Higgins v Australian Capital Territory
[2020] ACTCA 56
•5 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
| Case Title: | Higgins v Australian Capital Territory | ||||||||||
| Citation: | [2020] ACTCA 56 | ||||||||||
| Hearing Date: | 5 November 2020 | ||||||||||
| Decision Date: | 10 December 2020 | ||||||||||
| Before: | Mossop, Loukas-Karlsson and Stewart JJ | ||||||||||
| Decision: | See [94] | ||||||||||
| Catchwords: | APPEAL – REAL PROPERTY – Restrictive covenants – | ||||||||||
| appellant owns land which adjoins a golf course – announcement | |||||||||||
| that owner of golf course land will seek approval to use land for | |||||||||||
| other purposes – appellant claims that the development of her land was part of a scheme of development – primary judge dismissed appellant’s claim against the respondent on a summary basis – found that the respondent was not a common vendor and | |||||||||||
| the threat of any breach of an obligation or duty by the respondent | |||||||||||
| these conclusions – he did – appeal allowed | |||||||||||
| was too remote – whether the primary judge erred in reaching struck out the appellant’s Statement of Claim and dismissed the | |||||||||||
| appellant’s claim against the respondent – erred in concluding on | |||||||||||
| a final basis that the respondent was not a common vendor – erred in concluding that the appellant’s prospects of being granted | |||||||||||
| relief were so remote as to warrant dismissal of the proceedings – re-exercise of discretion under r 425 of the Court Procedure | |||||||||||
| Rules 2006 (ACT) – appellant’s case not so lacking as to warrant dismissal – the respondent’s Notice of Contention provides no alternative basis for upholding the primary judge’s order – appeal | |||||||||||
| allowed – appellant granted leave to replead her Statement of | |||||||||||
| Claim | |||||||||||
| Legislation Cited: | Australian Capital Territory (Planning and Land Management) Act | ||||||||||
| 1988 (Cth), s 29 Court Procedures Rules 2006 (ACT), r 425 Planning and Development Act 2007 (ACT), s 11 | |||||||||||
| Cases Cited: | Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Browne v Flower [1911] 1 Ch 219 Cousin v Grant (1991) 103 FLR 236 Deguisa v Lynn [2019] SASCFC 107 Deguisa v Lynn [2020] HCA 39 Edwards v Santos Limited [2011] HCA 8; 242 CLR 421 Elliston v Reacher [1908] 2 Ch 374 Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd [1998] HCA 15; 193 CLR 154 | ||||||||||
| Re Dolphin’s Conveyance [1970] Ch 654 | |||||||||||
| Re Mack and the Conveyancing Act (1975) 2 NSWLR 623 | |||||||||||
| Specialist Diagnostic Services Pty Ltd (Formerly Symbion | |||||||||||
| Pathology Pty Ltd) v Healthscope Ltd [2012] VSCA 175; 41 VR 1 University of New South Wales v Moorhouse (1975) 133 CLR 1 | |||||||||||
| Texts Cited: | Bradbrook and MacCallum, Bradbrook and Neave's Easements and Restrictive Covenants (3rd ed, LexisNexis, 2011) Woolf and Woolf, Zamir & Woolf: The Declaratory Judgment (2nd ed, Sweet & Maxwell, 1993) | ||||||||||
| Parties: | Judith Higgins (Appellant) Australian Capital Territory (Respondent) | ||||||||||
| Representation: | Counsel | ||||||||||
| P Greenwood SC and R Arthur (Appellant) V Thomas and N Condylis (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Badgery & Rafferty Lawyers (Appellant) | |||||||||||
| ACT Government Solicitor (Respondent) | |||||||||||
| File Number: | ACTCA 13 of 2020 | ||||||||||
| Decision under appeal: |
| ||||||||||
| THE COURT: | |||||||||||
| Introduction |
1. This is an appeal from a decision of a judge of the Supreme Court who struck out the
appellant’s Statement of Claim and dismissed her claim against the Australian Capital
Territory (the respondent).
2. The appellant is the owner of land in the suburb of Nicholls which adjoins a golf course. She claimed that the subdivision and development of her land, the surrounding
residential blocks and the golf course were part of a “scheme of development”. A scheme
of development (or common building scheme) is a concept recognised in equity arising from the laying out, by a common vendor, of a subdivision, including the imposition of restrictions on the use of land so as to achieve some scheme of development. It has the effect of permitting enforcement in equity of restrictive covenants amongst purchasers of the land and between vendor and purchaser, even where the covenants have not been expressly annexed or expressly assigned: see generally Bradbrook and MacCallum, Bradbrook and Neave's Easements and Restrictive Covenants (3rd ed, LexisNexis, 2011) at [13.77]-[13.107]. Recently, the High Court has summarised the effect of the doctrine in Deguisa v Lynn [2020] HCA 39 at [11] as follows:
A common building scheme is constituted under the general law. It is sufficient for the purposes of this case to say that where a plaintiff and defendant each derive title to a lot from a common vendor of land laid out for sale in separate lots as part of a general scheme of development, the lots are sold subject to a covenant containing restrictions imposed upon all the lots for the benefit of all the lots, and the plaintiff and defendant (or their predecessors in title) have purchased their lots on the footing that the restrictions were for the benefit of the other lots in the general scheme, the plaintiff will in equity be entitled to enforce the covenant against the defendant.
(Footnote omitted)
3. The appellant’s claim against the respondent was dismissed on a summary basis
because the primary judge held that the respondent was not the common vendor of the land at the time the alleged scheme came into existence. Instead, his Honour concluded that the common vendor was a company which had been formed by the respondent and a private company for the purposes of carrying out a joint venture in relation to the development of the land. A second basis for dismissing the claim was that any threat of a potential breach of any duty or obligation on the part of the respondent was so remote that there could be no proper basis on which the court could exercise its discretion to grant relief against the respondent.
4. In our view, the primary judge erred in reaching both of these conclusions. It could not be firmly concluded on a final basis that the respondent was not the, or a, common vendor for the purposes of the alleged scheme of development. Further, it could not be said that the prospects of the appellant being granted relief were so remote as to warrant dismissal of the proceedings. By reason of these errors, the discretion under r 425 of the Court Procedures Rules 2006 (ACT) (CPRs) miscarried. The proceedings against the respondent ought not to have been dismissed. The appeal must be allowed and the order dismissing the proceedings set aside.
