Higgins v ACT (No 2)

Case [2024] ACTSC 400


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Higgins v ACT (No 2)

Citation: 

[2024] ACTSC 400

Hearing Date: 

17 October 2022 – 21 October 2022

Decision Date: 

16 December 2024

Before:

McWilliam J

Decision: 

(1)    On or before 14 February 2025, the parties are to bring in agreed or competing short minutes of order to give effect to these reasons. 

(2)    The matter is listed at 9:30am on 20 February 2025 to deal with the question of final relief and costs. 

Catchwords: 

EQUITY – Leases – scheme of development – whether common vendor – whether reciprocity of obligations established – whether any scheme enforceable against a lessee that was years later in time and without notice on title

EQUITY – Non-derogation from grant – whether Territory (and statutory authority) under obligation not to permit the use of golf course land in a way that would render the plaintiff’s land materially less fit for the purpose for which the lease was granted

CONSUMER LAW – Misleading and deceptive conduct – whether representations made about use of land for a golf course were based on reasonable grounds

Legislation Cited: 

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) ss 6(1)(g), 27, 28, 29, 29(1), 30, 30(2)

Australian Capital Territory (Self-Government) Act 1988 (Cth) pt V, ss 7, 36,

Competition and Consumer Act 2010 (Cth) Sch 2, ss 4, 18, 236

Conveyancing Act 1919 (NSW) s 89(1)

Land Titles Act 1925 (ACT) s 58, 58(1), 58(2), 59

Legislation Act 2001 (ACT) ss 183, 184

Planning Act 2023 (ACT) ss 16, 17, 262

Planning and Development Act 2007 (ACT) (repealed) ss 10(1), 10(3), 11, 13, 14, 237

Real Property Act 1886 (SA) s 69

Seat of Government (Administration) Act 1910 (Cth) s 9

Trade Practices Act 1974 (Cth) ss 51A, 52, 82

Cases Cited: 

Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1

Austerberry v Corporation of Oldham (1885) 29 Ch D 750

Aust-One Investment Pty Ltd v New World Investments Pty Ltd [2023] NSWCA 22; 111 NSWLR 39

Baxter v Four Oaks Properties Ltd [1965] Ch 816

Browne v Flower [1911] 1 Ch 219

Brunner v Greenslade [1971] Ch 993

Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592

Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; 238 CLR 304

Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45

Chatsworth Estates Company v Fewell [1931] 1 Ch 224

Cousin v Grant (1991) 103 FLR 236

Deguisa v Lynn [2020] HCA 39; 268 CLR 638

Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317

Elliston v Reacher [1908] 2 Ch 374

Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd [1998] HCA 15; 193 CLR 154

Gosford RSL Club Ltd v Gosford Race Club Ltd (Unreported, Supreme Court of New South Wales, Bryson J, 18 December 1997)

Gosford RSL Club Ltd v Gosford Race Club Ltd [1998] NSWCA 96

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Higgins v ACT (No 2) [2024] ACTSC 400
Case
[2024] ACTSC 400
Decision Date

CaseChat Overview and Summary

The case of Higgins v ACT (No 2) involved the plaintiff, Mr Higgins, challenging the Australian Capital Territory (ACT) over the use of land leased to him for residential purposes. The dispute arose from the ACT's intention to alter the use of adjacent land, originally intended for a golf course, to a commercial development. The ACT Supreme Court was tasked with determining whether the ACT had equitable obligations regarding the use of the golf course land and whether it had engaged in misleading and deceptive conduct by representing that the land would be used for a golf course.

The primary legal issues before the court were whether there existed a common vendor situation, establishing reciprocity of obligations, and if any scheme could be enforceable against a lessee who was years later in time and without notice on title. Additionally, the court had to decide if the ACT, under equity's principle of non-derogation from grant, was obligated not to permit the use of the golf course land in a way that would render Mr Higgins's land materially less fit for the purpose for which the lease was granted. Furthermore, the court needed to determine if the ACT's representations about the use of the land for a golf course were based on reasonable grounds and if they constituted misleading or deceptive conduct under consumer law.

The court found that there was no common vendor situation or reciprocity of obligations that would establish an enforceable scheme against Mr Higgins. It was also determined that the ACT was not under an obligation not to permit the use of the golf course land in a way that would render Mr Higgins's land materially less fit for the purpose for which the lease was granted. Regarding the consumer law issue, the court concluded that the ACT's representations were not based on reasonable grounds and did constitute misleading and deceptive conduct. The court ordered that the parties bring in agreed or competing short minutes of order by 14 February 2025 and listed the matter for 20 February 2025 to address final relief and costs.

Orders

Orders of the court

(1) On or before 14 February 2025, the parties are to bring in agreed or competing short minutes of order to give effect to these reasons.

(2) The matter is listed at 9:30am on 20 February 2025 to deal with the question of final relief and costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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