Lang Parade Pty Ltd v Peluso - [2005] QSC 112

SUPREME COURT OF QUEENSLAND

CITATION:

Lang Parade Pty Ltd v Peluso & Ors [2005] QSC 112

PARTIES:

LANG PARADE PTY LTD ACN 098 723 034
(applicant)
v
MICHAEL SHANE PELUSO, FREDERICK JOSEPH PELUSO AND SHERIDAN JOANNA PELUSO
(first respondents)

MICHAEL SHANE PELUSO AND FREDERICK JOSEPH PELUSO JUNIOR
(second respondents)

FILE NO:

BS10829/2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

9 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27, 28 January 2005

JUDGE:

Douglas J

ORDER:

Judgment for the applicant, further submissions as to the wording of the order invited

CATCHWORDS:

TORTS – TRESPASS – TRESPASS TO LAND AND RIGHTS OF REAL PROPERTY – WHAT CONSTITUTES TRESPASS AND DEFENCES THERETO – DEFENCES – ENTRY UNDER WRITS, ORDERS, STATUTORY AND OTHER LEGAL RIGHTS – where applicant developer’s cranes were trespassing over respondents’ properties – where initial indication by one respondent was that the trespass was allowed – where respondents subsequently demanded the trespass cease or the payment of compensation – where open offers of compensation made by applicant – where respondent refused to accept any offer on the basis that they did not reflect the level of profit from reduced construction costs – whether applicant had made out the requirements in s 180 of the Property Law Act 1974 to impose a statutory right of user.

117 York Street Pty Ltd v Propietors of Strata Plan No. 16123 (1998) 43 NSWLR 504, applied
Attorney-General v Blake [2001] 1 AC 268, discussed
Blulock Pty Ltd v Majic (2001) 10 BPR 19,143
Debbula Pty Ltd v The Owners, State Plan 6964 (2004) NSW Conv R 56-073, applied
Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86, followed
Goodwin v Yee Holdings Pty ltd (1997) 8 BPR 15,795, discussed
Hanny v Lewis (1998) 9 BPR 16,205, cited
Jacobsen Holdings Pty Ltd v Drexel [1986] 1 NZLR 324, discussed
Katakouzinos v Roufir Pty Ltd (2000) 9 BPR 17,303, applied
LJP Investments Pty Ltd v Howard Chia Investments Pty ltd (1990) 24 NSWLR 499, cited
Lynch v White (1987) Q Conv R 54-257, followed
Mitchell v Boutagy (2001) 118 LGERA 249, cited
Nelson v Calahorra Properties Pty ltd & Ors (1985) Q Conv R 54-202, followed
Re Hodgskin (1999) Q Conv R 54-535, followed
Re Kindervater [1996] ANZ Conv R 331, followed
Re Roobottom, unreported, Helman J, Supreme Court of Queensland, OS 6080 of 1998, 17 July 1998, applied
Re Seaforth Land Sales Pty Ltd’s Land [1976] Qd R 190, followed
Re Seaforth Land Sales Pty Ltd’s Land (No. 2) [1977] Qd R 317, followed
Re Worthson Pty Ltd [1987] 1 Qd R 400, followed
Wengarin Pty ltd v Byron Shire Council (1999) 9 BPR 16,985, discussed
Woodland v Manly Municipal Council (2003) 127 LGERA 120, applied

Conveyancing Act 1919 (NSW), s 88K
Property Law Act 1974 (Qld), s 180

COUNSEL:

M Stewart SC with C Wilkins for the applicant
G Martin SC with L Bowden for the…

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: [2005] QSC 112
Decision Date: 9 May 2005

CaseChat Overview and Summary

In the case of Lang Parade Pty Ltd v Peluso, the plaintiff, Lang Parade, sought to establish a statutory right of user over the properties of the defendants, the Pelusos, to allow the construction of a building. The defendants claimed that the plaintiff's cranes were trespassing over their properties and demanded that the trespass cease or compensation be paid. The defendants refused to accept any compensation offer made by the plaintiff, stating that the offers did not reflect the level of profit from reduced construction costs.

The primary legal issue was whether the plaintiff had established the requirements in section 180 of the Property Law Act 1974 to impose a statutory right of user. The court had to determine if the plaintiff had satisfied the conditions necessary to establish a statutory right of user over the defendants' properties. Additionally, the court needed to assess the validity of the defendants' claims that the plaintiff's cranes were trespassing over their properties.

The court found that the plaintiff had satisfied the requirements of section 180 of the Property Law Act 1974, which allows for the imposition of a statutory right of user. The court noted that the initial indication by one defendant that the trespass was allowed did not constitute a waiver of their rights. The court further determined that the defendants' refusal to accept any compensation offer was unreasonable, as the offers did not reflect the level of profit from reduced construction costs. Therefore, the court held that the plaintiff had established a statutory right of user over the defendants' properties.

As a result of the court's decision, judgment was entered in favour of the plaintiff. The court invited further submissions from the parties as to the wording of the order.

Orders

Orders of the court

Judgment for the applicant, further submissions as to the wording of the order invited

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:	Lang Parade Pty Ltd v Peluso & Ors [2005] QSC 112
PARTIES:	LANG PARADE PTY LTD ACN 098 723 034 (applicant) v MICHAEL SHANE PELUSO, FREDERICK JOSEPH PELUSO AND SHERIDAN JOANNA PELUSO (first respondents) MICHAEL SHANE PELUSO AND FREDERICK JOSEPH PELUSO JUNIOR (second respondents)
FILE NO:	BS10829/2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	9 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	27, 28 January 2005
JUDGE:	Douglas J
ORDER:	Judgment for the applicant, further submissions as to the wording of the order invited