M Salazar Properties Pty Ltd v Jeffs - [2024] QCA 257

SUPREME COURT OF QUEENSLAND

CITATION:

M Salazar Properties Pty Ltd v Jeffs [2024] QCA 257

PARTIES:

M SALAZAR PROPERTIES PTY LTD
ACN 648 288 671
(appellant)
v
JUSTIN NOEL JEFFS
(respondent)

FILE NO/S:

Appeal No 3975 of 2024
SC No 10187 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2024] QSC 9 (Hindman J)

DELIVERED ON:

17 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2024

JUDGES:

Flanagan and Boddice JJA and Kelly J

ORDERS:

1.    The appellant’s application for leave to adduce further evidence filed 22 August 2024 is refused.

2.    The respondent’s application for leave to adduce further evidence filed 26 July 2024 is granted.

3.   The appellant’s appeal is dismissed.

4.   The respondent’s cross-appeal is allowed.

5.    The second amended originating application filed 21 August 2023 is dismissed.

6.    The orders dated 16 May 2024 be set aside, with the exception of order 17, which be varied by substituting the sum of $37,105.38 for the sum $40,000.00.

7.    The appellant pay the respondent’s costs of the appeal, the notice of contention and the cross-appeal.

CATCHWORDS:

REAL PROPERTY – EASEMENTS GENERALLY – GRANT OF EASEMENT – STATUTORY RIGHT OF USER – where the appellant seeks to subdivide its property and therefore requires a drainage easement over an adjacent property belonging to the respondent – where the appellant requires approval from a local council before it can proceed with its subdivision – where the respondent refused to agree to grant an easement over his property, so the appellant brought proceedings under s 180 of the Property Law Act 1974 (Qld) – where the primary judge granted the appellant a statutory right of user in the form of an easement subject to the fulfillment of various conditions – where the appellant appeals against the conditions which were imposed – where the respondent cross‑appeals on the ground that the appellant’s application below lacked sufficient clarity so as to engage the Court’s jurisdiction under s 180 – where the respondent contends that the appellant sought, and continues to seek on appeal, an easement in dimensions and on conditions which are variable at the discretion of the local council – whether the appellant sought an easement in terms which lacked sufficient clarity

REAL PROPERTY – EASEMENTS GENERALLY – GRANT OF EASEMENT – STATUTORY RIGHT OF USER – where the appellant seeks to subdivide its property and therefore requires a drainage easement over an adjacent property belonging to the respondent – where the appellant requires approval from a local council before it can proceed with its subdivision – where the respondent refused to agree to grant an easement over his property, so the appellant brought proceedings under s 180 of the Property Law Act 1974 (Qld) – where s 180 requires as a pre‑condition that the respondent to an application has unreasonably refused to agree to the easement – where the primary judge found that the respondent’s refusal to accept the appellant’s final offer…

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: [2024] QCA 257
Decision Date: 17 December 2024

CaseChat Overview and Summary

The case of M Salazar Properties Pty Ltd v Jeffs involves a dispute over the grant of a drainage easement over adjacent properties in Bellbird Park, Queensland. Salazar Properties, seeking to subdivide its property, required a drainage easement over an adjacent property owned by Mr Jeffs. The dispute arose when Mr Jeffs refused to grant the easement, leading Salazar Properties to bring proceedings under s 180 of the Property Law Act 1974 (Qld). The primary judge granted Salazar Properties a statutory right of user in the form of an easement, subject to certain conditions. Salazar Properties appealed against these conditions, while Mr Jeffs cross-appealed on the ground that Salazar Properties’ application lacked sufficient clarity to engage the court’s jurisdiction under s 180.

The primary legal issues addressed by the court were whether Salazar Properties’ application for an easement was sufficiently clear to engage the court’s jurisdiction under s 180 of the Property Law Act, and whether Mr Jeffs’ refusal to agree to the easement was unreasonable. Salazar Properties argued that its application was sufficiently clear, while Mr Jeffs contended that the application lacked clarity, particularly in terms of the precise dimensions and conditions of the easement. The court had to determine if the application was clear enough to warrant the exercise of the court’s discretion under s 180, and if Mr Jeffs’ refusal to agree to the easement was unreasonable.

The court found that Salazar Properties’ application lacked sufficient clarity to engage the court’s jurisdiction under s 180. The court observed that the easement sought by Salazar Properties was variable in terms of its dimensions and conditions, which were to be determined by the local council. This lack of clarity meant that the application did not meet the pre-condition of s 180, which requires the respondent to have unreasonably refused to agree to the easement. The court also found that Mr Jeffs’ refusal was reasonable given the lack of clarity in the application. Consequently, the appeal was dismissed, and the cross-appeal was allowed.

The final orders of the court were that the appellant’s application for leave to adduce further evidence was refused, while the respondent’s application for leave to adduce further evidence was granted. The appellant’s appeal was dismissed, and the respondent’s cross-appeal was allowed. The second amended originating application was dismissed, and the orders dated 16 May 2024 were set aside, with the exception of order 17, which was varied. The appellant was ordered to pay the respondent’s costs of the appeal, the notice of contention, and the cross-appeal.

Orders

Orders of the court

1. The appellant’s application for leave to adduce further evidence filed 22 August 2024 is refused.

2. The respondent’s application for leave to adduce further evidence filed 26 July 2024 is granted.

3. The appellant’s appeal is dismissed.

4. The respondent’s cross-appeal is allowed.

5. The second amended originating application filed 21 August 2023 is dismissed.

6. The orders dated 16 May 2024 be set aside, with the exception of order 17, which be varied by substituting the sum of $37,105.38 for the sum $40,000.00.

