McEachern v McLaren-Kennedy
[2014] QDC 25
•3 February 2014
DISTRICT COURT OF QUEENSLAND
CITATION: | McEachern & Anor v McLaren-Kennedy & Anor [2014] QDC 25 |
PARTIES: | IAN DRUITT MCEACHERN AND ANOTHER (Plaintiffs) v JOHN LEONARD MCLAREN-KENNEDY AND ANOTHER (Defendants) |
FILE NO/S: | 272/2013 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland at Southport |
DELIVERED ON: | Ex tempore 3 February 2014 |
DELIVERED AT: | Southport |
HEARING DATE: | 3 February 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. Plaintiffs’ claim is struck out 2. Plaintiffs to pay the Defendants’ costs of the proceedings including this application on the standard basis |
CATCHWORDS: | PRACTICE - Damages - District Court - Injunctions and declarations - Jurisdiction - Particulars - Statement of claim - Plaint - Striking out - Summary judgment for the defendant - r293 - where the Plaintiffs claim damages for nuisance - where the Plaintiffs claim injunctions to restrain the Defendants from interfering with the easement - where the Plaintiffs claim costs associated with any work necessary to rectify interference with the easement - where the Defendants apply for summary judgment against the Plaintiffs - whether the Plaintiffs’ claim should be struck out for failing to adequately particularise the relevant facts - whether the matter falls within the monetary jurisdiction of the District Court of Queensland - whether the Plaintiffs adequately particularise their claim for damages - whether the Plaintiffs’ claim should be struck out for falling outside of the monetary jurisdiction of the District Court of Queensland Legislation District Court of Queensland Act 1967 (Qld) s 68 Uniform Civil Procedure Rules 1999 (Qld) r 293 |
COUNSEL: | Mr MJ Campbell for the Plaintiffs Mrs DW Worrell for the Defendants |
SOLICITORS: | MacGregor O’Reilly Solicitors for the Plaintiffs AVA Solicitors for the Defendants |
HIS HONOUR: The Plaintiffs in these proceedings claim damages for nuisance not exceeding the jurisdiction of this court. Further, they claim injunctions, firstly, restraining the Defendants by themselves as servants or agents from further interfering with an easement, and an injunction requiring the Defendants by themselves as servants or agents to remove from the easement the vegetation, fence, gate, and other obstructions, which prevents access along the easement. The Plaintiffs also claim costs associated with any work necessary to be performed by the Plaintiffs pursuant to the Defendants’ rectification of this easement. The Defendants, without referring to every aspect of their defence, deny having breached their duties and obligations and deny the Plaintiffs are entitled to damages or injunctions as sought by the Plaintiffs.
Basically, in 1987, a rural estate situated on Baileys Road in Tallai was subdivided into three separate lots. The lot closest to Baileys Road was approximately rectangular in shape, and the other two lots were configured in the shapes of battleaxes, the handles of which run out to Baileys Road. The Plaintiffs are the registered proprietors of lot 3 which is the furtherest away from Baileys Road. The Defendants are the registered proprietors of lot 2 which is between lot 1 and lot 3. The male Plaintiff was the original owner of the rural estate and was the registered proprietor of lots 2 and 3 following the subdivision. Lot 2 was first sold to an unrelated party in approximately 1993. A number of transfers of the title have occurred over the years, and the Defendants became the registered proprietors in 2005. At some time, possibly in 2007, the female Plaintiff, who is the daughter of the male Plaintiff, became a joint tenant with her father of lot 3.
On the evidence before me, it appears the Defendants and the male Plaintiff maintain good neighbourly relations. However, the relationship seems to have soured some time late in 2012. That souring of the relationship seems to have coincided with the male Plaintiff’s daughter corresponding with the Defendants regarding steps to be taken by the female Plaintiff wanting to install a gate on easement A and also about moving the fence between easements A and B. The Defendants and the female Plaintiff met and carried out very rough measurements that appeared to indicate that the fence was out by about 50 centimetres. Over the course of the month of September 2012, there was an exchange of emails between the Defendants and the female Plaintiff, discussing the engaging of a surveyor and removal and replacement of the fence.
On 1 October 2012, the Defendants emailed the female Plaintiff with a possible solution. The basis of the suggestion was that:
We have an access easement on your land right up to our common border that we never use and can never see ourselves needing to use it. The current border fence between easements A and B has been in place for years, probably 25 based on the date of the attached plans, so we could merely formalise an agreement that has been in place all this time.
The Defendants then set out the mechanics of how the easement could be modified. Unfortunately, the proposal was unacceptable to the female Plaintiff. As I said, the relationship seemed to sour.
The female Plaintiff alleged that she had spoken to a vegetation management officer about the felling of trees on the easement. Then there was a demand made by the female Plaintiff on 16 November 2012 by letter in which she said, “You, at your cost, remove the vegetation from easement B back to your natural boundary line, remove any structure on easement B and remove the gate to allow unimpeded access along easement B to give effect to the terms of the easement.” In the same letter, the female Plaintiff offered to share the cost of erecting a basic fence on the property boundary line.
