Odlin v River Rd Investments Pty Ltd - [2023] QSC 182

SUPREME COURT OF QUEENSLAND

CITATION: Odlin v River Rd Investments Pty Ltd [2023] QSC 182

PARTIES:

CHRISTOPHER BRIAN CHARLES ODLIN

(applicant)
v
RIVER RD INVESTMENTS PTY LTD
ACN 653 854 859
(respondent)

FILENO/S: BS No 6927 of 2023

DIVISION: Trial Division

PROCEEDING: Application

ORIGINATINGCOURT: Supreme Court at Brisbane

DELIVEREDON: 18 August 2023

DELIVEREDAT: Brisbane

HEARINGDATE: 6 July 2023

JUDGE: Kelly J

ORDERS:
1.   The application filed 22 June 2023 is dismissed.

2.   The application filed 22 June 2023 is dismissed.

3.   The originating application filed 8 June 2023 is dismissed.

4.   I will hear the parties as to costs.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS

ETC – where the parties own adjoining properties in the suburb of Redbank – where there is a registered easement that runs through the servient tenements, the applicant’s property and the common property of a non-party, the Body Corporate for Redbank Industrial Parkland Community Title Scheme 31664

– where the dominant tenement is the respondent’s property – where the applicant commenced a proceeding against the respondent in the District Court after becoming aware of works being performed on the easement by the respondent’s agent – where there was a hearing of the District Court proceeding during which the respondent contended that the easement was obsolete – where the District Court proceedings were adjourned – where, prior to the District Court hearing, the applicant filed an originating application in this Court seeking

to amend the originating application filed in the District Court

and seeking to have those proceedings transferred to this Court

– where the applicant filed an interlocutory application seeking to amend the originating application – whether there should be a grant of leave to amend the originating process filed in the District Court

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – NON-PARTY

INTERVENTION – where the applicant filed an interlocutory application seeking the joinder of a non-party, the Body Corporate for Redbank Industrial Parkland Community Title Scheme 31664 – whether the non-party ought be joined to the proceedings

Civil Proceedings Act 2011 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 62

Property Law Act 1974 (Qld), s 180, s 181

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Averono & Anor v Mbuzi & Anor [2005] QSC 6
Effeney v Millar Investments Pty Ltd [2011] NSWSC 708

Ex parte Proprietors of “A Veril Court” Building Units Plan No. 2001 [1983] 1 Qd R 66

General Steel Industries Inc v Commissioner for Railways
(NSW) (1964) 112 CLR 125; [1964] HCA 69

Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420
Re Wenck & Anor [2004] QSC 15

COUNSEL: A Moriarty (sol) for the applicant M D Martin KC for the respondent

SOLICITORS:
AXM Law for the applicant

Cooper Grace Ward for the respondent

An originating application and two interlocutory applications

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: [2023] QSC 182
Decision Date: 18 August 2023

CaseChat Overview and Summary

In the matter of Odlin v River Rd Investments Pty Ltd, the applicant, Odlin, sought to challenge the actions of the respondent, River Rd Investments, who owns a property adjacent to Odlin’s own. The dispute centres on a registered easement that traverses Odlin’s property and a common area controlled by a non-party entity, the Body Corporate for Redbank Industrial Parkland Community Title Scheme 31664, ultimately benefiting the respondent’s property. Odlin initiated proceedings in the District Court against River Rd Investments after discovering that the latter was undertaking works on the easement through their agent. During the District Court hearing, River Rd Investments argued that the easement had become obsolete. This matter was heard in the Supreme Court of Queensland, where Odlin had also filed an originating application prior to the District Court hearing.

The central legal issues addressed by the court involved the validity and scope of the registered easement, as well as the procedural aspects of amending the originating process and pleadings in light of the District Court proceedings. The court had to determine whether the easement was still in effect and, if so, what limitations or obligations were placed on the parties concerning its use and maintenance. Additionally, the court had to consider the procedural fairness and appropriateness of Odlin’s attempts to amend their claims and the overall management of the litigation process.

The court found that Odlin’s attempts to amend the originating process and pleadings were not in line with procedural fairness and the management of civil proceedings as outlined by the relevant statutes and case law. The court dismissed Odlin’s applications, emphasising the need for adherence to procedural rules and the importance of the initial pleadings in defining the scope of the legal issues. The court also noted that the validity of the easement and the actions taken on it would be better addressed in the ongoing District Court proceedings. The Supreme Court decided to hear submissions from both parties regarding the costs associated with the applications.

In conclusion, the Supreme Court dismissed the originating applications filed by Odlin and directed that the parties be heard regarding the costs of the applications. This decision underscores the importance of procedural compliance and the need for parties to clearly articulate their claims and defences in the initial pleadings.

Orders

Orders of the court

1. The application filed 22 June 2023 is dismissed.

2. The application filed 22 June 2023 is dismissed.

3. The originating application filed 8 June 2023 is dismissed.

4. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

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:	Odlin v River Rd Investments Pty Ltd [2023] QSC 182
PARTIES:	CHRISTOPHER BRIAN CHARLES ODLIN (applicant) v RIVER RD INVESTMENTS PTY LTD ACN 653 854 859 (respondent)
FILENO/S:	BS No 6927 of 2023
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATINGCOURT:	Supreme Court at Brisbane
DELIVEREDON:	18 August 2023
DELIVEREDAT:	Brisbane
HEARINGDATE:	6 July 2023
JUDGE:	Kelly J
ORDERS:	1. The application filed 22 June 2023 is dismissed. 2. The application filed 22 June 2023 is dismissed. 3. The originating application filed 8 June 2023 is dismissed. 4. I will hear the parties as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGS ETC – where the parties own adjoining properties in the suburb of Redbank – where there is a registered easement that runs through the servient tenements, the applicant’s property and the common property of a non-party, the Body Corporate for Redbank Industrial Parkland Community Title Scheme 31664 – where the dominant tenement is the respondent’s property – where the applicant commenced a proceeding against the respondent in the District Court after becoming aware of works being performed on the easement by the respondent’s agent – where there was a hearing of the District Court proceeding during which the respondent contended that the easement was obsolete – where the District Court proceedings were adjourned – where, prior to the District Court hearing, the applicant filed an originating application in this Court seeking to amend the originating application filed in the District Court