- Unreported Judgment
SUPREME COURT OF QUEENSLAND
30 April 2012
30 March 2012
1. The defendants’ application is dismissed.
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the defendants make application for summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – where the defendants allege the plaintiffs’ evidence does not support their claims – whether the application should be granted
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PLEADING – STATEMENT OF CLAIM – where the defendants make application to strike out parts of the amended statement of claim pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the application should be granted
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – OTHER MATTERS – where the defendants seek judgment by default pursuant to r 280 of the Uniform Civil Procedure Rules 1999 (Qld) for alleged repeated failures by the plaintiffs to comply with court orders – whether judgment by default should be granted
Uniform Civil Procedure Rules 1999 (Qld)
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Coldham-Fussell v Commissioner of Taxation  QCA 45
Deputy Commissioner of Taxation v Salcedo  2 Qd R 232
Frikton v Plastiras  QSC 5
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd  QCA 119
Quinlan v Rothwell  1 Qd R 647
Robertson v Holling and Ors  QCA 303
Royalene Pty Ltd v Registrar of Titles  QSC 59
Spencer v The Commonwealth (2010) 241 CLR 118
M Bland for the plaintiffs
D O’Brien for the first and second defendants
QBM Lawyers for the plaintiffs
Brian Bartley & Associates for the first and second defendants
 The defendants make application for summary judgment, pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) or, in the alternative, to strike out paragraphs 8 and 9 of the amended statement of claim pursuant to rr 171(1) and (2), UCPR. In the further alternative, the defendants seek judgment by default pursuant to r 280, UCPR, for alleged repeated failures by the plaintiffs to comply with court orders.
 The plaintiffs oppose the making of any such orders. They also seek leave to rely on a further expert report by Cardno Lawson Treloar dated 12 March 2012 (“the Cardno report”).
 The plaintiffs’ claim arises out of agreements entered into between the plaintiffs and the defendants on 30 June 2000 in respect of land at Arundel on the Gold Coast. That land consisted of three separate parcels, areas A, B and C.
 On 30 June 2000, the plaintiffs entered into an agreement with the first defendant to purchase areas A and B. That contract settled on 30 June 2000. At the same time, a Deed was entered into between the plaintiffs and the defendants by which the first defendant agreed to construct a golf course on area B, on or before 30 June 2002, and the second defendant agreed to guarantee the first defendant’s performance of that obligation. The golf course was not constructed by the due date, or at all.
 Relevantly, for present purposes, the plaintiffs allege two alternate claims for loss and damage arising out of the alleged breaches of the agreements by the first and second defendants. Those pleas are in the following terms:
“8.The Plaintiffs have suffered loss and damage of $2,205,000.00 by reason of the first and second Defendants’ breaches.
(a)the highest and best use of area C was for development into residential lots and allotments;
(b)had the golf course been constructed on area B, not less than 63 residential lots and allotments to be created from the development and subdivision of area C would have direct frontage upon or views of the golf course;
(c)the value of a lot or allotment with frontage upon or views of a golf course was as at 30 June 2002 not less than $35,000 more than a similar lot or allotment having frontage upon or views of scrubland;
(d)as a result, the realisation of profit from any development of area B as at 30 June 2002 was diminished by $2,205,000.
9.In the alternative the Plaintiffs have suffered loss and damage in the sum of $1,570.00 by reason of the first and second defendant’s breaches of the deed:
(a)Market value that Area C as an en globo development site would have had as at 30 June 2002 had a golf course been constructed on area B - $12,920,000
(b)Less Actual Market value of Area C as an en globo development site as at 30 June, 2002 $11,350,000.
 In support of the alternate pleas of loss and damage, the plaintiffs served, in mid 2008, a report from valuers Taylor Byrne. The plaintiffs advised no further expert evidence would be relied upon to establish their claim. However, on 9 February 2012, the plaintiffs served a report from Cardno Lawson Treloar. That report did not refer to the same development plan as the Taylor Byrne report. As a consequence, the Cardno report was delivered on 19 March 2012.
 The plaintiffs require leave to rely on the Cardno report, as this Court has made several orders requiring service of any expert reports by specified dates. The most recent of those orders required service of any expert reports by 3 February 2012. The initial report from Cardno Lawson Treloar was served shortly after that date. I accept the Cardno report was necessary due to the incorrect reference to a development plan in that original report from Cardno Lawson Treloar. That error was unfortunate. However, it is insufficient to deny the plaintiffs the opportunity to rely upon the Cardno report. I am satisfied, in the exercise of my discretion, that the plaintiffs ought to be granted leave to do so.
