that is to say Delphinium Way and Astelia Road) had been constructed by the plaintiff. From the date of the construction of the roads, Lot 2 and subsequently Lot 81 had access to the roads. The plans of the plaintiff's land containing the northern and central part of the roads had been indorsed by the WAPC on 20 August 2017 and 17 January 2017 prior to the subdivision of Lot 2 into Lots 81 and 82. Moreover, the plaintiff's land containing the southern part of Delphinium Way was indorsed by the WAPC on 7 May 2018 - that is to say after the subdivision of Lot 2 into Lots 81 and 82.
On that basis the defendant summarises its position as follows. The plaintiff is the original subdivider in respect of Lot 39, Lot 38 and Lot 907. The plaintiff completed the construction of the roads on 9 August 2016 and 3 November 2016 respectively, from which time access to them was available to land on each side of the roads. Cockburn Cement is the latest subdivider in respect of that part of Lot 81 which has a common boundary to the roads and which in turn have a common boundary to the plaintiff's land. Therefore, at the date Cockburn Cement's subdivisional plan for Lot 81 was indorsed by the WAPC, Cockburn Cement was the proprietor of Lot 81, the roads were constructed and Lot 81 had a common boundary and access to the roads. Accordingly, if the plaintiff has any claim, it is a claim against Cockburn Cement and not against the defendant.
In response, the plaintiff says there are at least four triable issues. The first issue it identifies is the meaning of 'access' for the purposes of s 159 of the Act. In relation to this question, the plaintiff puts the position as follows. For a person to be a later subdivider for the purposes of s 159(1)(a)(i), three essential pre‑conditions imposed by the terms of the section must be satisfied. First, the person must have subdivided land into lots. Second, the lot must have a common boundary with an existing road. Third, there must be access from the subdivided land to the existing road. The term 'access' from the subdivided land to the existing road is an essential condition for liability under s 159 of the Act. There is no definition of the term 'access' in the Act and there has been no judicial consideration given to the meaning of the word as it is used in s 159.
The plaintiff says that it is arguable that the meaning of the word 'access' relates to approved vehicular access. In his written submissions, counsel for the plaintiff offered five broad reasons why that might be the case. First, it is said the whole point of subdivision under the Act is to create new lots and provide the necessary infrastructure to service them with the approval of the relevant planning authority. Second, the costs under s 159 are the costs of providing the land and the construction of the common road or its upgrade. Third, it cannot be said that a subdivider who does not have the approved right to access the road infrastructure - that is to say approval for a crossover or the like - could have legal 'access'. Fourth, the whole purpose of s 159 is to share the infrastructure costs when there is legal access. Without that, the costs could not be shared. Finally and contextually, access must mean vehicular access rather than pedestrian access which it is conceded (by implication) would have been available to Cockburn Cement.
In my view, the plaintiff's position is arguable. It is true that the plaintiff's position turns solely upon the definition of the word 'access' as it is defined in the Act. But it is not difficult to see how, given the plaintiff's approach, evidence as to access might be lead to allow the court to determine the meaning of the term in the context of the section and the aims of the Act. Once that point is reached, it is inappropriate to grant summary judgment.
Above I mention that the plaintiff said there were four triable issues. Having determined at least one of the issues is triable, it is strictly speaking unnecessary for me to refer to other grounds. However, for the sake of completeness, I should mention that the plaintiff contended it was arguable Lot 81 did not have 'access' to the roads. This, as I understand it, was based upon there being a fence between Lot 81 and the roads. It was also argued the defendant paid a premium when it acquired Lot 81 based upon the existence of the roads. That was said to in some way render the defendant liable to contribute to the cost of the roads. Finally, it was said a claim had arisen in respect of part of the roads fronting Lots 40 and 41. As I understand the position, that was conceded by the defendant. That meant if summary judgment had been granted, it would have been granted in respect of only part of the plaintiff's claim. Nonetheless, as was pointed out by the defendant, by far the bulk of the plaintiff's claim would have been removed if the summary judgment application had been successful.
In the circumstances, I will dismiss the defendant's application. The costs of the application, including reserved costs, ought be costs in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Court Officer
8 MARCH 2022