McClymont v Nelson - [2023] QSC 59

SUPREME COURT OF QUEENSLAND

CITATION:

McClymont & Anor v Nelson & Anor [2023] QSC 59

PARTIES:

Alister Robert McClymont

(First Applicant)

Joanne Therese McClymont

(Second Applicant)

v

Barry Lloyd Nelson

(First Respondent)

Cheryl Doreen Nelson
(Second Respondent)

FILE NO/S:

SCR No 1244 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Townsville

DELIVERED ON:

23 March 2023

DELIVERED AT:

Townsville

HEARING DATE:

11 March 2022

JUDGE:

North J

ORDER:

1.   Judgment for the respondents in the proceeding against the applicants.

2.   The Originating Application is dismissed.

3.   Unless otherwise agreed the parties are to submit within 21 days written outlines (not exceeding two pages) with respect to costs.

CATCHWORDS:

REAL PROPERTY – EASEMENTS – STATUTORY RIGHT OF USER – WATER – SUMMARY JUDGMENT

LEGISLATION:

Property Law Act 1974 (Qld), s 180

Water Act 2000 (Qld), s 5, s 26, s 27, s 96, s 119

Uniform Civil Procedure Rules, s 293

CASES:

Attorney-General v Ngati Apa [2003] 3 NZLR 643

Biki Anor v Chessels (2004) V Conv R 54-692
Bradford v Pickles [1895] AC 587
Chasemore v Richards (1859) 11 ER 140
CSR Limited v Casaron Pty Ltd & Ors [2002] QSC 021
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Elston v Dore (1982) 149 CLR 480
Foodco Management Pty Ltd v Go My Travel Pty Ltd [2002] Qd R 249
Manning v Wasdale (1836) 111 ER 1353
Nelson v Walker (1910) 10 CLR 560
Ohinetahi Ridge Ltd v Witte 2004 NZCA 20
Race v Ward (1855) 119 ER 259

Re Simeon [1937] Ch 525

COUNSEL:

Mr G Gibson KC with Mr Pyle for the Respondent Applicants

Mr Forbes for the Applicant Respondents

SOLICITORS:

Crosby Brosnan & Creen Lawyers for the Respondent Applicants
Connie Navarro Legal for the Applicant Respondents

Introduction

The applicants (“plaintiffs”) are the registered owners of freehold land and the permittees under a Permit to Occupy land operated as a cattle station located near Richmond known as “Wilburra Downs”.
The respondents (“defendants”) are the registered lessees and permittees of land near Richmond on which there is a cattle station known as “Moselle Downs”.
The defendants acquired their interests in 1992.
On one of the boundaries of the cattle stations the respective properties are opposite the other separated by the Flinders Highway and the Mount Isa railway line.
Since approximately 1924 an artesian water bore known as “Moselle Siding Bore” has existed on Moselle Downs. It is upon that part of Moselle Downs comprised by the “Rolling Term Lease”, Lot 4 Crown Plan RM76 (Title Reference 40018336). It is situated approximately 100 metres south of the Flinders Highway / Mount Isa railway line.
The plaintiffs purchased Wilburra Downs in about December 2005 and on 10 August 2018 the leasehold interests were converted to freehold and the plaintiffs were registered as proprietors as joint tenants.
For many years including before the plaintiffs purchased Wilburra Downs water from the bore was sourced by the proprietors of Wilburra Downs for use in…

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.

Continue reading McClymont v Nelson

Details

AGLC: McClymont v Nelson [2023] QSC 59
Case: [2023] QSC 59
Decision Date: 23 March 2023

CaseChat Overview and Summary

In the case of McClymont v Nelson, the dispute involved an easement for water extraction from a bore on land owned by the defendants, Nelson, and used by the plaintiffs, McClymont. The matter was brought before the Queensland Supreme Court, where the defendants sought summary judgment under the Uniform Civil Procedure Rules 1999 (UCPR). The defendants argued they were the rightful licensees for water extraction, not the plaintiffs. The plaintiffs contended that under section 96(2) of a relevant statute, they, as the property owners, were entitled to take water from the bore for stock purposes.

The legal issues the court had to resolve centred on whether the plaintiffs had any real prospect of succeeding in their claim and if there was any need for a trial. The defendants' submissions relied heavily on the principle that summary judgment should only be granted in the clearest of cases where success is improbable. They cited cases like Deputy Commissioner of Taxation v Salcedo and CSR Limited v Casaron Pty Ltd & Ors to support their argument that a trial should only be avoided if it is clear the plaintiff has no chance of success or if the factual basis for the claim is without substance. The plaintiffs' response reiterated their statutory entitlement to extract water for stock purposes.

