K J and B Flanders Pty Ltd v South Gippsland Shire Council
[2016] VSC 786
•16 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S CI 2014 06695
| K J & B FLANDERS PTY LTD (ACN 006 240 231) | Plaintiff |
| v | |
| SOUTH GIPPSLAND SHIRE COUNCIL | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 November 2016 |
DATE OF RULING: | 16 December 2016 |
CASE MAY BE CITED AS: | K J & B Flanders Pty Ltd v South Gippsland Shire Council |
MEDIUM NEUTRAL CITATION: | [2016] VSC 786 (First Revision 22 December 2016) |
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PRACTICE AND PROCEDURE — Pleadings — Application for summary judgment — Sections 62 and 63 of the Civil Procedure Act 2010 — Application for summary judgment allowed in part— Application to strike out amended statement of claim — Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 — Amended statement of claim struck out on grounds that it does not disclose a cause of action and may prejudice, embarrass or delay the fair trial of the proceeding — Leave granted to plaintiff to file another statement of claim.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Levine | James McConvill & Associates |
| For the Defendant | Mr P S Noonan | HWL Ebsworth Lawyers |
HER HONOUR:
In 1979, a local government council issued a planning permit for a subdivision of land in South Gippsland, with the condition that part of that land be provided to it for construction of a road. The subdivision was subsequently sealed by the council. The certificates of title for the subdivision indicated a road on the land. However, the land for the road was never transferred to council. The plaintiff is the landowner and says that the road should not be on the certificates of title and wants it removed. The defendant is the local government council. It is a successor to the original local government council that issued the planning permit.
By summons filed 2 November 2016, the defendant makes an application for summary judgment or, alternatively, that the plaintiff’s amended statement of claim be struck out.
Summary
The Court will make orders for summary judgment in respect of part of the plaintiff’s amended statement of claim. The relevant parts are discussed below. In respect of the remainder of the amended statement of claim, the Court will make orders striking it out. The plaintiff will, however, be given leave to file another statement of claim. It must be in a manner consistent with the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), and may not include the parts of his claim for which there has been summary dismissal.
The plaintiff will also be given leave to join the Registrar of Titles as a second defendant.
Background
On 30 January 1985, the plaintiff became the registered proprietor of Certificate of Title Volume 9699 Folio 919 (‘the 22B title’).[1] On 19 June 1990, the plaintiff became the registered proprietor of the land contained in Certificate of Title Volume 9996 Folio 045 (‘the 22C title’).[2] Both the 22B and 22C titles were created as a result of a subdivision prior to the plaintiff becoming the registered proprietor. During the hearing, it became evident that the plaintiff’s main concern was the road on the 22B title. As discussed below, the road is marked on the 22C title and the plaintiff wants it removed.
[1]Affidavit of Chris Van Der Ark, sworn 2 November 2016 (‘the Ark affidavit’), Exhibit ‘CVDA-2’.
[2]Ark affidavit, Exhibit ‘CVDA-3’.
The history of the 22B and 22C titles is relevant. They were previously part of a parent title Volume 7008 Folio 449. Prior to the subdivision, the predecessor body of the defendant issued a planning permit T16.1/151 that imposed conditions, including that the land where a private road was over the 22B title be provided to it for construction of a road. The private road was commonly known as part of Shields Road. The following month, namely June 1979, an application was made by the then proprietors of the land for formal subdivision. The application is numbered 132392.[3] The subdivision provided for the continued existence of Shields Road. On 13 September 1979, the defendant’s predecessor body sealed the plan of subdivision.
[3]Ark affidavit, Exhibit ’CVDA-4’.
It is common ground between the parties that the land was never provided to the defendant or the predecessor body of the defendant for the construction of a road. However, the road continues to exist on the land described in the 22B title, running East‑West along the northern boundary. The name of the road is written on the 22B title, and there is also a reference to the road on the general diagram for the 22C title.
