Level Holdings Pty Ltd v Laurendi - [2007] WADC 171

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LEVEL HOLDINGS PTY LTD -v- LAURENDI [2007] WADC 171

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 1 AUGUST 2007

DELIVERED : 3 OCTOBER 2007

FILE NO/S: CIV 478 of 2007

BETWEEN: LEVEL HOLDINGS PTY LTD
Plaintiff
AND
JULIE LAURENDI
Defendant

Catchwords:

Practice - Western Australia - Practice under Rules of the Supreme Court of Western Australia - Application for summary judgment by plaintiff - Claim for contribution to the cost of subdivisional roads under s 159 Planning and Development Act 2005 - Claim founded upon allegation of common boundary

Legislation:

Planning and Development Act 2005 (WA)

Result:

Successful in part

Representation:

Counsel:

Plaintiff: Mr S D Pentony
Defendant: Mr W G Spyker

Solicitors:

Plaintiff: Hotchkin Hanly
Defendant: Cornerstone Legal

Case(s) referred to in judgment(s):

Nil

DEPUTY REGISTRAR HARMAN: Section 159(1) of the Planning and Development Act 2005 (WA) provides for recovery of the cost of development of land.
It is as follows:
"(1)Where
(a)a person (in this section called the "later subdivider") has subdivided land in which
(i)a lot or lots has or have a common boundary with; or
(ii)a road joins,
an existing road to which there is access from the subdivided land;
(b)a person (in this section called the "original subdivider") who previously subdivided land that also has a common boundary with that existing road, in connection with that subdivision, contributed to or bore solely the cost of providing or upgrading the existing road; and
(c)the later subdivider did not contribute to that cost,
the original subdivider may, in accordance with this Division, recover from the later subdivider a sum representing one‑half of so much of the reasonable cost as was borne by the original subdivider of providing or upgrading the part of the existing road which has a common boundary with the lot or lots, or is joined by a subdivisional road, as referred to in par (a)."
The plaintiff seeks by way of summary judgment a declaration that it is entitled to recover from the defendant a sum representing one‑half of the reasonable cost of its provision of Excelsior Drive and Darcy Streets, Canning Vale. It bears the onus of persuasion that it has a clear case against the defendant.
The first issue raised by the defendant was that it was not open to the plaintiff to seek an order in the terms proposed. In my opinion if the court considers that the plaintiff has established a basis for recovery then judgment may properly issue for an amount to be determined.
At par 14 of its statement of claim the plaintiff expressly draws on the terminology of s 159(1) to cast its case. The defendant admits that:
"The Plaintiff is an 'original subdivider' within the meaning of that term in section s 159(1) (b) of the Act."
In my opinion that admission should have as broad an impact as s 159(1) would permit. Be that as it may I will consider what is revealed as being in issue on the close of pleadings.
The defendant pleads that she does not know and cannot admit par 4 of the statement of claim. It is as follows:
"On or about 8 March 2002 the plaintiff excised a portion of Lot 4 and remained the registered proprietor of the land then remaining, known thereafter as Lot 1023 on Deposited Plan 29995."
As there is more than one allegation of fact in par 4 the defendant’s response is ambiguous. Such a response fails the test of a sufficient pleading as it does not inform the reader of its import. As any material allegation neither not admitted nor denied is deemed to be admitted it is appropriate to consider that the allegations the subject of such an ambiguous plea are deemed admitted. In any event the defendant admits that the plaintiff was at all material times the registered proprietor of Lot 4 on Diagram 73087 located on Shreeve Road, Canning Vale and that on a later date it subdivided Lot 1023. For the purposes of the relevant part of the claim the material time was that of the subdivision of Lot 1023. Further at par 9 of the affidavit of Frank Anthony Chiera of 14 May 2007 he deposes that:
"In or around March 2002 the plaintiff exercised a portion of Lot 4 such that the remaining portion of Lot 4 (of which the Plaintiff continued as registered proprietor) became known as Lot 1023 on Deposited Plan 29995 ('Lot 1023')."
Consistent with the terms of her pleading the Defendant did not provide any relevant evidence. In the course of the hearing she raised no issue in relation to the plaintiff’s evidence. Taking all of those considerations into account I ought not to be troubled by the non‑admission of the allegations of the plaintiff made at par 4.
The defendant pleads similarly in relation to par 8 of the statement of claim:
"As part of the Lot 1023 Subdivision the Plaintiff dedicated a road for use by the public now known as Excelsior Drive and in that regard:
(a)provided part of the land comprising Lot 1023 for Excelsior Drive;
(b)caused to be constructed thereon Excelsior Drive; and
(c)contributed to the cost of road pavement, kerbing, associated drainage and ducting to that part of Excelsior Drive that had a common boundary with Lot 3."
In my opinion there are a number of allegations of material fact comprised in par 8. Being ambiguous, the defendant’s pleading is ineffective. The plaintiff’s allegations ought to be deemed admitted. Regardless of that observation, the evidence of Chiera at pars 12, 14 and 18 is as follows:
"12.In or around January 2003 the Plaintiff made application to the Western Australian Planning Commission ("the WAPC") to sub‑divide Lot 1023 in accordance with a document known as Deposited Plan 35728 and thereafter, on or about 6 June 2003, the WAPC endorsed its approval to Deposited Plan 35278.
14.Deposited Plan 35728:
(a)dedicated a road for use by the public now known as Excelsior Drive; and
(b)…
18.The plaintiff caused the construction of Excelsior Drive to be completed on or about 14 March 2003 as part of the requirements to effect the subdivision of Lot 1023 and, in that regard, paid the sum of $93,297.00 to do so."
The defendant brings no evidence in relation to the allegations in par 8 of the statement of claim and in the course of the hearing raised no issue in relation to that evidence. Taking each of those considerations into account I ought not to be troubled by the non‑admission of the allegations of the plaintiff made at par 8.