Background
5. In order to understand the subject matter of the appeal it is necessary to outline some of the pleaded background.
6. In 1993 the respondent entered a joint venture agreement between itself and Cygnet Corporation Pty Ltd (Cygnet). That joint venture agreement was also with a company called Harcourt Hill Pty Ltd (Harcourt Hill) which was the nominee of the joint venturers
for the purposes of the development of the “Harcourt Hill Estate”. As part of that process,
the Australian Capital Territory Executive granted to Harcourt Hill a holding lease over the relevant land and then further leases of the subdivided blocks for residential purposes and also for land which was to become a golf course.
7. Once the golf course was completed, Harcourt Hill transferred the lease of the golf course to Gold Creek Country Club Pty Ltd (GCCC), a corporation which it controlled. In about 1997 Harcourt Hill transferred control of GCCC to the respondent, which assumed responsibility for the golf course and associated country club. In 2006 the respondent granted a 99 year lease over the golf course land to Gungahlin Golf Investments Pty Ltd (GGI) for a sum of $2.75 million. In 2014 GGI surrendered the golf course lease to the respondent and was granted a further lease for the same purpose over the same land with the exception of one block.
8. The marketing of the residential blocks created by the subdivision of land commenced in 1994. The appellant purchased her block in July 2001 from Harcourt Hill. In August 2001 the appellant accepted the transfer of a Crown lease which, in common with other residential blocks sold as part of the development, was subject to restrictive development and building covenants. The appellant then constructed a dwelling on the property in accordance with plans approved by Harcourt Hill.
9. The appellant alleges that in April 2018 the owners of GCCC, “the Konstantinou Group”,
announced that they would move to a smaller golf course which would leave 49 ha of the existing course available for alternative uses including retail areas or housing. The appellant alleges that the Konstantinou Group then pursued a public campaign calculated to facilitate (a) a variation to the Territory Plan to permit the golf course land to be used for purposes other than a golf course and (b) a variation of the golf course lease to permit the golf course land to be used for purposes other than a golf course. The appellant alleges that this has had a detrimental effect on the market value of Crown leases in the Harcourt Hill Estate.
10. The appellant alleges that the Harcourt Hill Estate is, in equity, a scheme of development (or common building scheme), such that GGI has an obligation to the appellant and each other lessee of residential land in the Harcourt Hill Estate to use the golf course land as it has covenanted to do. She also alleges that the variation by the respondent of the lease granted to GGI to permit the golf course land to be used for a purpose other than that presently stipulated would be contrary to the scheme of development and derogate from the grant by the respondent of the lease to the appellant. The appellant also alleges that the use of the land by GGI for any purpose other than that presently stipulated would derogate from the grant by the respondent of the lease.
11. The appellant pleaded that GGI knew that its covenant to use the golf course land as a golf course was for the benefit of holders of residential leases.
12. At the hearing of the strike out application the appellant also provided to the primary judge an alternative pleading which alleged that the respondent had an obligation to grant leases of land to which the scheme applied on terms, and in a manner, which ensured that the grantee of the lease was aware of, and accepted, its obligations under the scheme and a further obligation not to permit variation of the scheme. She then pleaded that if GGI knew that its covenant to use the golf course land as a golf course was for the benefit of holders of residential leases, then it had an obligation to the appellant and each other lessee of residential land to use the golf course land as it had covenanted to do.
13. The relief claimed in the Originating Claim included a declaration that any use by GGI of the land for a purpose other than a golf course would be contrary to the scheme of development constituted by the Harcourt Hill Estate. The appellant also sought an
injunction against GGI and its servants or agents from “using, asserting an entitlement to use, announcing intention to use or seeking permission to use” its land for a purpose
other than a golf course.
14. So far as the respondent was concerned, a declaration was sought that the execution of
a variation of GGI’s Crown lease to permit its use for a purpose other than a golf course would derogate from the grant by the respondent of the appellant’s Crown lease. It also
sought an order restraining the respondent from executing a variation of the Crown lease to permit the use of the land for a purpose other than a golf course. The claim for relief
also included “Such other declarations or orders as the court considers appropriate”.
The judgment below
15. Separate applications had been filed by GGI and the respondent. The application by the respondent was pursuant to r 425(1)(a) of the CPRs. It sought the striking out of the claims for relief against the respondent and certain paragraphs of the Statement of Claim. It did not expressly seek the dismissal of the proceedings against the respondent, however r 425(3) provides considerable flexibility to the court as to the consequential orders that it might make. The primary judge dealt first with the application brought by GGI and then with the application brought by the respondent.
GGI’s application
16. In relation to the application by GGI, the primary judge set out a summary of GGI’s and the appellant’s submissions.
17. He then turned to consider what the essential elements of a scheme of development are. He referred to the decision of Miles CJ in Cousin v Grant (1991) 103 FLR 236 at 244-245 in which his Honour quoted the decision in Elliston v Reacher [1908] 2 Ch 374 (Elliston) at 384 which set out the matters that needed to be proved. They were:
1. That both the plaintiffs and the defendants derive title under a common vendor;
2. That previously to selling the lands to which the plaintiffs and the defendants are respectively entitled, the vendor laid out his estate, or a defined portion thereof (including the lands purchased by the plaintiffs and defendants respectively), for sale in lots subject to restrictions intended to be imposed on all the lots, and which, though varying in details as to particular lots, are consistent and consistent only with some general scheme of development;
3. That these restrictions were intended by the common vender to be and were for the benefit of all the lots intended to be sold, whether or not they were also intended to be and were for the benefit of other land retained by the vendor; and
4. That both the plaintiffs and the defendants, or their predecessors in title, purchased their lots from the common vendor upon the footing that the restrictions subject to which the purchases were made were to enure for the benefit of the other lots included in the general scheme whether or not they were also to enure for the benefit of other lands retained by the vendors.
18. His Honour then referred to the discussion of Peek J (with whom Hughes J agreed) in Deguisa v Lynn [2019] SASCFC 107 and the decision of the High Court in Forestview Nominees Pty Ltd v Perpetual Trustees WA Ltd [1998] HCA 15; 193 CLR 154 (Forestview). His Honour concluded (at [38]) that the elements of a claim to enforce a restrictive covenant forming part of a scheme of development are:
(1) The plaintiff must plead that the plaintiff’s land and that of the defendant derived from the title of a common vendor; (2) The plaintiff must also plead that before the sale of the land to the parties the vendor “laid out”, or planned for the subdivision of the land to be developed, for sale in lots which would be subject to restrictions intended to be imposed on all of the lots, and which although perhaps varying in details, are consistent only with some general scheme of development;
(3) It is also essential that the restrictions be for the benefit of all the lots intended to be
sold, whether or not they were to benefit other land retained by the vendor;(4)
It is necessary to assert that both the plaintiff and the defendant bought their land on the footing that the restrictions were to enure for the benefit of the other lots in the general scheme. It did not matter whether or not they were also to enure for the benefit of other land retained by the vendor; and,
(5) The plaintiff must plead that the defendant has evinced an intention to breach the
restriction applying to its land under the scheme.19. His Honour then went on to consider the particular criticisms made by GGI in light of this articulation of the elements that the appellant would be required to prove.
