Wirkus v Wilson Lawyers - [2012] QSC 150

SUPREME COURT OF QUEENSLAND

CITATION:

Wirkus & Anor v Wilson Lawyers [2012] QSC 150

PARTIES:

MICHELLE WIRKUS
(first plaintiff)
RANDOLF WIRKUS
(second plaintiff)
v
WILSON LAWYERS
(defendant)

FILE NO:

BS7974 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2011

JUDGE:

Peter Lyons J

ORDER:

1. Application for judgment refused

CATCHWORDS:

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS APPROVALS PERMITS AND AGREEMENTS - CONDITIONS - GENERALLY - where approval for subdivision was granted - where a condition of the approval was that an easement was granted in favour of the lot owned by the plaintiff to allow access to Goldieslie Road - where such an easement was granted but not registered - where defendant was engaged by plaintiff to assist in achieving the provision of legal access to Goldieslie Road - where defendant did not advise plaintiff to seek to enforce approval conditions, rather advised plaintiff to rely on s 180 of the Property Law Act 1974 - where plaintiff sues for negligent advice - where defendant applies for judgment - whether the 1987 approval was ‘in force’ when s 6.1.23 of the Integrated Planning Act 1997 commenced such that conditions of the approval were binding upon subsequent owners and enforceable under that Act.

REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - GENERALLY - whether the title of the body corporate and individual lot owners was indefeasible such that the conditions of approval could not be enforced.

Acts Interpretation Act 1954 s 20
Building Units and Group Titles Act 1980 ss7, 9(7), 24
City of Brisbane Town Plan 1987 s 21
City of Brisbane Town Planning Act 1964 ss 4, 25
Integrated Planning Act 1997 ss 1.2.1, 1.2.3, 4.3.3, 4.3.22, 4.3.25, 6.1.23, 6.1.24
Land Title Act 1994 ss 184, 185, 201
Local Government (Planning and Environment) Act 1990 ss 4.1, 4.13, 4.14, 5.1, 5.4, 8.8, 8.10, schedule 1
Property Law Act 1974 s 180
Uniform Civil Procedure Rules 1999 rules 171, 293

Benmar Properties Pty Ltd v Makucha [1996] 1 Qd R 578 distinguished
City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424 distinguished
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 considered
In the matter of Giant Supermarket Properties Pty Ltd [1993] QPLR 229 considered

COUNSEL:

Plaintiff/Respondent: TC Somers

Defendant/Applicant: RPS Jackson

SOLICITORS:

Plaintiff/Respondent: Kathleen Dare & Associates Solicitors

Defendant/Applicant: Brian Bartley & Associates

[1] The plaintiffs in this action have claimed damages against the defendants for loss alleged to have occurred as a result of the legal services provided by the defendants in relation to obtaining access to land owned by the first plaintiff. In substance, they allege that the defendants failed to identify and pursue remedies in relation to a condition of an approval for development of land adjoining the first plaintiff’s land. The defendants challenge a proposed Statement of Claim, and seek an…

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 Wirkus v Wilson Lawyers

Details

AGLC: Wirkus v Wilson Lawyers [2012] QSC 150
Case: [2012] QSC 150
Decision Date: 4 April 2012

CaseChat Overview and Summary

Wirkus, the plaintiff, sued Wilson Lawyers, the defendant, for negligent advice. The plaintiff’s subdivision approval included a condition requiring an easement to be granted for access to Goldieslie Road. This easement was granted but not registered. The plaintiff engaged the defendant to help provide legal access to Goldieslie Road. Instead of advising the plaintiff to enforce the approval conditions, the defendant recommended relying on section 180 of the Property Law Act 1974. The plaintiff brought the suit against the defendant for the negligent advice.

The legal issues for the court to decide were whether the 1987 approval was ‘in force’ when section 6.1.23 of the Integrated Planning Act 1997 commenced and thus the conditions of the approval were binding on subsequent owners and enforceable under the Act. Another issue was whether the title of the body corporate and individual lot owners was indefeasible such that the conditions of approval could not be enforced.

The court held that the application for judgment was refused. The court held that the approval was still in force when section 6.1.23 of the Integrated Planning Act 1997 commenced. The court held that the approval was binding on subsequent owners and enforceable under the Act. The court also held that the title of the body corporate and individual lot owners was not indefeasible such that the conditions of approval could be enforced. The court held that the advice provided by the defendant was negligent.

Orders

Orders of the court

1. Application for judgment refused

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:	Wirkus & Anor v Wilson Lawyers [2012] QSC 150
PARTIES:	MICHELLE WIRKUS (first plaintiff) RANDOLF WIRKUS (second plaintiff) v WILSON LAWYERS (defendant)
FILE NO:	BS7974 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2011
JUDGE:	Peter Lyons J
ORDER:	1. Application for judgment refused
CATCHWORDS:	ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CONSENTS APPROVALS PERMITS AND AGREEMENTS - CONDITIONS - GENERALLY - where approval for subdivision was granted - where a condition of the approval was that an easement was granted in favour of the lot owned by the plaintiff to allow access to Goldieslie Road - where such an easement was granted but not registered - where defendant was engaged by plaintiff to assist in achieving the provision of legal access to Goldieslie Road - where defendant did not advise plaintiff to seek to enforce approval conditions, rather advised plaintiff to rely on s 180 of the Property Law Act 1974 - where plaintiff sues for negligent advice - where defendant applies for judgment - whether the 1987 approval was ‘in force’ when s 6.1.23 of the Integrated Planning Act 1997 commenced such that conditions of the approval were binding upon subsequent owners and enforceable under that Act. REAL PROPERTY - TORRENS TITLE - INDEFEASIBILITY OF TITLE - GENERALLY - whether the title of the body corporate and individual lot owners was indefeasible such that the conditions of approval could not be enforced. Acts Interpretation Act 1954 s 20 Building Units and Group Titles Act 1980 ss7, 9(7), 24 City of Brisbane Town Plan 1987 s 21 City of Brisbane Town Planning Act 1964 ss 4, 25 Integrated Planning Act 1997 ss 1.2.1, 1.2.3, 4.3.3, 4.3.22, 4.3.25, 6.1.23, 6.1.24 Land Title Act 1994 ss 184, 185, 201 Local Government (Planning and Environment) Act 1990 ss 4.1, 4.13, 4.14, 5.1, 5.4, 8.8, 8.10, schedule 1 Property Law Act 1974 s 180 Uniform Civil Procedure Rules 1999 rules 171, 293 Benmar Properties Pty Ltd v Makucha [1996] 1 Qd R 578 distinguished City of Canada Bay Council v F & D Bonaccorso Pty Ltd (2007) 71 NSWLR 424 distinguished Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472 considered In the matter of Giant Supermarket Properties Pty Ltd [1993] QPLR 229 considered
COUNSEL:	Plaintiff/Respondent: TC Somers Defendant/Applicant: RPS Jackson
SOLICITORS:	Plaintiff/Respondent: Kathleen Dare & Associates Solicitors Defendant/Applicant: Brian Bartley & Associates