 At the hearing of the application, the defendants objected to paragraph 5 of the affidavit of Lawrence John Hamilton filed 28 March 2012. The defendants submit the opinions contained therein were not within Mr Hamilton’s expertise. The plaintiffs contend they are within his field of expertise. Alternatively, they are matters of observation, not requiring expert opinion.
 I am not satisfied the opinions expressed in paragraph 5 are within Mr Hamilton’s field of expertise. Paragraph 5 ought to be excluded from consideration on that basis. Alternatively, if those opinions are not matters for expert evidence, paragraph 5 should also be excluded from consideration.
 The defendants’ objection to paragraph 5 of Mr Hamilton’s affidavit is upheld.
The Cardno report
 The Cardno report concluded the original development plan would receive Council approval subject to amendments being made to reflect key considerations. In order to understand the relevance of these considerations, it is necessary to set out the relevant extract:
“It is considered that the proposed Plan of Development would be approved by Gold Coast City Council, subject to the following key considerations:
2.The proposed Plan of Development does not currently include the Main Roads future road corridor road requirement. Development is also included on land with the flood affected area. In this respect, the proposed Plan of Development would need to reflect these requirements as discussed above within Sections 2.2 and 2.4 respectively.
Having regard to the above key points, the proposed Plan of Development would be required to be amended with respect to the road resumption and flooding requirements. Upon amending the proposed Plan of Development to reflect these requirements, we believe that the proposed Plan of Development would be approved by Gold Coast City Council in 2002.
Based on the above analysis, it is considered that the proposed Plan of Development would require either:
➢ a Changing of conditions of rezoning approvals issued under the Repealed Local Government (Planning & Environment) Act 1990; or
➢ a new development application, pursuant to the provisions of the IPA, being a Section 3.1.6 Preliminary Approval (MCU), to override the planning scheme for mixed use residential development and a Section 3.1.4 Development Permit (ROL) to subdivide the land in accordance with the proposed Plan of Development.
Given the proposed Plan of Development comply with the provisions of the relevant Sections of IPA and do not conflict with the strategic objectives of the relevant planning schemes, it is considered that the proposed Plan of Development would be approved within 2002. This would however be subject to the plans being amended to reflect the transport corridor resumption and flooding requirements.”
 The defendants submit the opinions expressed in the Cardno report are unequivocal. The original development plan would not have been approved by Council. Council may have approved an amended development plan, but this would have required land in excess of one hectare to be designated for future road (on a site which bisected the subject land), and a redesign to take into account flooding issues. The defendants submit the plaintiffs’ claims for loss and damage are based on a valuation of the land by Taylor Byrne on the basis the original development plan would be approved, not an amended development plan.
 The defendants submit that in those circumstances, even if the plaintiffs’ expert evidence is accepted in its entirety, the plaintiffs’ claim is bound to fail. Alternatively, the claims for damages set out in paragraphs 8 and 9 ought to be struck out as they are not supported by the expert evidence.
 Alternatively, the defendants contend the Cardno report was delivered in breach of court orders, made as recently as 31 January 2012. As the plaintiffs’ case could now only be resurrected by the delivery of yet further expert reports, the plaintiffs’ claim should be dismissed pursuant to r 280 UCPR.
 The plaintiffs contend the Cardno report, when read in its entirety, supports their claim as the development plan would have been approved by Council. That some amendments would have been required to that plan does not render their case one that is bound to fail. Development plans are regularly approved with amendments. Further, the amendments do not impact on the valuation provided by Taylor Byrne. That valuation was based on a certain number of lots having golf course frontage. Any amendments to the development plan would not result in a reduction in the number of lots with golf course frontages.
 The plaintiffs contend there is no basis for summary judgment, or for striking out their claim. They also contend satisfactory explanations have been provided for their failure to comply with court orders to date.
 A court may give summary judgment for a defendant in a proceeding if satisfied the plaintiff has no real prospects of succeeding on all or a part of the claim, and that there is no need for a trial of the claim or part of the claim. The power is similar to that providing for a plaintiff to seek summary judgment against a defendant.
 Rule 293 UCPR uses “clear and unambiguous language”, and is to be construed by applying its words, rather than tests under previous rules. The key expressions are “no real prospect” and “there is no need for a trial of the claim”. The word “real” distinguishes “fanciful prospects of success”. The power must be applied in the context of the UCPR’s overriding purpose of facilitating “the just and expeditious resolution of the matter in dispute”. Whilst the power to give summary judgment is to be determined having regard to the language in r 293, the power “is not to be exercised lightly”.
