Everswell Pty Ltd v Beeliar Management Pty Ltd as trustee for Beeliar Development Trust

Everswell Pty Ltd initiated legal proceedings against Beeliar Management Pty Ltd, acting as trustee for the Beeliar Development Trust, before the Supreme Court of Western Australia. The plaintiff sought recovery of costs related to road construction under section 159 of the Planning and Development Act 2005 (WA). The case turned on the defendant's application for summary judgment, which was ultimately dismissed by Master Sanderson. The defendant had sought an extension of time to bring the summary judgment application, which was granted. However, the court found that the application should be dismissed on its merits. The plaintiff claimed that the defendant was liable to contribute to the costs of constructing roads that had a common boundary with lots owned by the defendant. The defendant argued that the roads were already constructed and accessible prior to its acquisition of the property, and therefore, the plaintiff's claim should be against the previous owner, Cockburn Cement, rather than itself.

The court examined the meaning of "access" under section 159 of the Planning and Development Act 2005 (WA), which was not defined in the Act and had not been judicially interpreted. The plaintiff argued that "access" should be interpreted as "approved vehicular access," a position the court found to be arguable. The court determined that the issue of the meaning of "access" was a triable issue that required evidence and judicial interpretation. Additionally, the plaintiff raised other potential triable issues, including whether Lot 81 had "access" to the roads and whether a claim existed in respect of part of the roads fronting Lots 40 and 41. The court concluded that at least one triable issue existed, making it inappropriate to grant summary judgment. Consequently, the defendant's application for summary judgment was dismissed, and the costs of the application, including reserved costs, were to be costs in the cause.