Wilson Four Pty Ltd v Sihota - [2014] QSC 257

SUPREME COURT OF QUEENSLAND

CITATION:

Wilson Four Pty Ltd v Sihota & Anor [2014] QSC 257

PARTIES:

WILSON FOUR PTY LTD ACN 144 846 417
(plaintiff)
v
TARSEM SINGH SIHOTA and HARBANS KAUR SIHOTA
(defendants)

FILE NO:

BS9705/13

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

16 October 2014

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2014

JUDGE:

Jackson J

ORDERS:

The order of the Court is that:

1. The parties are directed to make submissions as to the orders that should be made consequent upon these reasons within seven days.

2. The costs of the hearing on 11 September 2014 be costs in the application.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where the plaintiff sought orders pursuant to s 185 of the Property Law Act 1974 – where the parties agreed to consent orders which imposed obligations upon each party to facilitate the removal of the encroachment upon the plaintiff’s land – where the plaintiff now seeks to amend the claim on the basis that the agreement underlying the consent orders has been terminated for the defendants’ repudiation – whether the consent order should be set aside – whether a consent order may be set aside on the basis of breach or repudiation of the underlying agreement – whether this issue should be determined in fresh proceedings

Property Law Act 1974 (Qld), s 184, s 185
Uniform Civil Procedure Rules (Qld), r 377, r 668

Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299, considered
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, cited

Eastman v The Queen (2000) 203 CLR 1, cited
Grierson v The King (1938) 60 CLR 431, cited
Harvey v Phillips (1956) 95 CLR 235, considered
Huddersfield Banking Co Ltd v Henry Lister & Son Ltd (1895) 2 Ch 273, cited

McDermott v Black (1940) 63 CLR 161, cited
McDonald v Dennys Lascelles Limited (1933) 48 CLR 457, cited
McVey v St Vincent’s Hospital (Melbourne) Ltd [2005] VSCA 233, cited
Paino v Hofbauer (1988) 13 NSWLR 193, considered
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, cited
Rockett v The Proprietors – “The Sands” Building Units Plan No 82 [2002] 1 Qd R 307, considered
Sunbird Plaza Pty Ltd v Maloney (1987-1988) 166 CLR 245, cited

COUNSEL:

P Roney QC for the plaintiff
K Fleming QC and for the defendants

SOLICITORS:

Macfie Curlewis Spiro for the plaintiff
Wilson Lawyers for the defendants

Jackson J: The parties are in dispute about whether leave of the Court can or should be granted to the plaintiff to amend its claim under Uniform Civil Procedure Rules 1999 (“UCPR”), r 377. The dispute stems from an order of the court made on 29 April 2014. It ordered, inter alia:

“2.By consent, by way of relief pursuant to section 185 of the Property…

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: [2014] QSC 257
Decision Date: 16 October 2014

CaseChat Overview and Summary

The case of Wilson Four Pty Ltd v Sihota involves a dispute between the plaintiff, Wilson Four Pty Ltd, and the defendant, Sihota, regarding the enforcement of a consent order made under the Property Law Act 1974. The plaintiff sought orders pursuant to section 185 of the Property Law Act 1974 to address an encroachment on their land. The parties had previously agreed to consent orders that imposed obligations on both parties to facilitate the removal of the encroachment. The plaintiff subsequently sought to amend the claim, asserting that the agreement underlying the consent orders had been terminated for the defendants’ repudiation. The central issue before the court was whether the consent order should be set aside due to the alleged breach or repudiation of the underlying agreement.

The court was tasked with determining whether a consent order may be set aside on the basis of a breach or repudiation of the underlying agreement and whether this issue should be resolved in fresh proceedings. The court considered the legal principles and precedents regarding consent orders and their enforceability. It was noted that consent orders are generally binding and intended to be final, but there may be circumstances where a court can set them aside if there has been a fundamental change in the underlying agreement or if it is necessary to achieve justice between the parties.

In reaching its decision, the court observed that while consent orders are typically final, they may be set aside if there has been a significant change in the circumstances that undermines the basis of the consent. However, the court also highlighted that setting aside a consent order should not be taken lightly and is generally reserved for exceptional circumstances. The court concluded that the matter of whether the consent order should be set aside due to the alleged breach or repudiation of the underlying agreement required further examination and was better suited to fresh proceedings. The court directed the parties to make submissions within seven days regarding the appropriate orders that should follow from its reasons.

In conclusion, the court ordered that the parties must submit their views on the appropriate orders within seven days, following the reasons provided. Additionally, the court ruled that the costs of the hearing on 11 September 2014 be costs in the application. The court's decision underscored the importance of carefully considering the enforceability of consent orders and the circumstances under which they may be set aside.

Orders

Orders of the court

The order of the Court is that:

1. The parties are directed to make submissions as to the orders that should be made consequent upon these reasons within seven days.

2. The costs of the hearing on 11 September 2014 be costs in the application.

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:	Wilson Four Pty Ltd v Sihota & Anor [2014] QSC 257
PARTIES:	WILSON FOUR PTY LTD ACN 144 846 417 (plaintiff) v TARSEM SINGH SIHOTA and HARBANS KAUR SIHOTA (defendants)
FILE NO:	BS9705/13
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	16 October 2014
DELIVERED AT:	Brisbane
HEARING DATE:	11 September 2014
JUDGE:	Jackson J
ORDERS:	The order of the Court is that: 1. The parties are directed to make submissions as to the orders that should be made consequent upon these reasons within seven days. 2. The costs of the hearing on 11 September 2014 be costs in the application.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER THE UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – JUDGMENTS AND ORDERS – OTHER MATTERS – where the plaintiff sought orders pursuant to s 185 of the Property Law Act 1974 – where the parties agreed to consent orders which imposed obligations upon each party to facilitate the removal of the encroachment upon the plaintiff’s land – where the plaintiff now seeks to amend the claim on the basis that the agreement underlying the consent orders has been terminated for the defendants’ repudiation – whether the consent order should be set aside – whether a consent order may be set aside on the basis of breach or repudiation of the underlying agreement – whether this issue should be determined in fresh proceedings Property Law Act 1974 (Qld), s 184, s 185 Uniform Civil Procedure Rules (Qld), r 377, r 668 Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299, considered D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, cited Eastman v The Queen (2000) 203 CLR 1, cited Grierson v The King (1938) 60 CLR 431, cited Harvey v Phillips (1956) 95 CLR 235, considered Huddersfield Banking Co Ltd v Henry Lister & Son Ltd (1895) 2 Ch 273, cited McDermott v Black (1940) 63 CLR 161, cited McDonald v Dennys Lascelles Limited (1933) 48 CLR 457, cited McVey v St Vincent’s Hospital (Melbourne) Ltd [2005] VSCA 233, cited Paino v Hofbauer (1988) 13 NSWLR 193, considered Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, cited Rockett v The Proprietors – “The Sands” Building Units Plan No 82 [2002] 1 Qd R 307, considered Sunbird Plaza Pty Ltd v Maloney (1987-1988) 166 CLR 245, cited
COUNSEL:	P Roney QC for the plaintiff K Fleming QC and for the defendants
SOLICITORS:	Macfie Curlewis Spiro for the plaintiff Wilson Lawyers for the defendants