Lambert Property Group Pty Ltd v Daly - [2014] QPEC 44

[2014] QPEC 44

PLANNING AND ENVIRONMENT COURT

JUDGE R S JONES

P & E No 3900 of 2013
LAMBERT PROPERTY GROUP PTY LTD Applicant
and
SEAN JOHN DALY and OTHERS Respondents
BRISBANE
19 AUGUST 2014
EX TEMPORE JUDGMENT

HIS HONOUR: This proceeding is primarily concerned with two matters. First, an application on behalf of the respondents, who I will refer to as “the Dalys”, to strike out the applicant in the originating proceedings, but the respondent in this proceeding. The second matter is an application made on behalf of the applicants in the substantive proceeding, the Lambert Property Group Proprietary Limited, for an adjournment of proceedings for a period of five months. I will refer to that party as “the Lambert Group”. For the reasons I am about to give, the orders of the Court will be, subject to hearing further from the parties if necessary:

The strike out application is dismissed.

The proceedings are to be adjourned to 2 pm, 19 December 2014 before myself.

I will hear further from the parties if necessary as to costs.

Before proceeding further, I will make some general observations. First, the reason why I did not grant the full period of five-month, and only a four-month, period is for a number of reasons, but more particularly because if the matter was extended beyond four months I would not be able to deal with the matter as I will be on leave from December until early February, and I considered it of benefit that the matter did remain before me.

Also, in circumstances where I had originally contemplated making a guillotine order but refrained from doing so, it appeared to me that it would not be unreasonable to constrain the Lambert Group to a tighter timetable. On balance, I considered five months to be overly generous without being directed to any particular material which showed that the issues could not be dealt with in a shorter time.

By way of some general background, the proceeding is primarily concerned with a major development at Kangaroo Point and, more particularly, stage 3 of that development. Stages 1 and 2 have been developed. Economic conditions, in particular, have delayed stage 3. The relief originally sought was for declaratory relief and, in particular, concerning owner’s consent and that proceeding was filed on 11 October 2013. However, it soon became apparent to the Lambert Group that the relief sought was unachievable given the position or attitude or taken by the Dalys.

The relief now being sought is still for declaratory relief concerning owner’s consent, but it is no longer being sought, relevantly here in respect of a change of development approval. The relief now sought is in these terms:

A declaration that owner’s consent is not required from the respondents for lodging a development application for the development shown at paragraph 3

of the affidavit of Benjamin James Lyons dated 11 October 2013 (or some further iteration of that development).
Second, a declaration that owner’s consent is not…

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.

Continue reading Lambert Property Group Pty Ltd v Daly

Details

AGLC: Lambert Property Group Pty Ltd v Daly [2014] QPEC 44
Case: [2014] QPEC 44
Decision Date: 19 AUGUST 2014

CaseChat Overview and Summary

The Lambert Property Group Pty Ltd (Applicant) sought a declaration that owner’s consent was not required from the Dalys (Respondent) for lodging a development application for the proposed stage 3 of a development at Kangaroo Point. The Dalys sought to have the proceedings struck out on the basis of delay, breach of an order, and futility. The Lambert Group also sought an adjournment of the proceedings. The Court considered the arguments of the parties and decided against striking out the proceeding but granted a four-month adjournment. The Court noted that the delays were not excessive and that the Lambert Group appeared to be genuinely attempting to reach a solution. The Court also noted that striking out the proceeding would not remove the threat of litigation in any realistic way and that the proceeding gave the Court the opportunity to impose time constraints and directions if required.

The Court held that the proceeding should not be struck out, but it granted a four-month adjournment instead. The Court noted that the delays were not excessive and that the adjournments had been granted with the consent of the Dalys. The Court also noted that the breach of the order was not as serious a matter as it might otherwise have been, and the prejudice heaped upon the Dalys by not striking out this proceeding was not as significant a factor or consideration as it might otherwise have been. The Court also noted that the Lambert Group appeared to be genuinely attempting to reach a solution. The Court held that if the proceeding was struck out, the matter could drift somewhat into the ether only to return in the near future. On balance, the Court decided to exercise its discretion in favour of the Lambert Group and not strike out the application. However, the Court warned the Lambert Group that if the same situation existed, or a similar situation existed, when the matter came back before the Court, there would be very good reasons to end the proceedings on that date.

Orders