Applicable principles
Rule 23.02 of the Rules states:
23.02 Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
The principles in respect of r 23.02 applications are well-established and indeed were not in dispute between parties, nor were the principles in respect of summary judgment applications under the Civil Procedure Act 2010 (‘CPA’). For completeness, however, the principles in respect of r 23.02 outlined by Justice J Dixon in Wheelahan v City of Casey (No 12) are adopted.[4]
[4][2013] VSC 316 (20 June 2013) [25].
(a)Order 13 of the Rules set out the relevant requirements of a sufficient pleading, while r 23.02 provides the grounds on which the sufficiency of a pleading may be impugned;
(b)the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;[5]
[5]The function of defining issues for trial is required from an early stage. Otherwise, discovery and other interlocutory process are likely to be misdirected: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd& Ors (1996) ATPR 41-522, 42,679 (Burchett J).
(c)the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence).[6] The expression ‘material facts’ is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;[7]
[6]A reasonable cause of action or defence is one with a real chance of success, assuming the correctness of the allegations of fact in the challenged pleading.
[7] Australian Automotive Repairers’ Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568 [13], citing Bruce v Oldhams Press Ltd [1936] 1 KB 697, 712-713.
(d)as a corollary, the pleading must be presented in an intelligible form – it must not be vague or ambiguous or inconsistent.[8] Thus a pleading is ‘embarrassing’ within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
[8]In Environinvest, the pleading was struck out because it was confusing, often circular, sometimes inconsistent and contained no coherent narrative.
(e)the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;[9]
[9]SMEC [2011] VSC 492 [8].
(f)pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);[10]
[10]SMEC [2011] VSC 492 [9].
(g)a pleading which contains unnecessary or irrelevant allegations may be embarrassing – for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;[11]
[11]SMEC [2011] VSC 492 [28]–[31]. In SMEC, Vickery J remarked (at [5]) that good pleading calls for ‘judgment and courage to shed what is unnecessary’.
(h)it is not sufficient to simply plead a conclusion from unstated facts.[12] In this instance, the pleading is embarrassing;
(i)every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));
(j)the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);[13]
(l)particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement – namely, to fill in the picture of the plaintiff’s cause of action (or defendant’s defence) with information sufficiently detailed to put the other party on guard as to the case that must be met.[14] An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;[15]
(m)a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;[16]
(n)extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;[17]
(o)in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;[18]
(p)the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown;[19] and
(q)if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.[20]
[12]Trade Practices Commission v David Jones (Australia) Pty Ltd & Ors (1985) 7 FCR 109, 114.
[13]In Gunns Ltd & Ors v Marr [2005] VSC 251 (‘Gunns’), Bongiorno J remarked (at [52]) that the paragraphs in the pleading ‘contain quotations from newspapers, websites and correspondence which are inappropriate in form’.
[14]Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, 286 (Mason CJ and Gaudron J).
[15]Clarke [2010] VSC 473 [9].
[16]Knorr v CSIRO & Ors (No 2) [2012] VSC 268.
[17]In Gunns, Bongiorno J noted (at [20]) that the particulars to the amended statement of claim under attack incorporated allegations of approximately 40 other paragraphs, requiring the defendants to navigate through a labyrinth of allegations. His Honour refused leave to file the amended statement of claim in the proposed form.
[18]Rule 23.04 and Day v William Hill (Park Lane) Ltd [1949] 1 KB 632.
[19]Clarke [2010] VSC 473 [11].
[20]Davy v Garrett (1878) 7 Ch D 473.
