Litz v State of Queensland

[1999] QCA 401

COURT OF APPEAL [1999] QCA 401

PINCUS JA
THOMAS JA

CULLINANE J

Appeal No 10762 of 1998

HORST WILHELM LITZ	Appellant
and
STATE OF QUEENSLAND	Respondent
BRISBANE
..DATE 20/09/99
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PINCUS JA: This is an appeal from the judgment of Ambrose J given in an application made by

the respondent, the State of Queensland, for leave under O.90 r.9 to deliver a defence and

counterclaim in an action and on an application made by the appellant, Mr Litz, to strike out

Queensland's defence and counterclaim. The Judge granted Queensland's application and gave

Litz leave nunc pro tunc to make an application to strike out Queensland's defence and

counterclaim. His Honour made no order on the application to strike out.

There was a previous action related to the subject matter with which we are presently

concerned, but the writ in this action was issued in October 1994 by Mr Litz. It sought among

other relief a declaration that certain land is not within any national park and specific performance

of an agreement made in 1977 to extend a certain special lease in respect of the land just

mentioned for 30 years from

31 October 1988 - that is, to extend it to 31 October 2018. It also sought other relief. The

statement of claim was delivered on 3 April 1995. However, due to dilatoriness on the part of

the State of Queensland, no defence and counterclaim were delivered until more than three years

later, that is, on 28 April 1998. It is the fact that that pleading came in a little more than three

years later which has been the cause of the proceeding before Mr Justice Ambrose.

The appellant's case as set out in the statement of claim appears to have been primarily that he

was induced to take

a transfer of the land in question from the second defendants in the action (who have not been

served) upon an undertaking that on the expiry of the then current lease there would be a

renewal of the lease or a grant of a new lease for 30 years. The lease expired in 1988 and

thereafter the appellant held over without paying any rental. He is, it appears, still in possession.

The primary Judge thought there had been an inordinate delay on both sides and that both parties

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needed leave to proceed under Order 90 rule 9. His Honour was of the opinion that there was

no statutory limitation which would prevent either side from commencing fresh proceedings and

that the matters in question should be resolved quickly. He made the orders which I have

mentioned.

The appellant's outline says in effect that, since the Judge below gave Mr Litz leave to proceed,

there should be the judgment in default of pleading for him, although

Mr Harrison QC who appears today does not press that. It is nevertheless of interest to note

what would be involved in giving such a judgment. The judgment sought would be based upon

paragraphs (c) and (d) of the relief sought in the statement of claim, (c) being specific

performance and

(d) being a declaration. Specific performance is sought of an agreement to extend the lease; but

it is not alleged that there were any terms agreed other than the length of it and that seems a

hopeless application; and of course the Court would hardly make a declaration as to matters of

fact, without a trial.

In my opinion the appeal is devoid of any substance. But for the appellant Mr Litz's allegation

that an assurance was given by the State of Queensland with respect to renewal of the 30 year

lease or grant of a new lease, there could be no doubt that Queensland would be entitled to

possession.

Mr Litz remains in possession. The delay is obviously advantaging him and no doubt that has

influenced his course of conduct. The present proceeding has at least the appearance of a mere

timewasting device. I take the view that, whatever criticism might be advanced of the reasons

which His Honour gave (and I am not saying for a moment that the criticism was justified) the

result was plainly the only proper result which could be reached.

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The delay in this case has been very extensive. It obviously needs to get to trial quickly. The

idea that the whole affair should be extended by allowing this appeal and putting Queensland to

the trouble of starting another proceeding is not at all attractive.

In my opinion, there were perfectly good reasons for giving Queensland leave. They consisted in

the shortness of the time which was involved - only a matter of days over the three years - the

fact that Mr Litz is in possession paying nothing and the fact that the necessity of determining

whether he has any right to possession has existed for years. That question needs to be resolved

and as soon as possible. All these are good reasons for keeping this action on foot. I hope that

no further similar delays occur on either side.

The order which I would make is that the appeal be dismissed with costs.

THOMAS JA: I agree.

CULLINANE J: I also agree.

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