Glorrick Pty Ltd as trustee v Chief Executive, Department of Transport and Main Roads

[2012] QLC 61

LAND COURT OF QUEENSLAND

CITATION:

Glorrick Pty Ltd as trustee v Chief Executive, Department of Transport and Main Roads [2012] QLC 61

PARTIES:

Glorrick Pty Ltd as Trustee of the Younland Unit Trust
(applicant)

v.

Chief Executive,
Department of Transport and Main Roads
(respondent)

FILE NO:

AQL701-12

DIVISION:

General Division

PROCEEDING:

Application for hearing of a preliminary point

DELIVERED ON:

29 October 2012 [Ex tempore]

DELIVERED AT:

Brisbane

HEARD AT:

Brisbane

MEMBER:

Mr PA Smith

ORDERS:

1.   The application for determination of a preliminary point is dismissed;

2.   The respondent pay the claimants costs of and incidental to the application on the standard basis, such costs to be agreed or, failing agreement to be assessed by a costs assessor of the Supreme Court;

3. The costs Order in Order 2 hereof, specifically excludes those costs otherwise incurred in preparation for and attendance at the directions hearing held conjointly with the application; and

4. Pursuant to s.34(3) of the Land Court Act 2000 Order 2 hereof may be made an Order of the Supreme Court and enforced in the Supreme Court.

CATCHWORDS:

PRACTICE AND PROCEDURE – Application for determination of a preliminary point – no agreed evidence – no indication of saving of cost and time – application premature

Acquisition of Land Act 1967

Reading Australia Pty Ltd v. Australian Mutual Provident Society and Anor (1999) 217 ALR 495

APPEARANCES:

Mr O’Brien for the applicant
Mrs Pollard for the respondent

SOLICITORS:

Nicholsons Solicitors for the applicant
Clayton Utz for the respondent

[During the course of the first directions hearing in this matter, (which is a claim for compensation pursuant to the Acquisition of Land Act 1967) the respondent made an oral application that a preliminary point be heard by the Court. The order that the respondent proposed was as follows[1]:

[1]     Proposed order handed up in Court by Mrs Pollard for the respondent on 29 October 2012

“The matter be set down for a preliminary hearing on            to determine the following

issue:

‘Whether Kleenmaid Pty Ltd as trustee for the Orchard Unit Trust, the lessee of

Lot 6 on RP889438, was solvent at the date of resumption’”

Both parties attended the directions hearing prepared to ague whether or not the above order should be made. Accordingly, despite the lack of formality and notice, the Court agreed to hear argument on the proposed order. Ex tempore reasons were then delivered.]

Background

1. I have mixed views as to the utility of preliminary points. Probably back in the days I practised I used to see great utility in them, but a few unpleasant instances in the High Court helped dissuade me in that view somewhat[2]. I remain however, concerned about the costs to which all sides are put to in litigation, and whenever there is an instance where the determination of a clear and distinct preliminary point which will totally or substantially resolve the litigation, (particularly on agreed facts) can be done, then I am usually very keen to adopt that course.

   [2]     No disrespect is meant to the High Court in any way. Rather, I learnt the folly of expending huge amounts of time and money on the determination of preliminary points which did little (if any at all) to resolve the substantive issues.

2. This case troubles me in this respect:  that the preliminary point (particularly the articulation of it that I have heard today) appears to be one which is relatively discrete when it comes to the normal determination of an acquisition case,  and so that does mitigate in favour of having this point determined, if it would save the need, perhaps, for a hearing to be held as to the quantification of the substantial losses claimed by the claimant in this case, if indeed Mrs Pollard's side was successful at the end of the day.

3. My concern, though, is that, at this stage, there are insufficient agreed facts between the parties. There is a lack of clarity as to the precise nature of the question, and also lack of precision as to precisely how that question would necessarily result in the determination of a significant issue in the case. In the circumstances, particularly taking into account the reasoning set out in Reading Australia Pty Ltd v. Australian Mutual Provident Society and Anor[3], I am not prepared to allow a preliminary question to be determined by this Court at this stage.

   [3] (1999) 217 ALR 495

4. I specifically mention "at this stage" because of my reservations about the nature of the claim and the nature of what appears to be potentially a discrete argument between the parties. I have a fear that the parties will not reach a position where there will be sufficient agreed facts between them that would allow an easily determinable preliminary point. That would not necessarily be fatal to a further application to hear this preliminary point, but at least further affidavit evidence would be required, showing the nature of the dispute, the evidence required to be heard from Directors, and the approximate time that that evidence would take as part of the preliminary determination as opposed to the total length of time that a hearing of all issues would take in this matter, including both its preliminary point and the assessment of damage on essentially the additional lease charges, which makes up by far the highest component of the claim.

5. In those circumstances, I am of the view that it is appropriate to make orders generally in the sort of those sought by Mr O'Brien for the applicant. However, I also consider that additional work may be done by the respondent, if it so chooses, to further work up the basis of an application for a preliminary point and for that application, if it is to be made anew, to be brought in a formal sense before the Court after the steps that Mr O'Brien has set out have been concluded.

6. In short, while I do see some overall merit in the application brought by the respondent, at this stage, lack of precision exists as to the fundamental elements required for the determination of an application allowing a preliminary point to be heard. The application cannot be granted today on the basis of the current material.

7. I Order, accordingly, that the application for hearing the preliminary point be dismissed.

[The applicant subsequently sought an order that the respondent pay the applicants costs of the application for the hearing of a preliminary point. The basis for the application was that the application was premature, misguided and had been dismissed.[4] The application for costs was opposed[5] on the basis that the parties were present for a directions hearing and that the application was merely incidental. The Court granted the application for costs.]

[4]     See Transcript p1-17 lines 5-7

[5]     See Transcript p1-17 lines 12-14

Orders

1. The application for determination of a preliminary point is dismissed;
2. The respondent pay the claimants costs of and incidental to the application on the standard basis, such costs to be agreed or, failing agreement to be assessed by a costs assessor of the Supreme Court;
3. The costs Order in Order 2 hereof, specifically excludes those costs otherwise incurred in preparation for and attendance at the directions hearing held conjointly with the application; and
4. Pursuant to s.34(3) of the Land Court Act 2000 Order 2 hereof may be made an Order of the Supreme Court and enforced in the Supreme Court.

P A SMITH

MEMBER OF THE LAND COURT