In respect of the words ‘prejudice, embarrass or delay’ in r 23.02, Derham AsJ stated in Vo Nguyen and ors:
Under this Rule, the objection is to the manner of expression of the claim or defence in the indorsement of claim or pleading. That is, the indorsement or pleading does not disclose the cause of action or defence or its contents are such that it is scandalous, frivolous or vexatious, or may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process. Under this Rule, the defendants do not ask that the proceeding be brought to an end. They seek an order that the offending indorsement be struck out or amended, and that the plaintiff present the claim in the proper way: Brinson v Rocla Concrete Pipes Ltd.[21]
…
Prejudice, embarrass or delay: In general, a pleading or endorsement is embarrassing when it places the opposite party in the position that he or she does not know what is alleged against him or her . Thus, a pleading which is unintelligible, or is vague or ambiguous or is too general is embarrassing [citations omitted]. [22]
[21][1982] 2 NSWLR 937.
[22][2013] VSC 304 (12 June 2013) [31], [36].
Section 63 of the CPA gives the Court power to order summary judgment in a civil proceeding if it is satisfied that a claim has no real prospect of success. The Court of Appeal outlined the following test for summary judgment in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (‘Lysaght’):
(a) The test for summary judgment under s 63 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b) The test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c) It should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) At the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[23]
[23](2013) 42 VR 27, 40 [35].
Section 64 of the CPA provides:
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a)it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
Sections 42(1) and 42(2)(d) of the Transfer of Land Act1958 (‘TLA’) provide:
42 Estate of registered proprietor paramount
(1)Notwithstanding the existence in any other person of any estate or interest (whether derived by grant from Her Majesty or otherwise) which but for this Act might be held to be paramount or have priority, the registered proprietor of land shall, except in case of fraud, hold such land subject to such encumbrances as are recorded on the relevant folio of the Register but absolutely free from other encumbrances whatsoever, except –
(a) the estate or interest of a proprietor claiming the same land under a prior folio of the Register;
(b)as regards any portion of the land that by wrong description of parcels or boundaries is included in the folio of the Register or instrument evidencing the title of such proprietor not being a purchaser for valuable consideration or deriving from or through such a purchaser.
(2)Notwithstanding anything in the foregoing the land which is included in any folio of the Register or registered instrument shall be subject to –
…
(d)any easements howsoever acquired subsisting over or upon or affecting the land; …
Section 103 of the TLA provides:
103 General provision as to correction of errors etc.
(1)In any proceeding in a court relating to any land or any instrument or dealing in respect thereof if the court directs the Registrar to make any amendments to the Register or otherwise to do any act or make any recordings necessary to give effect to any judgment decree or order of the court the Registrar shall obey such direction.
…
(2)(a)The Registrar may upon such evidence as appears to him sufficient correct errors in the Register or in any plan of subdivision or unregistered instrument and supply entries or recordings omitted to be made therein under the provisions of this Act, but in any such case he shall not erase, delete or render illegible the original entry or recording, and shall indicate on that entry or recording the date on which the correction or recording was made.
(b)Every correction recording or entry under subsection (2)(a) shall have the like validity and effect as if the error or omission had not occurred, but without prejudicing any rights accrued from any recording made in the Register prior to the actual time of correcting the error or supplying the omitted entry or recording.
Section 4 of the Land Acquisition and Compensation Act 1986 provides:
Authority to acquire or purchase in accordance with Part
An Authority which is empowered under a special Act to acquire an interest in land by compulsory process must not acquire that interest by compulsory process or by agreement except in accordance with this Part.
The Subdivision Act 1988 currently regulates subdivisions in Victoria. There was no single predecessor Act. Prior to the Subdivision Act, the ‘process of subdivision assessment and approval’ was ‘most complex’.[24] The relevant time in this proceeding is May – September 1979, prior to the Subdivision Act 1988. At that time, subdivisions in Victoria were regulated by a combination of the Local Government Act 1958, the Cluster Titles Act 1974 and the Strata Titles Act 1967.
[24]Victoria, Parliamentary Debates, Assembly, 13 October 1987, 1440 (Mr Wilkes).