In contrast with the defendant's response to par 8 of the statement of claim she denies its corresponding pleading at par 10 that relates to the provision for and contribution to the cost of construction of Darcy Street. On the same reasoning that I have already applied, properly considered the close of pleadings reveals that there is no effective denial of the allegations expressed at par 10 of the statement of claim and they are deemed to be admitted.
In any event the relevant evidence upon which the plaintiff relies is expressed at par 23 of Chiera's affidavit as follows:
"The plaintiff caused the construction of Darcy Street to be completed on or about 17 March 2004 as part of the requirements to effect the subdivision of Lot 9000 and, in that regard, paid the sum of $64,612.00 to do so."
The defendant brought no relevant evidence and raised no contest in relation to Chiera’s evidence. Taking each of those considerations into account I ought not to be troubled by the denial of the allegations of the plaintiff made at par 8.
In my opinion upon the close of pleadings I ought be satisfied that the plaintiff was an original subdivider for the purposes of s 159(1), that by its subdivisions lots had been generated that have common boundaries with either Excelsior Drive or Darcy Street and that it had either contributed to or bore solely the cost of providing and constructing both Excelsior Drive and Darcy Street.
On that analysis of the plaintiff’s pleading, the remaining matters for consideration are the denial that the defendant subdivided Lot 3, the non‑admission of the contention that she was a "later subdivider" for the purposes of s 159(1)(a) of the Act and that she is liable to contribute to the costs of construction of portions of Excelsior Drive and Darcy Street. The only allegations of the defendant are that she was a registered proprietor of Lot 3 until 11 June 2006 and that after that time other persons became registered as proprietors of the land into which Lot 3 had been sub‑divided.
The defendant relied on the evidence of Michael Gosatti. In his affidavit of 21 June 2007 Gosatti identifies himself as a director of Goldspire Corporation Pty Ltd ("Goldspire") who according to par 11, "in or around May 2006" became the registered proprietor of Lot 9010, a lot created upon the subdivision of Lot 3. According to Gosatti’s evidence Goldspire agreed to purchase a portion of Lot 3 and that agreement was conditional upon it obtaining approval for subdivision of Lot 3 at its cost. At par 9 he deposes that Goldspire lodged the applications for subdivision in or around April 2005. On that evidence the defendant submitted that she is not a "later subdivider" as that status ought to be accorded to Goldspire.
Section 161 of the Act is as follows:
"For the purposes of this Division land is subdivided on the date on which the approval of the Commission is endorsed on the diagram or plan of survey relating to the subdivision of the land."
Although I do not recall that the issue of leave for the plaintiff to rely upon the affidavit of Frank Anthony Chiera sworn 24 July 2007 was canvassed at the hearing, it discloses that on 22 April 2005 the defendant had signed the application for subdivision of Lot 3. Chiera deposes that the copy of the application was provided to him in response to his solicitors’ request that it was received on 23 July 2007. The fact that its receipt may be considered to have been late is of no particular significance as it is for the applicant to determine whether it brings an application, when it does so and how it would be founded. The significant consideration is that the material for which the plaintiff would require leave reveals a fact that is contrary to the defendant’s primary submission. The case law on point with which I am familiar would limit the scope for the applicant to bring contradictory evidence to circumstances where it would be considered to be conclusive. Be that as it may, my appreciation is that in those cases the court did not seek to define the limited scope for a grant of leave but rather whether leave would be appropriately granted. In my opinion where the defendant puts a submission that is contrary to the material upon which the plaintiff seeks to rely it would be appropriate to grant leave in order to evaluate the submission.
It seems to me that for the purposes of s 159, the significant consideration is neither who may have been the registered proprietor of subdivided land nor who may have undertaken the works associated with the process of subdivision but rather who actually subdivided land. Subdivision is the result of a process commenced by application. Contrary to her submission I am satisfied that the defendant was the applicant. In my opinion it is clear that the defendant is the person intended to be subject to the consequence expressed in s 159.
As to the defendant’s allegation that she was not the registered proprietor of Lot 3 after 11 June 2006, the plaintiff’s case is that at all material times the defendant was the proprietor of that lot. For the purposes of its claim the last material date was that of the subdivision of Lot 3 which the defendant admits was "On or about 1 February 2006". The defendant’s allegation is irrelevant.
The particular consideration raised for consideration under her denial of liability was the defendant’s contention that upon the generation of Lot 9010 by the subdivision of Lot 4, Lot 9010 and Darcy Street did not share a common boundary. That was because Darcy Street was perpendicular to the boundary of Lot 9010. Accordingly she contended that the plaintiff’s claim with respect to Darcy Street is not within the scope of s 159(1). In the course of submissions the parties referred to the later subdivision of Lot 9010 by which Darcy Street was extended into what then may be described as the former Lot 9010 from which a number of new lots generated, five of which have a common boundary with that extension. In my opinion that result is clearly different from that which emerged upon the subdivision that generated Lot 9010. Lot 9010 did not share a common boundary with Darcy Street; Darcy Street then terminated at the boundary of Lot 9010.
It would be relatively easy to recognise that upon the subdivision of Lot 9010 the subdivider had been obliged to join that part of Darcy Street so generated to the existing portion of Darcy Street however the plaintiff's claim is not so put.
There was no similar issue raised in relation to the claim generated under the provision in relation to Excelsior Drive.
The only other issue raised by the defendant relates to the extent of the plaintiff's entitlement. Thereby implicitly she accepts that the plaintiff was entitled to a contribution by some measure.
It follows that insofar as the application relates to Excelsior Drive the application ought to succeed and otherwise it should be dismissed.