The court assessed the submissions and applied the principles from the cited cases. It noted that the application for summary judgment should be treated cautiously to avoid denying the plaintiffs an opportunity to present their case. The court found that the plaintiffs' claim had a real prospect of success given the statutory provisions and the plaintiffs' position as property owners. Consequently, the court decided that the defendants’ application for summary judgment was not appropriate and dismissed it. The court also ordered that the parties submit written outlines on costs within 21 days unless otherwise agreed.

Judgment was rendered in favour of the respondents, the Nelsons, dismissing the plaintiffs’ proceeding. The Originating Application was dismissed, and the parties were directed to submit written outlines concerning costs within a specified timeframe.

Orders

Orders of the court

1. Judgment for the respondents in the proceeding against the applicants.

2. The Originating Application is dismissed.

3. Unless otherwise agreed the parties are to submit within 21 days written outlines (not exceeding two pages) with respect to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The third reason can be summarised quite briefly as the submissions were short. Essentially the defendants submitted that they were the licensees and it was they not the plaintiffs who were entitled to take water from the bore. In response the plaintiffs’ Counsel effectively repeated the submission made in relation to s 96 (2) in the circumstance where the licence is for “stock purposes”.Consideration of the Application The defendants seek summary judgment under UCPR 293. The application maybe made at any time after filing a defence. To succeed the Court must be satisfied that the plaintiff has “no real prospect of succeeding” and that “there is no need for a trial”. The principles are not in doubt. In their Outline the defendants submitted: “[16] The phrase “no real prospect of success” is intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [3] (McMurdoP). A party is not to be denied the opportunity to place his or her case before the court in the ordinary way, except in the clearest of cases; Salcedo at [3] (McMurdoP).[17] The court should treat applications for judgment by defendants cautiously as a plaintiff should not be prevented from advancing a case that might possibly succeed.[18] In CSR Limited v Casaron Pty Ltd & Ors [2002] QSC 021 Homes J applied Lord Hope’s observations in Three Rivers DC v Bank of England (No. 3) [2001] 2 All ER 513 in considering whether a defendant resisting summary judgment has prospects of successfully defending, citing the following passage:“It may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases, it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be [to] take that view and resort to what is properly called summary judgment but more complex cases are unlikely to be capable of being resolved that way without conducting a mini trial on the documents without discovery and without oral evidence. As Lord Woolf MR said in Swain’s case [2001] 1 All ER 91 at 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”[19] If there is a real prospect of success, the discretion to give summary judgment does not arise merely because the court concludes that success is improbable: Foodco Management Pty Ltd v Go My Travel Pty Ltd [2002] 2 Qd R 249, 254 (Wilson J).”

CITATION:	McClymont & Anor v Nelson & Anor [2023] QSC 59
PARTIES:	Alister Robert McClymont (First Applicant) Joanne Therese McClymont (Second Applicant) v Barry Lloyd Nelson (First Respondent) Cheryl Doreen Nelson (Second Respondent)
FILE NO/S:	SCR No 1244 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Townsville
DELIVERED ON:	23 March 2023
DELIVERED AT:	Townsville
HEARING DATE:	11 March 2022
JUDGE:	North J
ORDER:	1. Judgment for the respondents in the proceeding against the applicants. 2. The Originating Application is dismissed. 3. Unless otherwise agreed the parties are to submit within 21 days written outlines (not exceeding two pages) with respect to costs.
CATCHWORDS:	REAL PROPERTY – EASEMENTS – STATUTORY RIGHT OF USER – WATER – SUMMARY JUDGMENT
LEGISLATION:	Property Law Act 1974 (Qld), s 180 Water Act 2000 (Qld), s 5, s 26, s 27, s 96, s 119 Uniform Civil Procedure Rules, s 293
CASES:	Attorney-General v Ngati Apa [2003] 3 NZLR 643 Biki Anor v Chessels (2004) V Conv R 54-692 Bradford v Pickles [1895] AC 587 Chasemore v Richards (1859) 11 ER 140 CSR Limited v Casaron Pty Ltd & Ors [2002] QSC 021 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Elston v Dore (1982) 149 CLR 480 Foodco Management Pty Ltd v Go My Travel Pty Ltd [2002] Qd R 249 Manning v Wasdale (1836) 111 ER 1353 Nelson v Walker (1910) 10 CLR 560 Ohinetahi Ridge Ltd v Witte 2004 NZCA 20 Race v Ward (1855) 119 ER 259 Re Simeon [1937] Ch 525
COUNSEL:	Mr G Gibson KC with Mr Pyle for the Respondent Applicants Mr Forbes for the Applicant Respondents
SOLICITORS:	Crosby Brosnan & Creen Lawyers for the Respondent Applicants Connie Navarro Legal for the Applicant Respondents