The Local Government Act 1958 (No 6299) (‘the LGA 1958’) contained requirements for subdivision plans lodged with local government councils. Section 569A(2)(a) the LGA 1958 provided:
The plans submitted to the council shall set out all such levels and particulars as the council requires in order to enable it to –
(a) fix the level of every new street or road;
…
Section 569B(8) of the LGA 1958 gave local government councils the discretion to refuse to seal subdivision plans in certain circumstances. For instance:
Council may refuse to cause the plan to be sealed if in its opinion having regard to the scheme of subdivision –
(a)any such new street road lane or passage will not be connected at each end with another street road lane or passage;
…
(o)for any other sufficient reason to be stated by it in writing it is not in the public interest that the plan should be sealed.
Consideration
Strike out application
It is necessary to consider the plaintiff’s amended statement of claim filed 18 October 2016 (‘the amended statement of claim’) and whether it should be struck out pursuant to r 23.02.
The amended statement of claim asserts various conclusions from unstated facts. For instance, paragraph 15 of the amended statement of claim asserts that the defendant was not issued with a certificate of title for the road and paragraph 16 asserts that the defendant thereby had no legal title that enabled the road to be marked upon the defendant’s property.
The amended statement of claim does not state all the material facts to establish a reasonable cause of action. Critically, it fails to plead in sufficient detail to enable the defendant to know which case it has to meet. For instance, on the pleadings it is confusing as to which part of Shields Road reference is made. There is a general failure to plead particular sections of legislation or material facts relied upon. For instance, paragraph 17 asserts that there was a failure to comply with the Land Acquisition and Compensation Act. This failure occurred upon the creation of the certificate of title for the defendant’s land. Hence the acquisition was illegal. The relationship between any purported causes of action and the relief claimed is vague.
In addition, the amended statement of claim does not comply with the overarching purpose of the CPA . That is, it does not ’facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute’ (emphasis added).[25] The causes of action are vague and embarrassing. The amended statement of claim is therefore inconsistent with the overarching purpose in s 7 of the CPA.
[25]Civil Procedure Act 2010 (Vic) s7(1).
Pursuant to r 23.02(a) and (c), the amended statement of claim will be struck out. Leave will be given to file a new statement of claim. Of course, any causes of action that are summarily dismissed may not be pleaded again in the new statement of claim.
Plaintiff’s Causes of Action
During oral submissions it became evident that the plaintiff pleads four causes of action. These are each dealt with below. In addition to submissions on each cause of action, the defendant pleads three general defences, and they are also dealt with below.
1. Local Government Act claim
In paragraphs 9 to 11 of the amended statement of claim the plaintiff pleads that the LGA 1958 required the defendant to refuse to seal the plan of subdivision if a house upon a subdivided property lacked road access to a connecting road and was thus landlocked. The plaintiff relies on ss 569A(2)(a) and 569B(8)(a). During oral submissions, the plaintiff indicated that it also relied on s 569B(8)(o).
The defendant says that this claim has no real prospect of success. Section 569A(2)(a) relates to applications for subdivision. It provides that certain levels and particulars must be provided by an applicant who is applying for subdivision.
In respect of s 569B(8)(o) of the LGA 1958, the defendant says this is a discretionary provision. It provides that the council ‘may’ refuse to cause a subdivision plan to be sealed, and then lists certain factors to which it may have regard. In comparison, s 569B(7) provides that council ‘shall’ refuse to seal a subdivision plan in certain circumstances. Further, the council never stated in writing that it was not in the public interest to be sealed, as required by that section. The defendant also says that by this pleading, the plaintiff is saying the defendant was obliged to transfer the land first and then seal the subdivision afterwards. The defendant concludes this is nonsense, because the plan of subdivision is what provides the title to be transferred in the first place. Finally, nowhere in s 569A or s 569(8)(o) does it mention landlocked properties and the 22B title is not landlocked.
