Hutson v Nerang Subdivision Pty Ltd and ors - [2021] QSC 323

SUPREME COURT OF QUEENSLAND

CITATION:

Hutson v Nerang Subdivision Pty Ltd & ors [2021] QSC 323

PARTIES:

ROBERT HUTSON IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF NANCY ULLMAN LOESKOW

(applicant)

v
NERANG SUBDIVISION PTY LTD ACN 129 469 254

(first respondent)

and

KANAYA HOLDINGS PTY LTD ACN 098 864 905

(second respondent)

and

PACIFIC VIEW FARM (QUEENSLAND) PTY LTD ACN 114 561 081

(third respondent)

FILE NO/S:

BS 12466 of 2021

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

7 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2021

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1. The proceeding be stayed until the determination of the dispute referred to in the first and third respondents’ solicitor’s letter to the President of the Queensland Law Society dated 15 November 2021 pursuant to clause 12 of the Development Deed and clause 18 of the Development Lease (as those expressions are defined in paragraph 1 of the Originating Application (CFI 1)).

2. The applicant pay the first and third respondents’ costs of the application.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the applicant, first respondent and second respondent entered into a development deed – where the development deed contemplated entry into a development lease including with the third respondent – where the applicant seeks directions that the form of contract proposed by the respondents is not consistent with the terms of a development deed and development lease – where the applicant seeks a declaration in the alternative that a tenant under the development lease is not entitled to a 10% increase in the amount payable to the tenant

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – whether the proposed form of contract to be used for the sale of lots to third parties that has been proposed by the first and second respondents is consistent with the terms of the development deed and development lease – whether the directions sought should be made or whether the proceeding should be stayed and determined by an expert

Hooks Enterprises Pty Ltd v Sonnenberg Pty Ltd [2018] 1 Qd R 116, considered

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, cited

Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, considered

Re: Tooth & Co Limited (1978) 31 FLR 314, applied

Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563, considered

1144 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd (2009) 26 VR 551, cited

COUNSEL:

M May for the applicant
B O’Donnell QC with S Russell for the respondents

SOLICITORS:

Cooper Grace Ward for the applicant
Mills Oakley for the respondents

The present application requires the Court to determine whether a dispute, the subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QSC 323
Decision Date: 7 December 2021

CaseChat Overview and Summary

The case of Hutson v Nerang Subdivision Pty Ltd and ors involved a dispute over the interpretation and execution of a development deed and a development lease. The applicant, the first respondent, and the second respondent had entered into a development deed, which in turn contemplated a development lease with the third respondent. The applicant sought directions that the form of contract proposed by the respondents was not consistent with the terms of the development deed and development lease, as well as an alternative declaration that the tenant under the development lease was not entitled to a 10% increase in the amount payable to the tenant.

The legal issues before the court included whether the proposed form of contract for the sale of lots to third parties by the first and second respondents was consistent with the terms of the development deed and development lease. The court was also required to determine whether the directions sought by the applicant should be made or whether the proceeding should be stayed and determined by an expert.

The court found that the proceeding should be stayed until the determination of the dispute referred to in the first and third respondents’ solicitor’s letter to the President of the Queensland Law Society dated 15 November 2021 pursuant to clause 12 of the Development Deed and clause 18 of the Development Lease. The court held that the applicant’s application was premature, and that the dispute should first be determined by an expert as provided for in the development deed and development lease. The court also found that the applicant should pay the first and third respondents’ costs of the application.

Orders

Orders of the court

The order of the Court is that:

1. The proceeding be stayed until the determination of the dispute referred to in the first and third respondents’ solicitor’s letter to the President of the Queensland Law Society dated 15 November 2021 pursuant to clause 12 of the Development Deed and clause 18 of the Development Lease (as those expressions are defined in paragraph 1 of the Originating Application (CFI 1)).

2. The applicant pay the first and third respondents’ costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hutson v Nerang Subdivision Pty Ltd & ors [2021] QSC 323
PARTIES:	ROBERT HUTSON IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF NANCY ULLMAN LOESKOW (applicant) v NERANG SUBDIVISION PTY LTD ACN 129 469 254 (first respondent) and KANAYA HOLDINGS PTY LTD ACN 098 864 905 (second respondent) and PACIFIC VIEW FARM (QUEENSLAND) PTY LTD ACN 114 561 081 (third respondent)
FILE NO/S:	BS 12466 of 2021
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	7 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2021
JUDGE:	Brown J
ORDER:	The order of the Court is that: 1. The proceeding be stayed until the determination of the dispute referred to in the first and third respondents’ solicitor’s letter to the President of the Queensland Law Society dated 15 November 2021 pursuant to clause 12 of the Development Deed and clause 18 of the Development Lease (as those expressions are defined in paragraph 1 of the Originating Application (CFI 1)). 2. The applicant pay the first and third respondents’ costs of the application.
CATCHWORDS:	CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the applicant, first respondent and second respondent entered into a development deed – where the development deed contemplated entry into a development lease including with the third respondent – where the applicant seeks directions that the form of contract proposed by the respondents is not consistent with the terms of a development deed and development lease – where the applicant seeks a declaration in the alternative that a tenant under the development lease is not entitled to a 10% increase in the amount payable to the tenant PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – whether the proposed form of contract to be used for the sale of lots to third parties that has been proposed by the first and second respondents is consistent with the terms of the development deed and development lease – whether the directions sought should be made or whether the proceeding should be stayed and determined by an expert Hooks Enterprises Pty Ltd v Sonnenberg Pty Ltd [2018] 1 Qd R 116, considered Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, cited Nerang Subdivision Pty Ltd v Hutson [2020] QSC 225, considered Re: Tooth & Co Limited (1978) 31 FLR 314, applied Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563, considered 1144 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd (2009) 26 VR 551, cited
COUNSEL:	M May for the applicant B O’Donnell QC with S Russell for the respondents
SOLICITORS:	Cooper Grace Ward for the applicant Mills Oakley for the respondents