Wirkus v Wilson Lawyers - [2012] QCA 261

SUPREME COURT OF QUEENSLAND

CITATION:

Wirkus & Anor v Wilson Lawyers [2012] QCA 261

PARTIES:

MICHELLE WIRKUS
(first appellant)
RANDOLF WIRKUS
(second appellant)
v
WILSON LAWYERS
(respondent)

FILE NO/S:

Appeal No 4802 of 2012
SC No 7974 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2012

JUDGES:

Fraser JA, Philip McMurdo and McMeekin JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal be dismissed.

2. The appellants pay the respondent the costs of the appeal.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS APPROVALS PERMITS AND AGREEMENTS – CONDITIONS – GENERALLY – where an approval for subdivision was granted subject to conditions including that an easement be granted over lot 1 – where easement was granted but was never registered – where the appellants claim that respondent should have advised them to enforce approval conditions prior to settling the dispute – where the primary judge held that there was no obligation to comply with the easement conditions and summary judgment was therefore given for the respondent – where the appellants claim that the 1987 approval was a ‘continuing approval’ under a ‘former planning scheme’ under the Integrated Planning Act 1997 (Qld) and the approval conditions therefore became binding on the body corporate when that Act came into effect – whether the 1987 approval was a ‘continuing approval’ under s 6.1.24(1) of the Integrated Planning Act 1997 (Qld) – whether the approval was ‘in force’ immediately before s 6.1.23 of the Integrated Planning Act 1997 (Qld) came into effect

Acts Interpretation Act 1954 (Qld), s 32A
Building Units and Groups Titles Act 1980 (Qld), s 9, s 24
City of Brisbane Town Plan Modification Act 1976 (Qld)
Integrated Planning Act 1997 (Qld), s 6.1.1, s 4.3.3, s 4.3.22, s 6.1.23, s 6.1.24
Local Government (Planning and Environment) Act 1990 (Qld), s 5.1, s 8.10
Property Law Act 1974 (Qld), s 180

Conde v Gilfoyle [2010] QCA 109, cited
Suffolk County Council v Mason [1979] AC 705, cited
Thomas v Marshall [1953] AC 543; [1953] UKHL 2, cited
Wirkus & Anor v Wilson Lawyers [2012] QSC 150, cited

Bennion FAR Bennion on Statutory Interpretation 5^th ed LexisNexis, London, 2008

COUNSEL:

T W Quinn with T C Somers for the appellants
M D Hinson SC, with R P S Jackson, for the respondent

SOLICITORS:

Kathleen Dare & Associates for the appellants
Bartley Cohen Lawyers for the respondent

FRASER JA: I agree with the reasons for judgment of Philip McMurdo J and the orders proposed by his Honour.

PHILIP McMURDO J: In 2004, the appellant Mrs Wirkus purchased land at Goldieslie Road, Indooroopilly. She subdivided it into two parcels which she sold in late 2008. It is said to have been beneficially owned also by the other appellant, Mr Wirkus.

Next…

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: [2012] QCA 261
Decision Date: 25 September 2012

CaseChat Overview and Summary

The appeal in Wirkus v Wilson Lawyers involved the appellants, Wirkus, who sought to enforce certain conditions attached to an approval for subdivision granted in 1987. The respondent, Wilson Lawyers, was tasked with advising the appellants on enforcing these conditions, which included the granting of an easement over lot 1. The dispute centred on whether the respondent had an obligation to advise the appellants to enforce these conditions before settling the matter. The Queensland Land Court initially ruled that there was no such obligation and granted summary judgment in favour of the respondent.

The key legal issues revolved around the interpretation and application of the Integrated Planning Act 1997 (Qld). Specifically, the court had to determine whether the 1987 approval constituted a 'continuing approval' under section 6.1.24(1) of the Act and whether this approval was 'in force' immediately before the commencement of section 6.1.23 of the Act. The appellants argued that the approval was a 'continuing approval' under a 'former planning scheme' and that its conditions became binding on the body corporate when the new Act came into effect.

The court thoroughly examined the legislative framework and found that the 1987 approval did not meet the criteria for a 'continuing approval' under section 6.1.24(1) of the Act. It concluded that the approval was not in force immediately before section 6.1.23 came into effect and therefore the conditions did not bind the body corporate. Consequently, the court dismissed the appeal and ordered the appellants to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the respondent the costs of the appeal.

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] QCA 261
PARTIES:	MICHELLE WIRKUS (first appellant) RANDOLF WIRKUS (second appellant) v WILSON LAWYERS (respondent)
FILE NO/S:	Appeal No 4802 of 2012 SC No 7974 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 September 2012
DELIVERED AT:	Brisbane
HEARING DATE:	13 September 2012
JUDGES:	Fraser JA, Philip McMurdo and McMeekin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be dismissed. 2. The appellants pay the respondent the costs of the appeal.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS APPROVALS PERMITS AND AGREEMENTS – CONDITIONS – GENERALLY – where an approval for subdivision was granted subject to conditions including that an easement be granted over lot 1 – where easement was granted but was never registered – where the appellants claim that respondent should have advised them to enforce approval conditions prior to settling the dispute – where the primary judge held that there was no obligation to comply with the easement conditions and summary judgment was therefore given for the respondent – where the appellants claim that the 1987 approval was a ‘continuing approval’ under a ‘former planning scheme’ under the Integrated Planning Act 1997 (Qld) and the approval conditions therefore became binding on the body corporate when that Act came into effect – whether the 1987 approval was a ‘continuing approval’ under s 6.1.24(1) of the Integrated Planning Act 1997 (Qld) – whether the approval was ‘in force’ immediately before s 6.1.23 of the Integrated Planning Act 1997 (Qld) came into effect Acts Interpretation Act 1954 (Qld), s 32A Building Units and Groups Titles Act 1980 (Qld), s 9, s 24 City of Brisbane Town Plan Modification Act 1976 (Qld) Integrated Planning Act 1997 (Qld), s 6.1.1, s 4.3.3, s 4.3.22, s 6.1.23, s 6.1.24 Local Government (Planning and Environment) Act 1990 (Qld), s 5.1, s 8.10 Property Law Act 1974 (Qld), s 180 Conde v Gilfoyle [2010] QCA 109, cited Suffolk County Council v Mason [1979] AC 705, cited Thomas v Marshall [1953] AC 543; [1953] UKHL 2, cited Wirkus & Anor v Wilson Lawyers [2012] QSC 150, cited Bennion FAR Bennion on Statutory Interpretation 5^th ed LexisNexis, London, 2008
COUNSEL:	T W Quinn with T C Somers for the appellants M D Hinson SC, with R P S Jackson, for the respondent
SOLICITORS:	Kathleen Dare & Associates for the appellants Bartley Cohen Lawyers for the respondent