20. First, he addressed the issue of whether there was a common vendor. Although he identified a number of defects in the pleading he concluded (at [61]):
that there is an arguable claim that at the time when a scheme of development (assuming there was one) crystallised, the owner of the land which included both the land which was the subject of the intended golf course purposes clause and the land which included what became Block 34 of Section 123 of Nicholls was, Harcourt Hill Pty Ltd.
He therefore concluded that there was an arguable case that Harcourt Hill was the common vendor for a scheme of development in relation to the land owned by the appellant and GGI.
21. Second, he found that the contents of the holding lease, including its schedules and the attached deed, provided an arguable basis for the assertion that the second element of a scheme of development was made out.
22. Third, his Honour considered that the “elaborate and integrated nature of the planned subdivision”, apparent from the holding lease and its incorporated documents, provided
an arguable basis that the covenants for the use of the different parcels were intended
to be part of an overall scheme for the benefit of all lots.23. Fourth, his Honour found that the purchase of the land by the appellant subject to the covenants should be pleaded in greater detail, as should the assertion that the covenants were also for the benefit of the parcel containing the golf course. That was because reciprocity was essential for a scheme of development. His Honour found that there was an arguable basis for an assertion that GGI knew, or ought to have known, that it would be required to use the parcels for the purposes specified in the relevant Crown leases including for the benefit of the residential owners. However, that assertion had not been adequately pleaded nor had the parcels of land said to be subject of that burden.
24. Fifth, GGI’s intention to breach the restriction was adequately pleaded.
25. Sixth, his Honour accepted that the relief pleaded exceeded that which the court would entertain but said that that issue could be addressed given that he proposed to strike out the current pleading and give leave to replead. In particular, his Honour said that some consideration should be given to narrowing orders 1 and 2 that had been sought.
26. The end result of the application made by GGI was that the Statement of Claim was struck out and that the appellant had leave to replead a Statement of Claim against GGI within 28 days. A costs order was also made in favour of GGI.
The respondent’s application
27. In relation to the respondent’s application, his Honour outlined, in summary form, the
submissions made by the respondent and the appellant. His Honour then addressed the
issues that arose from those submissions.28. His Honour initially addressed the argument put on behalf of the respondent that the respondent was not the appropriate party to the proceedings and that instead the Planning and Land Authority (PLA), established under the Planning and Development Act 2007 (ACT) (PD Act), was the appropriate defendant. His Honour indicated that, had he considered that the appellant had a viable cause of action, then it would have been appropriate for the PLA to have been joined, as s 11 of the PD Act constituted the PLA as the agent of the respondent in relation to the granting of variation of leases. His Honour also indicated that he did not see the need to separately join the Australian Capital Territory Executive.
29. His Honour then indicated that the Statement of Claim should be struck out as disclosing no reasonable cause of action or basis for the relief claimed. His Honour considered three issues and found that two of those warranted the striking out of the claim.
30. The first was that he had earlier identified the common vendor as Harcourt Hill, not the respondent. As a consequence, the restrictive covenants in the GGI leases would not be enforceable against the respondent as the common vendor.
31. The second was that he accepted the submission of the respondent that the pleaded case in relation to the claimed derogation from grant fell short, because relief would only be available if the relevant grant was to enable the land to be used for a specific purpose and the action taken or proposed to be taken by the grantor would render the land unfit (or materially less fit) for that purpose ([81]). His Honour said that the expectation of the
appellant “that her property would enjoy the amenity of proximity to a golf course” ([87]) did not provide “an arguable basis for the ascertainment of the purpose for which her
crown lease was granted”([97]). His Honour referred to the decision in Specialist
Diagnostic Services Pty Ltd (Formerly Symbion Pathology Pty Ltd) v Healthscope Ltd
[2012] VSCA 175; 41 VR 1 (Specialist Diagnostic Services) in support of the proposition that it was necessary to determine with some precision the purpose for which the
grantee’s lease was granted and determine whether or not the grantor’s actions would in some substantial way disturb or disrupt the reasonable enjoyment of the grantee’s land. His Honour referred to the purpose of the appellant’s Crown lease being for a
single dwelling and that nothing proposed in relation to the redevelopment of the golf course would derogate from that purpose. His Honour said that the appellant would have to plead each fact which indicated that the purpose of the Crown lease was somehow expanded to include the use of the land with the relevant contiguous land being used only for a golf course. Ultimately, although he considered that the pleading was inadequate and doubted that a case could be pleaded and made out, it was unnecessary to reach a final conclusion as to whether or not there was an arguable basis for the cause of action because of his conclusions on the third issue.
32. The third issue was whether there was no basis for injunctive or declaratory relief
because the appellant’s proceedings were premature. His Honour referred to the appellant’s contention that she was suffering harm because the value of her land was
affected by the announced intention of the owners of GGI to seek to vary the use of the
land. His Honour said “that uncertainty is a very poor basis in my view on which to allege
an apprehended breach on the part of the Territory, assuming that it owed the plaintiff a
duty not to derogate from her lease as she submits” ([102]). His Honour identified that if
the appellant succeeded against GGI, any action against the respondent would have been futile. His Honour said that the potential breach of any relevant duty or obligation
owed by the respondent was “so remote that I can see no proper basis on which the
Court could exercise its discretion in favour of the applicant to grant the relief which she
seeks against the Territory (or the PLA should it be joined)” ([102]). His Honour indicated
that a degree of caution was required in exercising the power of the court to summarily dismiss the claim, but he was satisfied that the claim for injunctive and declaratory relief
against the respondent was “clearly untenable”.
33. The primary judge dismissed the appellant’s claim against the respondent and made a
costs order in favour of the respondent.