 In Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd, Muir JA (with whom Holmes JA agreed), said of r 292:
‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’
In this case, whilst the primary judge dealt with the matter carefully and skilfully, if I may respectfully say so, the range and complexity of the issues before him and the existence of factual disputes rendered the granting of summary judgment overly bold.”
 The similarity in the criterion for the granting of summary judgment for a defendant render these observations apposite to an application under r 293.
 A Court has power to strike out a pleading, or part thereof, if it discloses no reasonable cause of action or has a tendency to prejudice or delay the fair trial of the proceeding. This power includes striking out proceedings which are bound to fail. The discretion to strike out a pleading should only be exercised in clear cases. The Court also has a wide discretion to dismiss proceedings where there has been a failure to comply with court orders.
 The defendants’ application is brought on the basis the evidence sought to be relied upon by the plaintiffs in the Taylor Byrne report and the Cardno report does not support either claim for loss and damage. The defendants contend the plaintiffs’ claim is fatally flawed as the opinions as to value expressed in the Taylor Byrne report were based on a development plan, which did not have Council approval. Further, the Cardno report opines that plans would not have been approved without substantial amendments. Those amendments would change the areas available for development.
 Whilst there may ultimately be merit in the defendants’ contentions as to the effect of the opinions expressed in the Taylor Byrne report, and in the Cardno report, I am not satisfied a court must inevitably conclude the number of golf course frontage lots will be diminished as a consequence of any amendments. Much will depend on the Court’s assessment of the impact of any amendment to the development plan on realisation of the lots relied on by Taylor Byrne to support the valuation. It will be for the trial judge to form an assessment as to the proper effect of this evidence on the plaintiffs’ claimed loss and damage. Once that conclusion is reached, it does not follow the plaintiff’s claims must fail.
 I am not satisfied the plaintiffs have no real prospect of succeeding in their claim, or that there is no issue to be tried in the proceeding. I am also not satisfied there is no need for a trial of the matters in dispute. The application for summary judgment pursuant to r 293, UCPR is dismissed.
 Once it is accepted the plaintiffs’ case is not bound to fail, there is no basis, in the exercise of my discretion, to strike out paragraphs 8 and 9 of the statement of claim. The application to strike out those paragraphs is also dismissed.
 The repeated failures by the plaintiffs to comply with court orders in respect of delivery of expert evidence is unacceptable. It is contrary to their obligations pursuant to r 5, UCPR. However, I am not satisfied those breaches have been of such a nature as to justify orders denying the plaintiffs a trial of issues the subject of genuine dispute in these proceedings. The expert reports sought to be relied upon have now been delivered by the plaintiffs. The matter should proceed to trial forthwith.
 In the exercise of my discretion, I decline to dismiss the proceeding pursuant to r 280 of the UCPR.
 The defendants’ application is dismissed.
 I shall hear the parties as to costs and any other orders.
 Affidavit of Lawrence John Hamilton filed 28 March 2012, paragraph 7.
 UCPR, r293.
 UCPR, r292; see Coldham-Fussell v Commissioner of Taxation  QCA 45 at .
 Deputy Commissioner of Taxation v Salcedo  2 Qd R 232 at 236.
 Coldham-Fussell at .
 Salcedo at  per Williams JA, quoting, with approval, observations of Lord Woolf M.R. in Swain v Hillman  1 All E.R. 91 at 92.
 Coldham-Fussell .
 Coldham-Fussell at  adopting observations in Spencer v The Commonwealth (2010) 241 CLR 118 at  at 131; see also Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 at .
  QCA 119 at -.
 (2005) 79 ALJR 856 at 859 per Gleeson CJ, McHugh and Gummow JJ.
 (2000) 201 CLR 552 at 575-576.
 UCPR, r171.
 See, generally, Robertson v Holling and Ors  QCA 303 per Keane JA at -; Frikton v Plastiras  QSC 5 at -.
 Royalene Pty Ltd v Registrar of Titles  QSC 59 at .
 See, generally, Quinlan v Rothwell  1 Qd R 647.
- Published Case Name:
O'Brien v Hillcrown Pty Ltd and Anor
- Shortened Case Name:
O'Brien v Hillcrown Pty Ltd
 QSC 114
30 Apr 2012
No Litigation History