On the evidence before me, it seems this was the first time any issue in relation to the removal of vegetation on easement B had been raised in any correspondence from the female Plaintiff. The Defendants wrote to the female Plaintiff via their solicitor to the female Plaintiff’s solicitors, advising that they were willing in consultation with the female Plaintiff to arrange a gate at the top of easement B, that in conjunction with the existing unlocked gate, will allow access to easement B. There was no further correspondence between the parties until 5 July 2013 when the female Plaintiff emailed the Defendants, complaining about the male Defendant having sprayed weed killer at the fence line.
By letter dated 26 July 2013, the female Plaintiff, through her new lawyers, sent a letter to the Defendants: “We are instructed that you continue to unlawfully obstruct easement A.” This letter was sent attached to an email, and within the covering email, the solicitor wrote: “Please see attached letter regarding your continued obstruction of easement B.” I accept that all the parties intended this letter to refer to easement B.
By email dated 26 July 2013, the Defendants reiterated their previous offer to arrange for a gate. The female Plaintiff’s solicitors responded by email:
Please confirm that this letter includes the safe and effective removal at your own cost of the trees, garden, fencing, vegetation, the entrance gate, and any other structure currently obstructing easement B, and the relocation of the fence line to the lawful boundary of your property. Your offer as it stands is declined as it does not purport to rectify the legal nuisance, that is, your interference with our client’s lawful use of the easement.
By email dated 2 August 2013, the Defendants responded to the female Plaintiff’s solicitor, explaining that the offer was not as set out in her email, but was simply to arrange together with her for a gate. Then the proceedings were commenced on 21 August 2013 by the Plaintiffs. A defence was filed on 13 September 2013. The Defendants sought further and better particulars of the statement of claim. A response was served and filed. On 1 October 2013, a reply was filed.
The application before me, which is for summary judgment, has been brought by the Defendants by application filed on the 9th of January 2014. Rule 293 of the UCPR[1] provides, in subsection (1):
[1] Uniform Civil Procedure Rules 1999 (Qld).
A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.
Subsection (2) provides:
If the court is satisfied -
(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and
(b) there is no need for a trial of the claim or the part of the claim;
the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.
Substantial affidavits have been filed by both parties. There is evidence from one party which is contradicted by another party. In particular, I have regard to the issue about the trees and whose obligation it might be to remove trees or whether they can be removed at all. That issue is not something I can decide in this application, that is, I cannot come to a concluded view about it. It has been submitted by counsel for the Defendants that the success of the Plaintiffs’ claim is critically dependent on whether the Defendants have an obligation to clear vegetation on the easement. It is submitted that an examination of the facts and an analysis of the relevant law would lead me to conclude that the Plaintiffs’ claim cannot succeed. As I have said, having regard to the contents of both sides’ substantial affidavits, I cannot come to that conclusion.
It has also been submitted that the Plaintiffs do not have jurisdiction. It is clear to my mind that section 68 of the District Court of Queensland Act 1967[2] requires that before I could grant injunctions, I have to first be satisfied there is jurisdiction conferred on the court by section 68. In this matter, I am satisfied that the Plaintiffs’ claim does not properly particularise the claim for damages. The Plaintiffs have not set out what would have to be done and the cost of what would have to be done. In my opinion, the statement of claim is vague and lacking in particularity, and, in the end, I am satisfied it does not specify a monetary claim. It does not particularise a monetary claim. That is particularly the case with the claim for general damages for nuisance and the claim for exemplary damages. There was argument about whether the Plaintiffs’ claim is a matter within the jurisdiction of the District Court. I would not send this matter to the Supreme Court when one considers the terms of the statement of claim. In addition, I do not accept a basis for damages has been set out. That is, I am satisfied no basis is set out for damages, let alone what they might be in terms of quantum. Clearly, if it was said the claim might come within the Magistrates Court jurisdiction, again, I am not satisfied there is a monetary value here in these allegations.
[2] District Court of Queensland Act 1967 (Qld).
Therefore, I have come to the view that the Plaintiffs’ claim should be struck out on the ground that this court does not have jurisdiction to entertain it. The way the claim is pleaded, it has a tendency to prejudice or delay the fair trial of the proceeding because the Plaintiffs fail to plead the necessary facts as to why the Defendants were obliged to do anything to remedy the offending behaviour, how any of the offending behaviour amounted to substantial interference with the use of the easement, the quantum or basis of calculation of damages and the quantum or basis for entitlement to aggravated damages – I said before exemplary damages. And it’s for that reason, therefore I’ve come to the view that the Plaintiffs’ claim should be struck out.
HIS HONOUR: Yes. In this matter, I am not satisfied there are any special circumstances to order the Plaintiffs to pay the costs on an indemnity basis. Certainly and I’ll put on notice and there are other alternatives, but the Plaintiffs have not availed themselves of it – of those other alternatives. Even so, I do not accept that amounts to special circumstances to warrant ordering that the costs be on the indemnity basis. Therefore, the order I make is that the Plaintiffs pay the Defendants’ costs of the proceedings including this application on the standard basis. And I repeat that the order I ultimately make in this application is that the Plaintiffs’ proceedings are struck out.
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