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:

1. The strike out application is dismissed.

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

1. 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 required from the respondents for lodging an alternative development application, a multi unit dwelling, shown at paragraph 7 of the affidavit of Benjamin James dated 11 October 2013 (or some further iteration of that development).

I should note that, if I have not already done so, that those quotes were taken from the amended originating application which, as I understand it, has not yet been filed. 

The Dalys are the neighbours of the existing stages 1 and 2 and proposed stage 3, and perhaps more particularly they have the benefit of an easement giving access to the Brisbane River.  Two easements are involved, easement A being a right of way easement over the Dalys’ land which is the servient tenement.  The Lambert Group land has the benefit of that easement and is the dominant tenement.  The roles are reversed for easement B over the Lambert Group land which is also a right of way easement.

The Dalys’ concerns in respect of stage 3, and in particular the easements, are articulated in their statement of facts, issues and contentions in paragraph 33 in the following way:

The use which the applicant wishes to make of easement A in its proposed development would be inconsistent with the terms of that easement in that carrying out such a development would cause:

(a)The burden on the easement to increase substantially and in a manner that would interfere with the respondents.

(b) Land which does not, on the terms of the easement, benefit from it to accrue such a benefit.

(c)Contrary to the express terms of easement A, a nuisance to owners and occupants of the servient tenements.

(d) A use of easement A that is contrary to its express terms and, in particular, the instituting of traffic control in the contemplated use being such as to necessitate or render disabled such control and in the construction of access over easement B.

The Lambert Group is endeavouring to come up with a design which will address, as far as practicable, those concerns.  In this regard, paragraphs 21 and 22 of the amended originating application relevantly provide:

21  For the permissible change application, owner’s consents will be required from the Dalys unless:

(a) Pursuant to sections 263(2)(a) and 371(c) of the SPA, the development is not inconsistent with the terms of easement A; or

(b) Pursuant to section 371(d) of the SPA, the Court is satisfied that, having regard to the nature of the proposed change, the Dalys have unreasonably withheld consent and the requested change does not materially affect the Dalys’ land.

22.By operation of the SPA, owner’s consent will be required from the Dalys for:

(a) A new development application for the development challenging the pre-request application (or some further iteration of that development); or

(b) Development of an alternative form of multi unit dwelling (or some further iteration of that development) unless pursuant to section 263(2)(a) of the SPA the development is not inconsistent with the terms of easement A.

Mr Horton, counsel for the Dalys, said to the effect that the proceedings should be struck out for various reasons.  And in particular, first, delay in the prosecution of the proceeding and that these delays have already involved a number of adjournments, and his clients should not be required to live with this litigation hanging over their heads.  They should, as Mr Horton put it, be allowed to get on with their lives. 

Second, that the Lambert Group have been in breach, or are in still in breach, of an order made by Judge Searles on 15 January 2014 which relevantly required the Lambert Group to reply to the Dalys’ statement of facts, matters and circumstances by 17 February 2014.  That has not been done.

Third, the proceedings are at present a futility as the Lambert Group is unable to identify what form the development will take, and there is no suggestion that it is able to do so in the near future.  According to Mr Horton, this is a case, in effect, of the Lambert Group still trying to manufacture a case in support of its application.  Next, and largely as a consequence of the third matter, to allow the proceeding to remain on foot would involve the Court impermissibly being involved in some form of supervisory role.

Before turning to each of these matters, a brief chronology is set out in the written submissions of the Lambert Group prepared by Mr Gore QC, Senior Counsel for the Lambert Group, with Mr J. Lyons.  It is set out in paragraph 14, but I do not intend to go through it in detail other than to note that the last adjournment of this matter was on or about 8 April 2014 and was for a period of seven weeks. 

The proceedings have been on foot now for some 10 months.  This unfortunately is not a particularly lengthy time in the world of litigation.  Further, while there have

been up until now five adjournments – as I said, the last being in April 2014 for seven weeks – each of those adjournments has been granted with the consent of the Dalys.  As I understand it, none of those applications for adjournments were opposed.  That, of course, does not preclude the Dalys from bringing this application, but it does in my view give some relevant background in regard to the passage of time to date.

