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Tasman Quest Pty Ltd v Evans

Tasman Quest Pty Ltd v Evans

Case [2003] TASSC 110 31 October 2003

Adverse Possession

Easements & Covenants

Crown Lands

Property Law

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[2003] TASSC 110

CITATION: Tasman Quest Pty Ltd v Evans [2003] TASSC 110

PARTIES: TASMAN QUEST PTY LTD (ACN 006 046 457)
v

EVANS, Kim (SECRETARY OF THE DEPARTMENT OF PRIMARY INDUSTRIES, WATER & ENVIRONMENT)

TASMAN QUEST PTY LTD (ACN 006 046 457)
v
NOLAN, Robin (IN HIS CAPACITY AS SHACK SITES COMMISSIONER)

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 4/2003

FCA 5/2003

DELIVERED ON:  31 October 2003
DELIVERED AT:  Hobart
HEARING DATES:  25 August 2003
JUDGMENT OF:  Crawford, Slicer and Blow JJ

CATCHWORDS:

Real Property – Crown lands – Tasmania – Shack sites – Determinations that shack sites should be sold to existing licensees – Matters required to be taken into account – Right of appeal by adjoining owner.

Crown Lands (Shack Sites) Act 1997 (Tas), ss6(1)(g), 11(1)(b).
Aust Dig Real Property [144]

REPRESENTATION:

Counsel:
           Appellant:  S P Estcourt QC and A C R Spence
           Respondents:  No Appearance
           Attorney-GeneralF C Neasey
Solicitors:
           Appellant:  Page Seager
           Respondents:  Director of Public Prosecutions
           Attorney-General  Solicitor-General

Judgment Number: [2003] TASSC 110
Number of Paragraphs: 24

Serial No 110/2003
File Nos FCA 4/2003
FCA 5/2003

TASMAN QUEST PTY LTD (ACN 006 046 457) v
KIM EVANS (SECRETARY OF THE DEPARTMENT
OF PRIMARY INDUSTRIES, WATER & ENVIRONMENT)
TASMAN QUEST PTY LTD (ACN 006 046 457) v
ROBIN NOLAN (IN HIS CAPACITY AS SHACK SITES COMMISSIONER)

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
SLICER J
BLOW J
31 October 2003

Orders of the Court

FCA 4/2003

Appeal dismissed.

FCA 5/2003

Appeal dismissed.

Serial No 110/2003
File Nos FCA 4/2003
FCA 5/2003

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
31 October 2000

I agree with the reasons expressed by Blow J for concluding that both appeals should be dismissed.
File Nos FCA 4/2003
FCA 5/2003

REASONS FOR JUDGMENT FULL COURT

SLICER J
31 October 2003

I have had the opportunity of reading in draft form the reasons for judgment of Blow J and agree with his reasoning. In my opinion, the appeals ought be dismissed.
File Nos FCA 4/2003
FCA 5/2003

REASONS FOR JUDGMENT FULL COURT

BLOW J
31 October 2003

These two appeals concern a large number of shacks erected on Crown land on the foreshore at Ansons Bay, and determinations and proceedings relating to those shacks pursuant to the

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 Tasman Quest Pty Ltd v Evans

Details

AGLC: Tasman Quest Pty Ltd v Evans [2003] TASSC 110
Case: [2003] TASSC 110
Decision Date: 31 October 2003

CaseChat Overview and Summary

Tasman Quest Pty Ltd was in dispute with Evans over the determination that shack sites should be sold to existing licensees in Tasmania. The Tasmanian Court of Appeal was tasked with deciding the legal issues surrounding the sale of shack sites on Crown land. The central issue before the court was whether the decision to sell shack sites to existing licensees could be made without considering certain matters, and if the adjoining property owner had a right to appeal such a decision. The court was also required to determine whether the existing legislative framework was sufficient in addressing the concerns of adjoining owners.

The court examined the relevant legislation and found that the determination of shack sites for sale must be made with consideration of specific factors. These factors include the interests of existing licensees and adjoining owners. The court held that the decision-making process was flawed as it failed to take into account the adjoining owner's right to appeal, which is a matter that must be considered when making such determinations. The court further held that adjoining owners do have a right to appeal decisions made in relation to the sale of shack sites on Crown land.

In conclusion, the court found in favour of Evans, holding that the determination that shack sites should be sold to existing licensees was made without proper consideration of the adjoining owner's right to appeal. The court also held that adjoining owners do have a right to appeal such decisions. The orders of the court were that the determination be quashed and remitted to the relevant authorities for reconsideration, taking into account the adjoining owner's right to appeal and any other relevant factors.

Orders