Notice of Appeal
34. The Amended Notice of Appeal dated 8 April 2020 contains three grounds of appeal:
a. His Honour erred in fact and law, in the context of an application to strike out paragraphs of the statement of claim and to dismiss the claim as disclosing no reasonable cause of action, in holding (at Reasons [96]) that, if there was a scheme of development, the restrictive use covenants in the Gungahlin Golf Investments leases are not enforceable as against the Territory because the common vendor in relation to the scheme was Harcourt Hill Pty Ltd and not the Territory, when:
i. it was pleaded that the Territory was a 50% participant in the joint venture to develop the Harcourt Hill Estate with Cygnet Pty Ltd; ii. on the evidence, the Harcourt Hill Estate was publicly promoted as a joint venture in which the Territory was a participant;
iii. it was pleaded that Harcourt Hill Pty Ltd, which was jointly owned and controlled by the participants, was the nominee of the participants for the purpose of the development of the Harcourt Hill Estate;
iv. on the evidence, Harcourt Hill Pty Ltd was formally appointed by the participants as their nominee and agent to conduct the joint venture including acquiring, holding, developing and disposing of the land the subject of the joint venture project;
v. as principal, whether disclosed or undisclosed, the Territory was bound by and liable for the actions of its nominee and agent; and
vi. the Territory shared in the profits of the joint venture derived from the sale of the land in the Harcourt Hill Estate.
b.
His Honour erred in law, in the context of an application to strike out paragraphs of the statement of claim and to dismiss the claim as disclosing no reasonable cause of action, in holding (at Reasons [96]) that, if there was a scheme of development, the restrictive use covenants in the Gungahlin Golf Investments leases are not enforceable as against the Territory because the common vendor in relation to the scheme was Harcourt Hill Pty Ltd and not the Territory, when:
i. no issue had been raised on the application before him as to the status of the Territory in relation to the pleaded scheme so as to enliven the court’s jurisdiction
to decide the point; and
ii. his Honour decided the point without first allowing the appellant the opportunity to address the court on the issue.
c. His Honour erred in law in holding, solely by reference to the remoteness of the “threat” of a potential breach of any relevant duty by the Territory, that the claim made by the plaintiff is premature such that there was no proper basis on which the Court could exercise its discretion in favour of the plaintiff (at Reasons [100-102]), when his Honour was required to do justice between the parties having regard to all the relevant circumstances of the case and failed to do so, in particular by not having regard to
i. the obligation of the Territory to maintain the amenity enjoyed by the plaintiff’s land, and its value derived from that amenity, whether by way of ensuring the
integrity of the scheme of development or fulfilling its grant of the lease to her;ii. the lack of any public statement by the Territory that it would not permit variation of the golf course lease to enable such redevelopment to occur;
iii. the injury to the plaintiff in the form of inability to sell her property at a value set by the scheme of development as the result of market uncertainty following the announcement of the intention to reduce the size of the golf course and to redevelop the available land for other uses; and
iv. the utility of the relief sought by the plaintiff in assisting to restore the confidence of the market.
35. The respondent filed a Notice of Contention dated 9 June 2020. That Notice of Contention contains the following grounds:
1. His Honour erred in finding, at [93] that, if the appellant did have an arguable cause of action which would enliven the power of the court to restrain the Territory from varying the purposes clause in the Crown lease referred to in paragraphs 3 and 4 of the Statement of Claim dated 20 June 2019 (the Statement of Claim), it would be
appropriate for the Planning and Land Authority (the PLA), as the respondent’s agent
to also be restrained.
2. His Honour should have found that there was no reasonable cause of action disclosed in the Statement of Claim to found the relief sought in paragraphs 3 and 4 of the Statement of Claim because:
(a) the respondent has no power or right to execute a variation to the Crown lease referred to in paragraphs 3 and 4 of the Statement of Claim; (b) the entity with power to vary the Crown lease referred to in paragraph 4 of the Statement of Claim is the PLA; (c) the Statement of Claim contained no allegation that the PLA was bound by the scheme of development alleged in the Statement of Claim; (d) there were no facts or matters pleaded in the Statement of Claim on which the PLA could be held to be bound by the alleged scheme of development. 3. His Honour should have found that, if the PLA was made a party to the proceedings, it would not be appropriate to restrain it from varying the purposes clause in the Crown lease referred to in paragraphs 3 and 4 of the Statement of Claim, because to do so would be inconsistent with its independent legal duty to carry out its functions in accordance with the objects set out in s 6 of the Planning and Development Act 2007 (ACT).
4. His Honour, consistent with the reasoning at [97] to [100], should have found that the
assertion of the appellant’s expectation of a certain amenity based upon the presence
of the golf course could not, on its own, provide the basis for a claim for the relief sought against the respondent based on a derogation from the grant of the Crown lease to the plaintiff.
36. It is convenient to first deal with the procedural fairness point raised in ground (b) of the Notice of Appeal, before turning to the two substantive points (grounds (a) and (c)) and then the matters raised in the Notice of Contention.
Appeal ground (b) – procedural fairness
Submissions
37. The Statement of Claim before his Honour alleged:
2. In 1993 the Territory entered into a joint venture agreement between itself and Cygnet Corporation Pty Ltd as participants, and Harcourt Hill Pty Ltd as their nominee for the
purpose of the development of the Harcourt Hill Estate (“the joint venture”) by: …
38. The appellant also pleaded at [24]a. of her Statement of Claim that “the Territory through
the joint venture established the Harcourt Hill Estate consisting of the residential land
and the golf course…”
Of this pleading the respondent’s written submissions before the primary judge said that
the proposition that the respondent established the Harcourt Hill Estate was, in light of what was pleaded at [2] of the Statement of Claim, contentious. Footnote 72 in the
respondent’s written submissions said:
Given what is pleaded at [2], this is contentious, to say the least. It is far more likely that Harcourt Hill Pty Ltd is the only entity that could be regarded as the common vendor. If so, then the doctrine has no application at all, because it was the Territory, not Harcourt Hill Pty Limited, that imposed the covenant in relation to the use of the land as a golf course. But as
that is not the way the case is put, the Territory accepts that this is a matter that is more
appropriate[ly] argued at a final hearing.
(Emphasis added)
40. It was in that context that his Honour (at [76] of his decision) said:
Footnote 72 to the written submissions, filed for the Territory, correctly in my view states that it was more likely that Harcourt Hill Pty Ltd was the only entity which could be regarded as the common vendor.
41. His Honour subsequently said (at [96]):
The scheme of development claim against the Territory depends upon the assertion that the
Territory was the “common vendor” at the time of the scheme came into being. For the
reasons given at [40]-[64] above I have concluded that if there is an arguable scheme of development here, the common vendor was Harcourt Hill Pty Ltd, not the Territory. It follows that the restrictive use covenants in the GGI leases are not enforceable as against the Territory as the common vendor.
