Perpetual Trustee Company Limited v Westfield Management Limited & Anor

[2007] HCATrans 274

[2007] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S166 of 2007

B e t w e e n -

PERPETUAL TRUSTEE COMPANY LIMITED

Applicant

and

WESTFIELD MANAGEMENT LIMITED

First Respondent

CITY OF SYDNEY COUNCIL

Second Respondent

GUMMOW ACJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 7 JUNE 2007, AT 9.41 AM

Copyright in the High Court of Australia

MR N.C. HUTLEY, SC:   If your Honour pleases, I appear with my learned friend, MR S. FLANIGAN, for the applicant.  (instructed by Deacons Lawyers)

MR B.W. WALKER, SC:   May it please your Honour, I appear for the first respondent.  (instructed by Speed and Stracey Lawyers)

MR E. KONDILIOS:   May it please your Honour, I appear for the second respondent (instructed by Maddocks Lawyers)

GUMMOW ACJ:   Thank you.  You move on a summons filed on 31 May, is that right, Mr Hutley?

MR HUTLEY:   Yes, your Honour, supported by an affidavit of Stephen Howard Klotz of the same date, your Honour.

GUMMOW ACJ:   Yes, all right.  Is there any opposition to the application for expedition?

MR WALKER:   Your Honour, I think, has seen our written submissions, which is not so much opposition as drawing to attention some prejudice in relation to dates which is entirely a matter for the Court, we accept.  We have simply drawn the information to your attention.  In relation to the question of out of time which is not before your Honour but which is ‑ ‑ ‑

GUMMOW ACJ:   It is going to loom, though.

MR WALKER:   That is so, but which is the reason why we are all here, there is the affidavit of Mr Robertson, which is in the application book at pages 91 and following to which some reference has been made in those submissions.

GUMMOW ACJ:   The conveyancing matter – what about the second respondent in relation to it?

MR KONDILIOS:   Your Honour, I am instructed to appear to inform the Court we do not oppose nor consent to the applications before the Court.

GUMMOW ACJ:   Thank you.  Yes, Mr Hutley.

MR HUTLEY:   As your Honour appreciates the – what your Honour has referred to as the conveyancing matter is set down for final hearing before the Court on 31 July.

GUMMOW ACJ:   On 31 July?

MR HUTLEY:   Yes, your Honour.

GUMMOW ACJ:   Are Mr Walker and yourself counsel in that?  You are, are you not?

MR HUTLEY:   Yes, your Honour.

GUMMOW ACJ:   Both of you?

MR HUTLEY:   Yes, your Honour.

MR WALKER:   Yes, your Honour.

GUMMOW ACJ:   Any other parties?

MR HUTLEY:   No, your Honour.

GUMMOW ACJ:   Right.

MR HUTLEY:   The Council, to date, has taken a submitting role in the current application, throughout.

GUMMOW ACJ:   Yes, all right.

MR HUTLEY:   I think, from discussions with my learned friend, if the Court were minded to expedite the application then grant special leave and hear the two appeals in sequence, it would take about a day plus.

GUMMOW ACJ:   A day plus.

MR HUTLEY:   Yes.  I think it has been set down for a day.  My instructing solicitors spoke to the Registrar and the Registrar said, of course, it is a matter for the Court but it was possible to fit in a day plus at that time as this then stood, but, of course ‑ ‑ ‑

GUMMOW ACJ:   Yes, just a minute.  Just tell me this at this stage, Mr Hutley, what is the explanation of this, on the face of it, long delay?

MR HUTLEY:   Your Honour, can I say the proceedings, in a sense, got a trifle out of kilter in one way.  Can I explain to your Honour the background.  The appeal before the Court is an appeal as to the construction of the easement.

HIS HONOUR:   Yes.

MR HUTLEY:   The appeal, which is the subject of this application, proceeded upon a construction of the easement which was the construction which was successful in the Court of Appeal but is the subject of contests in the High Court.  There was an oddity.  The original application in the current application was before Justice Talbot who found the relevant condition unreasonable and set it aside.

GUMMOW ACJ:   He only applied a special question, did he not?  Did he not carve out a question?

MR HUTLEY:   Yes.

GUMMOW ACJ:   So what is outstanding in the Land and Environment Court, pending the outcome, I suppose, here or in the Court of Appeal, is what?

