Queensland Judgments


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Ebbwvale Drainpipes Pty Ltd v McGrath


[2007] QSC 23






Trial Division


Application on the papers



12 February 2007




9 February 2007


Mackenzie J


I make an order in terms of the draft initialled by me and placed with the papers


McCullough Robertson Lawyers for the applicant

[1] MACKENZIE J:  This is an application on the papers based on s 181(7) of the Property Law Act 1974 (Qld) for a direction as to public advertisement of a Notice of Application to extinguish two easements over land situated in the Ipswich City Council Area and service of notice on the Ipswich City Council.  The easements were granted in 1927.  They are private easements, not public easements.  It is mentioned in the written submissions that Wenck [2004] QSC 015 is an example of a case where a notice authorised by s 181(7) was given. 


[2] It appears from the affidavit of the solicitor involved in the transaction that on 4 December 2006 a contract for sale of the land was entered into, subject to a condition that the easements be extinguished by the applicant vendor.  The completion date of the contract is 28 February 2007.  Some urgency has developed for reasons that are unexplained in the affidavit evidence.   However, it is apparent from the terms of the proposed notices that the registered owners of the dominant tenements are deceased and that the applicant has not been able to ascertain the identify of the beneficial owners.  There is no sworn evidence on the point but the submissions contain the information that attempts to have the requirement that the vendor extinguish the easements be waived have been unsuccessful. 


[3] There is no evidence before me about the nature and extent of inquiries that have been made to ascertain the beneficiaries.  The solicitors should therefore consider whether and to what extent, when the substantive application for extinguishment is heard, evidence of that kind may be of some significance notwithstanding the contents of the advertisement. 


[4] The result of the foregoing is that only seven days notice is proposed in the notice to be published in the Courier Mail.  The reason is that the necessary application for extinguishment needs to be made and registration of any order made as to be effected by 28 February 2007 if settlement is to occur. Barring circumstances like this, it is probably desirable that a longer period to respond be allowed. Whether the process can proceed to completion within the desired period depends on what emerges after the notice is given.  The application is an ex parte application.  The Public Trustee is named as a respondent.  The proposed order makes no provision for service on the Public Trustee except to the extent that, presumably, notice provided by the newspaper advertisement may trigger inquiries by the Public Trustee.  In my view, notice should be specifically given to the Public Trustee in a similar style to that to be given to the Ipswich City Council, with any necessary adaptations. 


[5] Because of the state of the Applications List on 9 February 2007 when the matter was listed and the fact that it needed some reflection and time to process the reasons, the reasons are dated 12 February 2007 and the order has been made on that date.  It can be inferred that in the circumstances, the Public Notice will appear in the Courier Mail on 14 February 2007, which will push forward by one day the dates for the various steps set out in the timetable in the outline of argument.  Consideration will also need to be given to what is the earliest date on which an application may be made if seven days notice is to be given.         


[6] As it is apparently intended to publish some details in the notice in bold type, in my view, the most important information to a casual observer scanning the Public Notices pages of the Courier Mail, the names of the registered proprietors, should also be in bold type.  Because of the circumstances outlined above and subject to what I have said otherwise with regard to this kind of application, I make an order in terms of the draft initialled by me and placed with the papers.


Editorial Notes

  • Published Case Name:

    Ebbwvale Drainpipes Pty Ltd v McGrath & Ors

  • Shortened Case Name:

    Ebbwvale Drainpipes Pty Ltd v McGrath

  • MNC:

    [2007] QSC 23

  • Court:


  • Judge(s):

    Mackenzie J

  • Date:

    12 Feb 2007

Litigation History

No Litigation History

Appeal Status

No Status