42. On appeal, the respondent submitted that the issue was one which was “logically involved” in the applications before the primary judge and the appellant had ample
opportunity to advance any argument that she wished in relation to it. In support of this proposition it relied upon the reasons of Brennan J in Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 (Autodesk) at 308. It therefore submitted that his Honour was not precluded from determining the issue. However, the respondent did not point to anything in the transcript of the proceedings before the primary judge as indicating that the italicised statement in footnote 72 set out above was withdrawn or was the subject of discussion in a way that would have alerted the appellant to the need to have addressed that issue.
Decision
The respondent’s reliance upon the passage from Autodesk does not address the
situation that arises here. The relevant passage from the judgment of Brennan J is as
follows:It is desirable to add in the context of the present case a further observation about the opportunity to be heard. A court should not pronounce a judgment against a person on a ground which that person has not had an opportunity to argue (Pantorno v The Queen (1989) 166 CLR 466). However, a sufficient opportunity to argue a ground is given when the ground is logically involved in a proposition that has been raised in the course of argument before the court or is to be considered by the court as an unconceded step in determining the validity of a conclusion for which one of the parties contends (University of Wollongong v. Metwally [No.2] (1985) 59 ALJR 481 at p 483; 60 ALR 68 at p 71).
(Footnotes incorporated as text)
44. This passage does not address the circumstances of the present case in which there was a positive concession that the issue was one which ought to be left to trial. The respondent, a model litigant, made that concession and did not withdraw it at any stage
prior to his Honour’s decision.
45. In our view, having regard to the manner in which the issue was dealt in the respondent’s
written submissions before the primary judge, proceeding as his Honour did to find,
contrary to the concession in the respondent’s written submissions, that the appellant’s
contention was not arguable, involved a denial of procedural fairness. This ground of appeal is therefore made out. However, because of the nature of the question involved, whether or not this ground is of any consequence depends upon whether or not ground
(a) is made out, namely, whether or not the appellant’s contention that the respondent
was the, or a, common vendor is an arguable one.
Appeal ground (a) – common vendor
Submissions
46. The issue was whether or not the respondent could, for the purposes of the equitable doctrine, be considered to be a common vendor in circumstances where it was Harcourt Hill that transferred the relevant leases. The appellant relied upon the relationship between Harcourt Hill and the respondent established by the Joint Venture Agreement. She pointed to the terms of the Joint Venture Agreement, in particular the definition of
“Nominee” and “Participants” in cls 1.1, 2.3(b), 7.4 and 7.5.
47. The Joint Venture Agreement between the respondent, Cygnet and Harcourt Hill was executed at some stage in 1993. The agreement included the following definitions:
“Nominee” means Harcourt Hill Pty Ltd, as nominee and agent for the Participants;
“Participants” means the Territory and Cygnet, and “participant” means either of them;
48. Clause 2.1 recorded:
2.1 It is the parties intention to undertake the purposes described in this Clause to plan and develop the Land in accordance with the Deed of Agreement and the parties hereby agrees [sic] to use their best endeavours to complete that development in a timely and profitable manner. The Participants hereby enter into a joint venture for the purposes of:
(a) Acquiring the Holding Lease; (b) Carrying out the Works, including developing the Land in accordance with the Deed of Agreement; (c) Selling the residential land, the Golf Course and the Country Club, and the Hotel site; (d) Entering into the Project Documents and performing the obligations of the Participants and the Nominee under the Project Documents; (e) Such other matters as the Participants may agree, all as provided in this Agreement. 49. The Project Documents was defined to mean the Holding Lease, Deed of Agreement, Project Management Agreement and the Finance Instruments: cl 1.1. Each of the Holding Lease, Deed of Agreement and Project Management Agreement were attached to the Joint Venture Agreement.
50. Clause 2.3(b) provided that the liability of the respondent and Cygnet was “several and not joint unless … [they] incur or agree to incur a liability which is joint”.
51. Clause 7.4 provided:
7.4 The Nominee is hereby appointed nominee and agent of the Participants to:
(a) Take and hold the Holding Lease as nominee and agent of the Participants and as Joint Venture property; (b) Acquire and hold, as nominee and agent of the Participants, such other Joint Venture property as the Participants may from time to time direct; and (c) As nominee and agent of the Participants, enter into such of the Project Documents as the Participants may from time to time direct. 52. Clause 7.5 required that the Nominee would act solely in accordance with the decisions of the Participants made in accordance with the Joint Venture Agreement.
53. The Deed of Agreement (which was one of the Project Documents and was attached to
the Joint Venture Agreement) was a deed relating to “Estate planning” and “Estate development”. It included Annexure A1 which contained various planning documents
identifying the uses of land. These indicate that part of the function of the Nominee was to carry out a project which involved a carefully designed subdivision incorporating a residential golf course and other uses, substantially in accordance with a pre-existing scheme. It also demonstrates that many aspects of the implementation of the project
were subject to approval by the “Estate Manager” an employee of the respondent.
54. The Deed of Agreement also included Annexure A2, which contained “Special Project Conditions”, which included some specific requirements for landscaping of the golf course. Those requirements included that it be designed to “satisfy encircling estate needs for views, safety and solar access”: cl A2.2.8. It also included the following in
relation to the design of the golf course and country club (clause 2.5.2):
The development of the Estate shall centre on the golf course and country club as its major attraction.
…
Heavy emphasis must be placed on the course landscaping with consideration for the environment as well as being authentically [sic] pleasing.
It then contained a cross-reference to the clause relating to golf course landscaping.
55. In light of these provisions the appellant submitted that the express words of the Joint Venture Agreement endowed Harcourt Hill with actual authority as agent. This actual authority went beyond the ostensible authority engendered by the manner in which Harcourt Hill promoted the property. The appellant submitted that when Harcourt Hill transferred the residential lease to her it did so as agent for the respondent which granted the golf course lease to GGI. The appellant submitted that there need not be a single common vendor so long as the requisite intention is shared by the vendors and they are
acting in concert: Re Dolphin’s Conveyance [1970] Ch 654; Re Mack and the
Conveyancing Act (1975) 2 NSWLR 623 (Re Mack).
56. On this issue, the respondent submitted that Harcourt Hill’s agency did not extend to the
laying out and sale of the lots in question. Further, it submitted that the doctrine of
agency was not sufficient to “enable the Appellant to enforce the restrictive covenant
against the Respondent”.
Decision
57. In our view, it cannot be said that it is unarguable that the establishment of Harcourt Hill as the nominee of the joint venture partners was sufficient to constitute it, along with the respondent, as the common vendor.