MR HUTLEY:   I think that has been abandoned in the Land and Environment Court, the balance of the proceedings.  The proceedings, in a sense, are determined, as I understand it, by the outcome of what takes place on the special leave application and ultimate appeal, if leave is granted in this Court.

GUMMOW ACJ:   I see.

MR HUTLEY:   Effectively, your Honour can treat the Land and Environment Court proceedings as at an end, subject to this appeal.

GUMMOW ACJ:   Now, the delay?

MR HUTLEY:   I think there are some costs.  Your Honour, the delay – that is why I got to the background.  The easement, which was the subject of the construction in the Court of Appeal, which is now before the Court, and if I can call that the construction case, as opposed to the condition case ‑ ‑ ‑

GUMMOW ACJ:   Yes.

MR HUTLEY:   ‑ ‑ ‑ held that the benefit of the easement entitled the dominant tenement owner only to pass to and from its property, that being Skygarden.  The construction advanced by Westfield is that the easement should be construed to entitle the dominant tenement owner to permit vehicles to pass over its land to more remote properties, namely, the Imperial Arcade and Centrepoint.

The condition appeal proceeded on a construction which was the construction which was ultimately found by the Court of Appeal in the easement case, namely, it limited the benefit to the dominant tenement merely to pass to and from its land.  When the Court of Appeal delivered its judgment in the condition judgment it was known that the – I am sorry, Justice ‑ ‑ ‑

GUMMOW ACJ:   Justice Hodgson was in both, was he not?

MR HUTLEY:   Justice Hodgson and Justice Tobias.  Justice Beazley was in the easement case and Justice Basten was in the condition case.  That is the only difference between the court.  At the time of delivery of the Court of Appeal’s judgment in the condition case Justice Brereton, at first instance, had delivered judgment in the easement case and he had come to a conclusion that the easement should be construed as Westfield seeks to advance before this Court.

That created a position that the potential utility of this appeal might be affected by the outcome of the appeal from Justice Brereton in relation to the easement case in the Court of Appeal because if Westfield were able to use its easement in favour of Skygarden, in effect, for the benefit of its now consolidated property being Skygarden, Imperial Arcade and Centrepoint, on one view, the utility of the condition position might be affected.

GUMMOW ACJ:   Meaning?  By utility?

MR HUTLEY:   Because Westfield might take the view that we will only rely upon the easement which we have obtained originally and we do not need to concern ourselves with compliance with the condition because we have an easement which is being construed to allow us to get complete access to the property.

GUMMOW ACJ:   Yes.  What I was coming to, apart from the question of delay, is if Westfield is successful in this Court on the easement question, does that render commercially otiose this appeal?

MR HUTLEY:   No, because Westfield has two arguments, as we understand it, in this Court.  One, that on the true construction of the easement granted in 1988 that entitles them to gain – utilise the easement for the benefit, practically, of Centrepoint and Imperial Arcade, but on another construction they say because the easement uses the terms “for all purposes and all time” – for all purposes essentially, that entitles them to invite any person to pass over their land, so it could operate for even remoter properties beyond Westfield, beyond the Imperial Arcade and Centrepoint.

In other words, one has the possibility under the current – if the construction advanced by our learned friends in the notice of appeal in the

High Court - one has created, as it were, a road at the control of Westfield.  That seems to be one of the points that has to be dealt with in the High Court.  In other words, the two cases are so intimately connected that the delay in seeking leave to appeal until the Court of Appeal had determined the construction case made sense because it may be that the whole thing became otiose.  It has not as a matter of practice because of what the Court of Appeal has done and the attitude of Westfield.

The delay from December to when we sought special leave which was in, I think, March or April - anyway, whatever the date is, your Honour - as your Honour can see from the affidavit we do not have an explanation.

GUMMOW ACJ:   4 April.

MR HUTLEY:   We do not have an explanation for it.  I cannot put forward any explanation.  It is just delay.

GUMMOW ACJ:   All right.  Let me ask Mr Walker a question.  Do you agree with Mr Hutley’s analysis of the interconnection or lack of interconnection?

MR WALKER:   No, not at all.  I think we are opposite.  It does not matter what construction the Court of Appeal adopted in the condition proceeding, right or wrong, as to the conveyancing question.  They were construing a condition and a condition that did not explicitly require anything other than this connection with the existing right of way, what did it mean to extend it.  So that it was either a question of a supererogatory town‑planning step, namely, you have to extend it even though it is already in a fit state, or it was not in a fit state and it needed extending.  That is a planning matter construing the condition.  There never was an argument that this condition was ineffective because it was not necessary.