7. The appellant pay the respondent’s costs of the appeal, the notice of contention and the cross-appeal.

Background

Background to the litigation

The issue arises in the following context, which is informed by the way in which Salazar Properties has conducted itself both at first instance and on appeal. The factual background and procedural history of the matter is only set out so far as is necessary to demonstrate that the easement which was sought lacked sufficient clarity to engage the court’s jurisdiction and enliven an exercise of its discretion under s 180.Relevant Background Salazar Properties is a company through which its director, Ms Salazar, carries on the business of property development. Ms Salazar’s partner is Mr Merlo. Although Mr Merlo is a solicitor and acted on behalf of Salazar Properties in negotiations at various times leading up to and during the proceedings, he was not the solicitor on the record for Salazar Properties until after the commencement of this appeal, on 10 June 2024. At trial, the primary judge gave leave for Mr Merlo to appear for Salazar Properties. The proceedings concern three adjacent residential lots which are located between Perdita Street and Rosemary Street in Bellbird Park, Queensland. Salazar Properties owns Lot 199, and Mr Jeffs owns Lot 197. A third party, Mr Pressler, owns Lot 200. The diagram below was included in her Honour’s reasons and depicts the lots in relation to each other: Both Mr Jeffs’ Lot 197 and Mr Pressler’s Lot 200 have rear access to Perdita Street. The lot owned by Salazar Properties, Lot 199, fronts Rosemary Street, but has no access to Perdita Street. Salazar Properties bought its lot in August 2021 with the intention of subdividing it to include additional residences.[2] After consulting a town planning expert, it became apparent that in order to facilitate the subdivision, the lot would require a roof water and stormwater solution, in order to deal with water collected and discharged from the proposed additional residences.[3] Due to the gradient of the land, however, the water drainage would have to pass downhill from the proposed additional residences, from the direction of Rosemary Street through to Perdita Street.[2]Reasons, [12].[3]Reasons, [13]–[14]. Given Lot 199 has no rear access to Perdita Street, shortly after purchasing Lot 199, Salazar Properties (through Ms Salazar and Mr Merlo) commenced some preliminary discussions with both Mr Jeffs and Mr Pressler. They enquired if Mr Jeffs would be interested in selling whole or part of his lot to them, which he was not.[4] On 3 August 2021, they made a proposal to Mr Jeffs that included three alternative possible offers to sell a part or the whole of his property.[5] He still was not interested. Mr Merlo discussed with Mr Jeffs the possibility of installing a granny flat arrangement instead. There was disagreement as to whether an enforceable agreement had been reached. The primary judge expressly refrained from making any findings in this respect, and observed that it was only relevant “because, unsurprisingly, [Salazar Properties’] conduct, through Mr Merlo, made [Mr Jeffs] cautious about [it] and its development plans … from at least that point onwards”.[6][4]Reasons, [15].[5]Reasons, [17].[6]Reasons, [18]–[19].

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:	M Salazar Properties Pty Ltd v Jeffs [2024] QCA 257
PARTIES:	M SALAZAR PROPERTIES PTY LTD ACN 648 288 671 (appellant) v JUSTIN NOEL JEFFS (respondent)
FILE NO/S:	Appeal No 3975 of 2024 SC No 10187 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2024] QSC 9 (Hindman J)
DELIVERED ON:	17 December 2024
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2024
JUDGES:	Flanagan and Boddice JJA and Kelly J
ORDERS:	1. The appellant’s application for leave to adduce further evidence filed 22 August 2024 is refused. 2. The respondent’s application for leave to adduce further evidence filed 26 July 2024 is granted. 3. The appellant’s appeal is dismissed. 4. The respondent’s cross-appeal is allowed. 5. The second amended originating application filed 21 August 2023 is dismissed. 6. The orders dated 16 May 2024 be set aside, with the exception of order 17, which be varied by substituting the sum of $37,105.38 for the sum $40,000.00. 7. The appellant pay the respondent’s costs of the appeal, the notice of contention and the cross-appeal.
CATCHWORDS:	REAL PROPERTY – EASEMENTS GENERALLY – GRANT OF EASEMENT – STATUTORY RIGHT OF USER – where the appellant seeks to subdivide its property and therefore requires a drainage easement over an adjacent property belonging to the respondent – where the appellant requires approval from a local council before it can proceed with its subdivision – where the respondent refused to agree to grant an easement over his property, so the appellant brought proceedings under s 180 of the Property Law Act 1974 (Qld) – where the primary judge granted the appellant a statutory right of user in the form of an easement subject to the fulfillment of various conditions – where the appellant appeals against the conditions which were imposed – where the respondent cross‑appeals on the ground that the appellant’s application below lacked sufficient clarity so as to engage the Court’s jurisdiction under s 180 – where the respondent contends that the appellant sought, and continues to seek on appeal, an easement in dimensions and on conditions which are variable at the discretion of the local council – whether the appellant sought an easement in terms which lacked sufficient clarity REAL PROPERTY – EASEMENTS GENERALLY – GRANT OF EASEMENT – STATUTORY RIGHT OF USER – where the appellant seeks to subdivide its property and therefore requires a drainage easement over an adjacent property belonging to the respondent – where the appellant requires approval from a local council before it can proceed with its subdivision – where the respondent refused to agree to grant an easement over his property, so the appellant brought proceedings under s 180 of the Property Law Act 1974 (Qld) – where s 180 requires as a pre‑condition that the respondent to an application has unreasonably refused to agree to the easement – where the primary judge found that the respondent’s refusal to accept the appellant’s final offer…