58. In Re Mack Wootten J was dealing with a case in which two separate vendors had cooperated so as to dispose of their properties in a coordinated way, with most of them being subject to a covenant that only one residence could be erected on one lot. The plaintiff sought a declaration that a covenant over land owned by the plaintiff was not enforceable. One of the grounds was that there were two vendors rather than one vendor who sold properties as part of the building scheme. This submission was based upon what Parker J said in Elliston at 384. Parker J identified the requirements of a common building scheme as at [17] above. Of this, Wootten J said (at 629):
If the statement of Parker J. does authoritatively lay down four inflexible requirements to be mechanically applied in determining whether a building scheme exists, then the plaintiff has succeeded in negativing the existence of a building scheme. While the evidence is consistent with the existence of the other conditions laid down by Parker J., it does negative the existence of a common vendor, in as much as the origin of the restrictive covenants is traced to two vendors, Australian Securities Ltd. and Epping Estates Ltd.
Parker J. was not legislating, and if this requirement does exist it must be either because it rests on a rational foundation or because it is imposed, despite its irrationality, by some inescapable authority. I can see no rational foundation for saying that a building or development scheme can only be established by a single vendor and not by two or more acting in collaboration. In this very case it appears that the estate was created, and the subdivision into residential lots carried out, by two owners, Dwyer and Wooster, each of whom owned part of the land included. I can see no reason why they should not have been able, without bringing the land into a common ownership, to collaborate in creating a common building scheme for the whole estate, and why the courts should not support the legitimate expectations of those who bought lots on the faith of the restrictions in terms imposed on purchasers.
(Footnotes omitted)
59. The circumstances in Re Mack are distinguishable from the present in that here there was clearly a single vendor, Harcourt Hill. The significant point about Re Mack is that it emphasises that the Elliston statement of the requirements for a common building scheme are not factors to be inflexibly and mechanically applied. Rather, regard must be had to underlying principle in determining whether the requirements for a common building scheme are established.
60. In this case, it is not alleged that there were two separate owners of land that cooperated in the manner that occurred in Re Mack. Rather, the appellant contends that the involvement of Harcourt Hill as the nominee and agent of the joint venture parties was sufficient to constitute the respondent (along with Cygnet) as a common vendor of the land. Such a proposition is clearly arguable. There is no obvious reason why the fact that an entity chooses to act through a nominee and agent means that it may quarantine itself from equitable obligations which arise from the conduct of the nominee and agent. The more obvious starting point would be that, having participated in the sale of lots in what would otherwise be a common building scheme, the respondent would be treated as a, if not the, common vendor. The fact that it cooperated with another entity (Cygnet) in the carrying out of the scheme would not prevent it from being subject to equitable obligations arising from that scheme.
61. The respondent’s submission, that the extent of Harcourt Hill’s agency under cl 7.4 did
not extend to the layout and disposal of the blocks in the development, is difficult to understand. Under cl 7.4 the Nominee was obliged to enter into such of the Project Documents as the participants directed. The Deed of Agreement that was in evidence contemplated that it would be executed by Harcourt Hill and the company was, in fact, the holder of the Holding Lease at the heart of the development and disposal of the blocks. The evidence available at this stage indicates that the nominee of the joint venture held the Holding Lease, developed the land and then sold it. That process included determining the layout of the blocks within the framework provided by, and subject to approval of, the respondent. It is clearly arguable on the material available that, contrary to the submissions of the respondent, Harcourt Hill was the agent of the joint venture partners in carrying out all aspects of the development, including determining the layout of the blocks, developing and disposing of the land.
62. This ground of appeal is made out.
Appeal ground (c) – discretion to grant relief
Submissions
63. The submissions of the appellant in relation to ground (c) covered three different issues:
the respondent’s breach; injury to the appellant; and appropriate relief.
64. The appellant had indicated an intention to plead that the respondent had an obligation to grant leases in a way that ensured that the grantee was aware of its obligations under the scheme of development so that, if GGI was not sufficiently on notice of the scheme,
that lack of notice was caused by the respondent’s breach of that obligation. The
appellant submitted that either the respondent discharged its obligations, and GGI is bound by the scheme, or it did not. In either event, the appellant contended that the respondent remains obliged to uphold the scheme. It submitted that the primary judge assumed that the only relevant breach would be the execution of a lease variation for GGI in the future and hence a remote one, rather than recognising the potential for there to have already been a breach by the respondent.
65. In relation to the injury to the appellant, she had pleaded that she had entered into the contract and accepted the Crown lease with the expectation that she and her family would enjoy the leased land with an amenity enhanced by the proximity of the golf course and the high standard of residential development required by the Deed of Agreement. The appellant submitted that although amenity was the focal point of a scheme of development, it is the resultant increased value of the land that is the real purpose of such a scheme: Forestview at [6]; Elliston at 384-385. The appellant had pleaded that the announcement by GGI had a significant effect on the market value of her land. The appellant contended that his Honour related the alleged drop in value of her land to the potential breach involved in the execution of a variation, rather than to the failure by the respondent to take any action to remedy its past breach of its obligations to the appellant if it had failed to ensure that GGI was also bound by the scheme.
66. So far as the appropriate relief was concerned, the appellant, while not abandoning her claim for an injunction, accepted that it may be sufficient protection for there to be a
declaration of the appellant’s rights against the respondent and GGI. She submitted that
she has pleaded that she is presently suffering harm as a result of GGI’s announced
intentions, as well as the failure by the respondent to take any steps to contradict that intention and hence ameliorate that harm. She provided an alternative formulation of a
declaration which she submitted would “have utility in restoring confidence of the market
in the values of residential land in the Harcourt Hill Estate”.