Consideration
Section 569A(2)(a) is incapable of giving rise to a cause of action against the defendant. It relates to material that an applicant for a subdivision must provide at the time of making that application. The claim in relation to breach of s 569B(8)(a) and (o) also has no real prospect of success. The effect of the plaintiff’s submissions is that the defendant’s predecessor council was obliged to transfer the land first and then seal the subdivision afterwards. However, that is not possible because it is the plan of subdivision that provides the title to be transferred.
Further, the defendant’s submission that s 569B(8)(a) and (o) are discretionary provisions is accepted based on the clear wording of the section. The Interpretation of Legislation Act 1984 s 45 states, ‘Where … the word "may" is used in conferring a power, that word shall be construed as meaning that the power so conferred may be exercised, or not, at discretion.’ Section 569B(8)(a) and (o) do not require a local government council to refuse to seal landlocked property, as submitted by the plaintiff. The question may sometimes arise as to whether or not a local government body has exercised its discretion appropriately. However, given that submission is a nonsense in the first place because the subdivision had to occur before the transfer of title, this issue is not necessary to determine.
The plaintiff has no real prospect of success in relation to this claim under the LGA 1958 that is pleaded in paragraphs 9-11 of the amended statement of claim. Orders will be made for summary dismissal of that part of the statement of claim.
2. Rectification of title
The plaintiff made oral submissions that it had a cause of action pursuant to s 103 of the TLA to rectify the 22B title to remove reference to the carriageway easement. This is not pleaded in the statement of claim. Further, the plaintiff wishes to add the Registrar of Titles as a defendant.
The defendant submits that the Certificate of Title is conclusive pursuant to s 41 of the TLA. Further, under s 98 of the TLA, there is no assertion that the defendant has the title. It is the plaintiff that holds the title. The defendant submits that it is a frivolous proceeding if the sole issue is rectification of the title.
Consideration
Shields Road appears to be marked as a carriageway easement on the 22C title. Oddly, the title describing the land over which the carriageway easement physically runs, namely the 22B title, does not have it marked in the same manner. There is reference to Shields Road, as the name of the road is written on the title, however it does not appear to be marked as a carriageway easement running over the land on the 22B title. The question of whether or not the carriageway easement should be marked over the 22B title is a real issue in dispute. A more fundamental question is perhaps whether the plaintiff or the defendant should have title in the land upon which the road exists.
Pursuant to s 103(2) of the TLA, an application may be made to the Registrar of Titles to correct errors. It is unknown whether such an application has been made by the plaintiff. Further, there has been no determination as to whether or not there is an error.
At this point in time, and with the rectification claim only formulated in oral submissions, it cannot be said that such a claim would give rise to a frivolous proceeding (as the defendant asserts). For the same reason, it cannot be said it has no real prospect of success. The plaintiff should have the opportunity to properly formulate and plead the rectification cause of action. Further, the plaintiff will be given leave to join the Registrar of Titles as a defendant.
Alternatively, applying s 64 of the CPA, even if the rectification cause of action has no real prospect of success, it would not be in the interests of justice to summarily dispose of it because on the agreed facts there is a real issue to be determined, namely whether or not the carriageway easement should be marked over the 22B and 22C titles.
3. The common law
In paragraph 15 of the amended statement of claim, the plaintiff pleads that the defendant was not issued with a Certificate of Title for Shields Road as shown on Plan of Subdivision No 132392.
The defendant submits that this pleading is a conclusion, not a cause of action.
Consideration
During oral submissions, the plaintiff submitted that it relied on the common law to seek a declaration that there was no title. That is not a cause of action. The pleading in paragraph 15 is, as submitted by the defendant, a conclusion, not a cause of action.
Given that the cause of action has not been formulated, it cannot be summarily dismissed. The defect (pleading a conclusion) may (or may not) be cured by an amendment to the pleading. As discussed above, however, the statement of claim will be struck out and the plaintiff will be given leave to file a further statement of claim.