Mr Horton, quite candidly and appropriately in my view, conceded that the only prejudice that could be pointed to as far his clients were concerned involved issues of cost, and the matter to which I already referred to, namely, the presence of litigation or, the shadow of litigation hanging over their heads. 

Costs of course, can to an extent be addressed by appropriate orders if sought by the offended parties.  As to the threat of litigation, it is clear that the development of stage 3 will not be abandoned.  It is also clear that, sooner or later, the Dalys would be likely to be confronted with litigation of this sort some time in the fairly near future even if these proceedings were struck out.  To put it bluntly, striking out this application will not remove the threat of litigation in any realistic way and, at least to some extent as the proceedings presently stand, at least the Dalys know the beast they have to contend with.  It is no doubt true, as Mr Horton said, that if this proceeding was struck out there would be nothing hanging over the Dalys’ head until the new proceedings were commenced.  But in all the circumstances any such relief would seem to me to be relatively marginal and short lived.

As to the breach of the order of Judge Searles, that is, of course, on its face a very significant factor in favour of the application, but in my view not a fatal one, particularly in the circumstances of this case.  To respond to the Dalys’ statement of facts, matters and circumstances at this stage, or even as at February 2014, would have been of little relevance.  The fact is that things had moved on since then. 

Also, in circumstances where no complaint of prejudice by virtue of the breach of the orders has been made, and the complaint about the breach occurs some six months after the event are relevant considerations and somewhat mollify against the offending conduct on the part of the Lambert Group.  It would appear in that context that the solicitors acting for the Dalys themselves recognise that any such reply might be largely redundant. 

It is the last two matters raised by Mr Horton that have caused me most concern. The criticisms are not without merit of significance. As I understand it, the Lambert Group is yet to come up with a proposal that addresses the concerns of the Dalys and, as Mr Horton put it, is in reality still trying to marshal its case. After referring to the judgment of Hansell and Collison Finance and Investment Proprietary Limited (2006) QDC 54, Mr Horton made the following written submissions:

The applicant has not reached the stage of articulating the case it is prepared to prosecute.  The delay has been attributable entirely to the applicant, and its

failure to have put in place such arrangements as its proposed development properly required.  The applicant seeks a declaration of right but without being able to say that the facts as presently exist give it that right, the relief sought is presented on the basis of a purely hypothetical case.

These assertions go well beyond the typical issues often raised in proceedings such as this which often tend to be mainly concerned with failures to take steps in prosecuting an action, and whether or not there is a sufficient explanation for the delay and what, if any, prejudice the innocent party has suffered.  I must say that, ordinarily, these matters raised by Mr Horton might well provide strong grounds for bringing the proceeding to an end at this stage.  However, weighing against that course of action are the following considerations. 

First, in the proceedings before me, the Dalys’ case was not framed or mounted in a way seeking summary relief on the basis that, after a forensic examination of the matters pleaded by the Lambert Group, there were no reasonable prospects of success and no need for a trial.

The delays to date, as I have already indicated, have not been, in my view, extensive and the adjournments have been by consent thus far.  The breach of the order, for the reasons I have already given, is not as serious a matter as it might otherwise have been.  Also for the reasons given, the prejudice heaped upon the Dalys by not striking out this proceeding is not as a significant factor or consideration as it might otherwise have been.  Also, the Lambert Group to date do appear to have been genuinely attempting to reach a solution. 

Finally, while this Court is not here to provide supervision in the absence of genuine litigation, the present proceeding not only identifies the relief sought and the grounds relied on even if somewhat hypothetical at this stage, it also gives this Court the opportunity to impose time constraints and directions if required.  It seems to me that if this proceeding was struck out, this matter could drift somewhat into the ether only to return in the near future.  On balance, but with some genuine reservation I must say, I have decided to exercise my discretion in favour of the Lambert Group and not strike out the application.

Now, I might at this stage put on the record that as I have foreshadowed, while I have not made the proceedings the subject of any guillotine order, the Lambert Group should be alerted to the fact that when this matter comes back before me and the same situation exists, or a similar situation exists, as far as I am concerned there would be very good reasons to end the proceedings on that date, even if I were to proceed on the basis of an oral application made on the next return date for a striking out of the proceedings.

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