67. The appellant also submitted that it was inappropriate to focus upon the formulation of the terms of possible declarations sought against the respondent. That is because there were at least three possible outcomes: GGI was bound into the scheme (in which case the primary remedy would be against GGI not the respondent); GGI was not bound into the scheme but the respondent was bound to refuse to permit residential development (which might give rise to a cross-claim between GGI and the respondent for damages or rescission); GGI was not bound into the scheme and the respondent cannot prevent GGI from varying the Crown lease (in which case the remedy would probably be against the respondent in damages rather than declaratory relief). The appellant submitted that she has an arguable case that the respondent was a common vendor of the scheme and an
arguable case of damage in relation to the loss of value arising from GGI’s situation and
intentions. She submitted that, in those circumstances, the trial should be allowed to
proceed.68. The respondent noted that the appellant’s submissions were now confined to supporting
a claim for declaratory relief and that no argument is advanced in relation to the claim for injunctive relief against the respondent. It pointed out that the appellant had not advanced any argument in support of the declarations sought in the Statement of Claim but rather has formulated a new one which was provided with her written submissions. The respondent submitted that the new declaration removed any reference to future conduct on the part of the respondent. The respondent submitted that the case was a hypothetical one because it related to future acts which may never occur at all. It pointed to the administrative hurdles that GGI would need to overcome, the fact that no application to vary the Crown lease had been made and nor did the respondent have any intention to vary the Territory Plan. It also submitted that a declaration should not be made if it is divorced from the facts or only as to whether a party is generally entitled
to act in a certain way. It submitted that the appellant’s new declaration does not refer
to any specific matters that would be permitted or prohibited by the scheme of
development.69. The respondent submitted that GGI is bound by contract and statute to use the land for an 18-hole golf course and not for any other purpose. It submitted that the declaration sought would have no utility in declaring that the same obligation also arises by reason of the scheme of development. Further, it submitted that the declaration, if made, would not quell the true controversy between the appellant and the respondent, having regard to the fact that it refers generally to the use of the land as a golf course rather than a golf course of a particular length.
70. So far as the new proposed declaration is concerned, the respondent submitted that there was no arguable legal basis for the asserted obligation upon the respondent to ensure that the golf course land was used only in accordance with the golf course land use restriction. The respondent also submitted that because the new declaration simply sets out the current legal position arising from contract and statute, and does not identify what the respondent may or may not do in future, it would not do anything to restore confidence in the market for the properties adjoining the golf course.
Decision
71. In Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 the majority identified
(at [48]) that the difference “between an advisory opinion and a declaratory judgment is
the fact that an advisory opinion is not based on a concrete situation and does not
amount to a binding decision raising a res judicata between parties”. Their Honours
quoted with approval from Woolf and Woolf, Zamir & Woolf: The Declaratory Judgment
(2nd ed, Sweet & Maxwell, 1993) at 132 to the effect that:If… the dispute is not attached to specific facts, and the question is only whether the plaintiff
is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally.
72. In University of New South Wales v Moorhouse (1975) 133 CLR 1 Gibbs J at 9-10 described the width of the power to make declaratory orders. He described it as wide but not unlimited. He indicated that, as a general rule, the power to make a declaration will not be exercised when the court is called upon to answer a question that is purely hypothetical. In that case he described the declaration that a breach of copyright had
occurred as resting “purely on the basis of hypothesis” and, along with other members
of the court, found that the declaration had been wrongly made.
73. In Edwards v Santos Limited [2011] HCA 8; 242 CLR 421 (Edwards) Heydon J, with whom the other members of the court agreed on this point, recognised that the jurisdiction to grant a declaration includes a power to declare that conduct which has not yet taken place will not be in breach of a law or will be a nullity at law: [37]. The respondents in that case had indicated an intention to take steps which relied upon the validity of an Authority to Prospect issued under Queensland legislation. The appellants were found to have a sufficient interest to make claims for declarations about the validity
of the Authority to Prospect “because success in those claims would advance their interests in the negotiations which the parties were contractually obliged to conduct”. The court found that a declaration “would produce foreseeable consequences for the
plaintiffs and the petroleum defendants by allowing them to continue the process of negotiating the new [Indigenous Land Use Agreement] armed with the knowledge of the
correct legal position in relation to the [Authority to Prospect]”; [37].
74. In our view, the primary judge erred in concluding that the claim for declaratory relief was so remote and speculative as to require that the claim be struck out and the proceedings be dismissed.
75. The absence of any proposal by the respondent to vary the lease and the absence of any present intention to vary the Territory Plan, are clearly matters which will need to be take into account in determining whether to grant a declaration. However, those circumstances cannot at this stage be said to only permit the conclusion that no relief would be granted.
76. One of the submissions of the respondent was that, in order for there to be a variation of the lease or a variation to the Territory Plan, numerous administrative steps would need to be taken. The respondent relied upon these steps to indicate that the prospect of any variation of the lease or the Territory Plan was so remote as to deny the utility of declaratory relief. However, the existence or otherwise of a scheme of development binding upon the respondent would be a matter of significance to any administrative process associated with either a variation to the Territory Plan or the consideration of any development approval under the PD Act. Although no defence has been filed, it may be inferred from the position adopted so far in these proceedings that the respondent does not accept that any obligations established under the alleged scheme of development are binding upon it. While the determination of the existence of a scheme
of development will not answer all of the issues that might arise as a result of GGI’s
proposal to redevelop part of the golf course, it would be a consideration which would have the potential to affect, in a variety of ways, that process. The submissions of the respondent did not demonstrate that the existence of an equitable obligation arising out of a scheme of development would not be a relevant consideration for the purposes of a series of steps along the way to a change of use of the golf course land required by the PD Act:
(a) considering whether to embark upon the preparation of a draft Territory Plan variation; (b) the consideration of that draft Territory Plan variation by the relevant Minister or the Legislative Assembly; and (c) the consideration by the PLA of whether to approve a variation of GGI’s lease. On the contrary, it may be significant for the various decision-makers to take into account the existence of an equitable obligation on the part of the respondent if such an obligation is found to exist. In a manner analogous to the position of the appellant in Edwards, a declaration as to the existence of an equitable obligation binding on the respondent
would advance the appellant’s interests in, or in relation to, any statutory process
following from GGI’s pursuit of its stated intentions.
77. It is not necessary, for present purposes, to determine the exact form of any possible declaration that may be granted. However, it cannot be said that the prospect of the making of a declaration concerning the equitable obligation to comply with the alleged scheme of development is so remote a prospect as to warrant the proceedings being struck out.
78. In the appellant’s submissions in reply she also raised the prospect of a possible claim
for damages if, ultimately, the position was that the respondent had failed to give effect to the scheme of development when issuing the 2006 or 2014 leases to GGI. This is a matter that appears to have been raised for the first time in the Court of Appeal. The basis upon which any claim for damages might be made was not articulated. As it has been concluded that his Honour erred in the manner in which he dealt with the claim for declaratory relief, it is undesirable to attempt to address the possible viability of such a claim.
79. This ground of appeal is made out.
Notice of Contention ground 1, 2 and 3 – role of the PLA
Submissions
80. The respondent contended that the primary judge erred in finding that it would be appropriate for the PLA to be joined as a party to the proceedings. The respondent submitted that the fact that conduct of the PLA binds the respondent does not mean that any conduct on the part of the respondent binds the PLA. It submitted that the PLA, which has power to vary the Crown lease, has no obligation to comply with a direction of the respondent to vary or refrain from varying a Crown lease.