4. Land Acquisition and Compensation Act claim
In paragraph 17 of the amended statement of claim, the plaintiff pleads that the defendant failed to comply with the provisions of the Land Acquisition and Compensation Act 1986 in acquiring Shields Road. In oral submissions, the plaintiff’s counsel clarified that the plaintiff was relying on s 4 of that Act.[26]
[26]Section 4 of the Land and Acquisition and Compensation Act 1986 is set out at [15] above.
The defendant submitted, amongst other things, that the alleged act of acquisition was not apparent.
Consideration
The plaintiff’s counsel submitted that the carriageway easement land had not been transferred to the defendant. Indeed, he referred to evidence that it had not been acquired.[27] The evidence is that the carriageway easement land was not transferred.[28]
[27]Affidavit of James McConvill sworn on 14 November 2016, Exhibit 3, page 32.
[28]See Ark affidavit, Exhibit ‘CVDA-2’, 22B Certificate of Title.
Given that there is no evidence that the land was acquired,[29] there can be no real prospect of success in a cause of action in respect of this Act that is pleaded in paragraph 17 of the amended statement of claim. Orders will be made for summary dismissal of that part of the statement of claim.
General Defences
[29]The Land and Acquisition and Compensation Act s3 defines ‘acquire’ to mean, in relation to an interest in land, to acquire that interest by compulsory process or by agreement if the person acquiring the interest is empowered to acquire it by compulsory process:
It is necessary to consider the three general defences in order to consider whether or not the plaintiff’s amended statement of claim has any real prospect of success. If the defences were accepted then the plaintiff’s claim, or part of it, would have no real prospect of success.
1. Limitation of Actions Act defence
The defendant relies on s 5(a) of the Limitation of Actions Act 1958 in paragraph 20 of its defence. It says that all claims made by the plaintiff are statute barred.
The plaintiff submits that if the cause of action is seeking rectification of title, then it has not begun to run yet.
Consideration
Without understanding the precise causes of action pleaded by the plaintiff, the Court cannot make a finding at this time that the plaintiff’s claims are all statute barred. Accordingly, this defence does not give rise to summary judgment at this time.
2. Resolution and Estoppel defences
In paragraph 19 of the defence, the defendant relies upon a resolution of an agreement regarding access to Lot 1, LP132392. In other words, in relation to the carriageway easement over the 22B title. The letter from the defendant to Mr and Mrs Kelvin Flanders is dated 9 October 1997 (‘the resolution letter’).[30] It is preceded by a settlement agreement which the parties agree did not resolve all matters (‘the settlement agreement’).[31]
[30]Ark affidavit, Exhibit ‘CVDA-10’.
[31]Ark affidavit, Exhibit ‘CVDA-9’.
The plaintiff says that the resolution letter is not evidence of resolution. It refers to the recitals in the settlement agreement and submits that not all matters were resolved. It also refers to the letter subsequent to the resolution letter from the plaintiff to the defendant acknowledging resolution.[32] It notes this letter indicates that there are still outstanding issues because it says the gravel on the road needs to be re‑laid and the road should be renamed.
[32]Ark affidavit, Exhibit ‘CVDA-11’.
The construction of the resolution letter is a matter that is appropriate to ventilate at trial, should this proceeding continue.
The defendant relies upon an estoppel defence in paragraph 20 of the defence. This estoppel defence refers back to paragraph 6 of the defence. These are also issues that are appropriate to ventilate at trial, should this proceeding continue.
Conclusion
The Court will make orders for summary dismissal in respect of the parts of the amended statement of claim, referred to above, namely the causes of action in respect of the ss 569A(2)(a) and 569B(8)(a)and (o) of the LGA 1958 and the Land Acquisition and Compensation Act. The Court will make orders striking out the remainder of the amended statement of claim, and giving leave to the plaintiff to file another statement of claim. Orders will be made giving leave to the plaintiff to join the Registrar of Titles as a defendant. The parties are requested to confer as to the appropriate form of orders.
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