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Vicksburg Pty Ltd v Village Life Regional Queensland Pty Ltd

 

[2002] QSC 463

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MUIR J

No 10636 of 2002

VICKSBURG PTY LTD (ACN 096 132 535)

Applicant

and

 

VILLAGE LIFE REGIONAL QUEENSLAND PTY LTD (ACN 082 706 741)

Respondent

BRISBANE

DATE 04/12/2002

JUDGMENT

HIS HONOUR: I am going to find, albeit reluctantly, that there is a triable issue. I find little or no substance in the contention that it was an implied term of the contract that the easement contended for by the respondent be granted. One of the problems with that part of the respondent's case is that the evidence seems to be overwhelming that the plan, which formed part of the contract, was the plan for which the applicant contends and not the plan for which the respondent contends. But, more importantly, even if the respondent was right about the plan, one could not bridge the gap between that fact and the lack of a term in the contract adverting to the grant of an easement. All one would be left with would be a contract prepared with deliberation by a solicitor, considered by another solicitor on behalf of the other party to the contract which did not advert to the grant of an easement.

In those circumstances, it seems to me to be impossible to deduce an intention on the face of the document or even from the dealings between the parties that the contract encompass the grant of an easement. There is, however, other material including the preparation of what I will call the respondent's plan by Mr Gainey, and the discussions with centered around it, which might support a collateral contract for the grant of an easement or give rise to an estoppel if the respondent's version of events were to be accepted.

There are factors which point strongly against acceptance of the respondent's version and they include the fact that a subsequent plan drawn up by their professional advisors containing easements made no reference to the easement which the respondent claims exists. Also this matter has been litigated for some time in the District Court and no collateral agreement has yet surfaced in the pleadings.

Experience tells one that where a party advances a claim on a particular ground and pursues it for some time, that late formulations of quite a different claim are rather unlikely to succeed. Be that as it may, it seems to me that the respondent has raised a triable issue.

In my view, if the caveat is properly amended, the balance of convenience will tilt in favour of the respondent but only if the applicant has to protection of an undertaking as to damages, an undertaking to prosecute the claim in the District Court with due expedition, and an undertaking to deliver an amended pleading raising and properly particularising the collateral agreement point. Otherwise, the applicant has the difficulty of wishing to deal with its land and the possibility that the existence of the easements will fetter its freedom of contract. Of course, my choice of language is not necessarily the best. The possibility will remain, it is just that with the undertakings its loss will have prospects of being appropriately mitigated.

HIS HONOUR: I give leave to the respondent to amend the caveat in terms of Exhibit 3. I note the undertaking of the respondent by its counsel to pay any damages the applicant might suffer as a result of the continuation of the caveat in its amended form.

HIS HONOUR: I note the respondent's usual undertaking as to damages by its counsel, its undertaking to prosecute the District Court proceedings with due diligence, and its undertaking to amend appropriately the pleadings in the District Court within fourteen days of today's date in order to allege and fully particularise a separate or collateral agreement as to the existence of an easement as described in the course of the hearing of this application.

I order that the costs this application be reserved and that the application be adjourned to a date to be fixed.

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Editorial Notes

  • Published Case Name:

    Vicksburg Pty Ltd v Village Life Regional Queensland Pty Ltd

  • Shortened Case Name:

    Vicksburg Pty Ltd v Village Life Regional Queensland Pty Ltd

  • MNC:

    [2002] QSC 463

  • Court:

    QSC

  • Judge(s):

    Muir J

  • Date:

    04 Dec 2002

Litigation History

No Litigation History

Appeal Status

No Status