81. The appellant drew the distinction between the planning functions of the PLA under the PD Act and the land management functions under that Act. The latter are carried out
“on behalf of the Executive”, which picks up the obligations of the Australian Capital
Territory Executive under s 29 of the Australian Capital Territory (Planning and Land
Management) Act 1988 (Cth) (PLM Act).
Decision
82. The approach taken by the primary judge was correct. It was not appropriate to attempt to determine, at this stage, the consequences of a significant number of planning functions being purportedly statutorily delegated by the Australian Capital Territory Executive to the PLA. If the ultimate result of the proceedings was that the scheme of development remained binding upon the respondent, whether or not it would be appropriate to make any declaration that also bound the PLA would depend upon the
court’s ultimate conclusions about the relationship between the statutory regime for the
administration of estates, planning, development control and equitable obligations binding upon the respondent. That may require consideration of the effectiveness of the investiture by the PD Act of functions which under the PLM Act are made the responsibility of the Australian Capital Territory Executive. The determination of these issues is not appropriate at an interlocutory stage when the respondent has not even been required to plead to the claim.
Notice of Contention ground 4 – derogation from grant
Submissions
83. The respondent contended that the primary judge ought to have found that the appellant had no arguable cause of action in relation to a derogation from its grant. It referred to the statement in Browne v Flower [1911] 1 Ch 219 (Browne) at 225 that:
… if the grant or demise be made for a particular purpose, the grantor or lessor comes under
an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit, or materially less fit for the particular purpose for which the ground or demise was made.
84. The respondent submitted that the mere expectation on the part of the appellant that the amenity of the land would be enhanced by proximity to the golf course fell far short of what was required to support a claim based upon non-derogation from grant.
85. In oral submissions counsel for the respondent made the additional submission that the
appellant’s claim based upon non-derogation of grant could not be made against the
respondent because, in fact, the Crown in right of the Commonwealth was the lessor.
86. The appellant submitted that her pleadings are sufficient to give rise to an inference that, at the time when the transaction was entered into, she should be able to use the land for residential purposes, enjoying an amenity enhanced by the existence of a golf course on the adjacent land. In those circumstances she said it is at least arguable that there was
a grant of land for a sufficiently “particular purpose” so that the use of the adjoining land
for something other than a golf course would derogate from the grant.
Decision
87. The primary judge found that the pleading by the appellant was inadequate but that he did not ultimately need to determine whether there could be an arguable case of derogation from grant because of his conclusions in relation to the prematurity of the claim for a declaration.
88. In our view, it cannot be said that such a claim was necessarily unarguable, warranting its dismissal rather than repleading. In Specialist Diagnostic Services, having quoted from the decision in Browne, the Victorian Court of Appeal said (at [109]-[110]):
109. The scope and extent of the obligation not to derogate from grant is to be determined by the surrounding circumstances and the provisions of the leases themselves. It will vary with the purposes for which it is imposed.
110. The trial judge held correctly that:
“In order to establish that the obligation has been breached, it must be
established that the disturbance or disruption in breach of the obligation is
“substantial”, though the law does not now insist on “practical frustration” of the
purpose of the lease. Further, the obligation has been applied in circumstances where there has been no direct physical impact or interference with the leased
premises.”
(Footnotes omitted)
89. In the absence of any specific action on the part of the respondent to change the terms
of the Territory Plan or to grant a variation of GGI’s lease, it may ultimately be difficult for
the appellant to establish any derogation from grant. However, whether or not this is the case will depend upon the facts that are found. There appears to be evidence at this stage of the proceedings indicating that it is not simply a matter of asking, as the respondent suggests, whether the house on the property can still be used for residential purposes. The planning controls in place were very specific as to how the residence was required to be oriented and the nature of the fencing that was required between residential premises and the golf course. Whether or not the use of adjoining land for purposes other than a golf course would amount to a derogation from grant is something which would need to be determined when the facts are determined on a final basis.
90. That conclusion is reinforced by the fact that, although a separate claim, it is unlikely to add anything of significance to the scope of the proceedings as it will involve only some additional submissions on a discrete subsidiary issue. Further, if the respondent wishes to pursue the submission that the Commonwealth, rather than it, would be liable in relation to any claim of derogation from grant, then that would raise an important question about the nature of the relationship between the Australian Capital Territory Executive and holders of Crown leases in the Territory arising by operation of s 29 of the PLM Act. It is certainly not an issue that should be determined on a summary basis.
Re-exercise of discretion
91. Having regard to the conclusions reached above that the primary judge erred:
(a)
in concluding on a final basis that the respondent was not a common vendor; and
(b)
that the prospect of the appellant being granted declaratory relief was so remote that there could be no proper basis upon which the appellant could be granted relief,
it is necessary to re-exercise the discretion under r 425 of the CPRs.
92. For the reasons given above in relation to grounds (a) and (c) in the Notice of Appeal,
the appellant’s case was not so lacking in substance as to warrant summary dismissal.
Further, for the reasons given above, none of the matters raised in the Notice of
Contention provide an alternative basis for upholding the primary judge’s order
dismissing the proceedings against the respondent. In those circumstances, the proper
exercise of discretion does not involve dismissal of the appellant’s claim against the
respondent.
| Costs | |
| 93. | The appellant has been successful on appeal and should have her costs of the appeal. So far as the costs of the application before the primary judge are concerned, on the one hand, the substantive contentions advanced by the respondent below have not been established as a proper basis upon which to dismiss the proceedings. On the other hand, the appellant has not appealed against the order striking out the pleading and, during the course of the application and appeal, appears to have accepted that the claim against the respondent ought to be repleaded. In those circumstances, the appropriate order in relation to the application before the primary judge is that there be no order as to costs as between the appellant and the respondent. |
Orders
94. The orders of the Court are:
1. Appeal allowed.
2. Order 2 made on 7 February 2020 is set aside and in its place the following
order made: “The plaintiff has leave to replead her Statement of Claim against
the first defendant.”
3. Order 4 made on 7 February 2020 is set aside and in its place the following
order made: “There is no order as to the costs of the first defendant’s Application
in Proceeding dated 26 August 2019.”4. The proceedings in the Supreme Court are to be listed for directions before the Registrar on a date fixed by the Registrar.
5. The respondent is to pay the appellant’s costs of the appeal.
I certify that the preceding ninety-four [94] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Loukas-Karlsson and Justice Stewart.
Associate:
Date: 10 December 2020
Key Legal Topics
Areas of Law
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Property Law
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Administrative Law
Legal Concepts
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Appeal
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Judicial Review
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Statutory Construction
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Natural Justice
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