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  • Unreported Judgment

Lang Parade Pty Ltd v Peluso


[2005] QSC 133




No 10829 of 2004






First Respondents






Second Respondents


DATE 10/05/2005


HIS HONOUR: In this matter I delivered reasons dated Monday, 9 May 2005 in respect of an application under section 180 of the Property Law Act 1974 for the imposition of a statutory right of user by way of a licence permitting the applicant to use the respondents' properties' air space until 31 May 2005 to allow two existing electrical tower cranes to continue to be used for a development. Their use for that development had involved them trespassing over the respondents' properties.

When I was about to deliver the reasons for the judgment I proposed, I was informed by counsel for the applicant that on the Saturday 7 May 2005, the last hammerhead crane on the building site was removed. Another crane had been removed from the site in about mid-March 2005. Although further use of mobile cranes may be required up until the completion of the construction of the buildings being erected for the applicant, no encroachment on the respondent's property is foreshadowed and no licence to enter the air space of the respondent's property is required.

Consequently, it has been submitted that there is no occasion now for me to grant the statutory licence which I proposed to grant. Both counsel pointed to language in section 180 which suggests that the order, if it is to be made, should be made in respect of a future period rather than a past period. On my perusal of the Act, that submission seems to be correct.

When one looks, for example, at the words “may be declared to be exercisable” in section 180(2), and in section 180(3), the language “providing that an order of the kind referred to in subsection (1) shall not be made unless the Court is satisfied that it is consistent with the public interest that the dominant land should be used in the manner proposed”, they suggest that the order should be prospective.

As Mr Martin SC submitted for the respondents, the normal application of the section would be to seek a licence before a proposed trespass. If no order is made, as Mr Stewart SC submitted for the applicant, it will be open to the respondents to pursue other remedies they may have in respect of the trespass such as damages for trespass or perhaps some restitutionary remedy.

In the circumstances therefore, it seems to me that there is no point in my making the order that I proposed to make in the reasons for my decision.

In this matter, further proceedings have become unnecessary because of the dismantling of the cranes that were trespassing on the respondent's property. It is necessary, however, to deal with the costs of the proceeding pursuant to Rule 683.

The applicant, unusually for proceedings like this, seeks its costs. Section 180(6) of the Property Law Act 1974 provides that in any proceedings under this section, the Court shall not, except in special circumstances, make an order for costs against the servient owner. The applicant submits that there are several issues which individually and collectively constitute special circumstances within the meaning of the subsection. First they draw attention to the respondents' refusal to accept an offer made in a letter of 24 December 2004 from the applicant's solicitors to the respondents' solicitors. There were two letters of that date, one was an open offer to pay the respondents $30,000 and their costs to be assessed on the standard basis in return for consent to the statutory easement. There was also a without prejudice offer made pursuant to part 5 of chapter 9 of the Uniform Civil Procedure Rules offering to pay the respondents the sum of $30,000 and their costs to be assessed on the standard basis in return for consent to the licence sought. That offer remained open for acceptance until the close of business on 10 January 2005, as did the open offer of the same date.

There was also a later offer of 12 January 2005 making an offer of $55,000, inclusive of all costs and outlays in return for consent to the orders sought. That offer was made on the basis that it remain open for seven days from the date of the letter. As is apparent from the reasons I have delivered I assessed the amount of compensation payable under the Act as $20,000.

The next matter that the applicant relies upon is the fact that Mr Michael Peluso's conversation with Mr Tagell and the acquiescence of the respondents, or Mr Michael and Mr Frederick Peluso on their behalf, led the applicant to believe that the encroachment was consented to for a substantial period. On my findings, it was clear that Mr Frederick Peluso was told of and did not oppose the prospect of the cranes “over-sailing” the property. I was not of the view that there was enough evidence to allow me to conclude that Sheridan Peluso and Michael Peluso had consented to, or acquiesced in, or waived any trespass over their properties by the cranes. The affidavit evidence in the proceedings after they were instituted should, however, have been enough to alert them to that as an issue and I think that it is relevant to costs that Mr Frederick Peluso had consented to these cranes over-sailing the Peluso properties.

Mr Martin SC submits that he was not aware of the extent, or fully aware of the nature of the trespass that would occur but it seems to me that he was quite sufficiently made aware of what was going to happen in respect of the development next to his properties.

The applicants also point to the respondents' failure to address the issue of compensation openly after the conversation between Mr Tagell and Mr Michael Peluso on 19 January 2004. That was an unusual feature of this litigation in that the applicant made a number of monetary offers openly but was unable to elicit any open response from the respondents in circumstances where it seems clear to me that the respondents were approaching this as a commercial enterprise and were only interested in how much money they could get out of it. They did not, however, address that issue openly and required this application to be brought in circumstances where it would have been open to them to negotiate commercially in an open fashion.

Next, the applicants point to the fact that their open offers were not accepted at all as constituting a special circumstance warranting an order that the respondents pay the applicant's costs and also point to their without prejudice letters, to which I have already referred. They submit in essence that the respondents' approach was merely to rely on their proprietary rights without any further merits which justified the making of an order for costs against them.

The respondents had at one stage threatened to apply for an injunction but did not do so. They also have rights in respect of the trespass to their property that has occurred that they have not yet exercised. It is relevant, and Mr Martin made something of the fact that, because of the applicant's failure to address the issue of consent properly in a documented way at an early stage, this situation has arisen. But that seems to me to be affected to a significant extent by the conversation with Mr Frederick Peluso which occurred at an early stage and also by the failure by the respondents to advance their complaints against the applicants until about September last year when the buildings were well under way and when the system for erecting them had been set in place.

This seems to me to be not a case simply where the servient owners were relying upon their rights but it is a case where they had made a decision to try to exploit those rights commercially. They did not exploit those rights commercially in a fashion which could have prevented the need for this application to be brought as, initially at least one of the respondents consented to the trespass, they made no open response at all to the variety of offers made by the applicant to them and the amount Mr Frederick Peluso suggested as appropriate in his oral evidence, $160,000, was, to my mind, quite unreasonable.

It seems to me therefore, that when the Court is faced with a situation where one at least of the co-owners has consented to the proposed trespass, where all of the co-owners do not deal with the request for the imposition of this statutory right in a way which can avoid litigation of this sort and where it is clear that, in doing so, they hope to exploit their position commercially and unrealistically then it seems to me that the special circumstances spoken of in section 180(6) do arise and that it is open for me to make an order for costs against the servient owner.

The order sought is that the respondents pay the applicant's costs of the proceedings and I make that order.


Editorial Notes

  • Published Case Name:

    Lang Parade Pty Ltd v Michael Shane Peluso

  • Shortened Case Name:

    Lang Parade Pty Ltd v Peluso

  • MNC:

    [2005] QSC 133

  • Court:


  • Judge(s):

    Douglas J

  • Date:

    10 May 2005

Litigation History

No Litigation History

Appeal Status

No Status