That defeats this notion that there is an integral relation between the outcome of the conveyancing case and the condition case.  On the other hand, the question your Honour asked my friend concerning the condition case becoming commercially otiose or moot, in a sense – I do not mean technically moot, but commercially otiose – if we were to succeed in our conveyancing appeal that is a live matter which does argue for sequencing rather than combining the cases.

GUMMOW ACJ:   Yes.  It may argue for – and I have no view of it at the moment, but it may argue for referring in the special leave application to the Full Court hearing the conveyancing appeal and the Full Court can make up its mind as and when it has looked at the ins and outs of the conveyancing appeal.

MR WALKER:   Your Honour, we would make only these two comments about that.  The first is, your Honour has seen the material concerning the position of our counsel which would constitute a prejudice were this to be listed with the other case, a prejudice which would be visited in order to accommodate the position of a party who very frankly concede that for over four months there is simply no explanation as to why they did not move.  That is the first thing.

The second thing is that there is, in our submission, a very substantial question to be determined as to extension of time in this case.  My learned friend’s client is not, as it were, a litigant any more eligible than mine to make ad misericordiam pleas.  There is no explanation for a five‑month delay.  There is, of course, this logical problem.  They appealed Justice Brereton’s decision, that is, they invited a reversal of the position in relation to the easement.  In our submission, there is absolutely no explanation as to why, if there is lockstep, why it was not consistently followed through thereafter.

We have a prejudice argument so there is a factual question – I do not know whether it is disputed – but there is a factual question concerning extension of time which, in our submission, does not at first sight present itself as suitable to be considered by the Full Court as considering the conveyancing appeal. That is why we would argue that first, if you are going to combine them in any of the possible ways of combination, it ought not to be the July date but we should not lose our July date for the conveyancing case and that should be an end of the matter.

Second, it, in any event, is superior to sequence them because of the logic to which I have referred, namely, it is better to find out what the position is in relation to the conveyancing case before the conditions case is fought.

GUMMOW ACJ:   Another possibility is simply to stand over this leave application until the actual disposition of the other appeal, so there is a whole range of possibilities.

MR WALKER:   Yes.  On the other hand, I should say from the point of view of my client, the uncertainty in relation to the conditions case remains uncertain, therefore, until the conveyancing case is determined.  The fact is this difficulty is brought about because of their inexplicable delay of five months.  In our submission, that should not prejudice our preparation of and hearing on 31 July of the conveyancing case and thereafter they should proceed in the ordinary way.  The circumstances your Honour has just referred to, no doubt, would be a circumstance considered by the special

leave court hearing the application for extension of time and the application, if available, for special leave.

GUMMOW ACJ:   Another possibility - if special leave were to be granted - would be to list it at some stage in the sittings later in the year in the expectation that judgment might be delivered at the same time in both appeals, eventually.

MR WALKER:   Yes.  In other words, they do not have to be heard literally together in order to be, as it were, considered together.

GUMMOW ACJ:   It would need the same Bench, I suspect.  Now, the special leave list in Sydney next Friday is overfull.  However, there is a special leave list in Brisbane on Thursday, 21 June.  I am presiding at one of those panels.  There is no video link to Brisbane so it requires personal attendance.  At the moment I would be minded to grant the expedition application but refer the special leave application into the panel I am presiding over in Brisbane on 21 June and then three of us can decide which of these many possibilities should be pursued.

MR WALKER:   May it please the Court.

GUMMOW ACJ:   Is there any objection to that course?

MR WALKER:   Your Honour, I simply do not know Mr McHugh’s position.  I know I will be there anyhow.

GUMMOW J:   Yes, that is right.  It will be listed in the morning of the 21st, if that will help you.

MR WALKER:   Thank you, your Honour.

MR HUTLEY:   If the Court pleases.

GUMMOW J:   Has the Council any objection to that course?

MR KONDILIOS:   No, if it pleases.

GUMMOW ACJ:   On the summons filed 31 May 2007, I make order 1 and I direct that the application for special leave be listed in Brisbane on Thursday, 21 June 2007 and costs of the summons will be costs of the special leave application.

Is there anything else, gentlemen?

MR WALKER:   No, your Honour.

MR HUTLEY:   No, your Honour.

GUMMOW ACJ:   All right.  I will now adjourn.

AT 10.00 THE MATTER WAS ADJOURNED