Yolla Holdings Pty Ltd v Aion Corporation Pty Ltd
[2014] QCA 137
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- Notable Unreported Decision
- Appeal Determined (QCA)
- Yolla Holdings Pty Ltd v Aion Corporation Pty Ltd[2014] QCA 137
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Yolla Holdings Pty Ltd v Aion Corporation Pty Ltd[2014] QCA 137
Yolla Holdings Pty Ltd v Aion Corporation Pty Ltd[2014] QCA 137
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 6834 of 2012 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 6 June 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 February 2014 |
JUDGES: | Chief Justice and Fraser and Gotterson JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where an approved scheme under the Integrated Resort Development Act 1987 identified a strip of land, including the lot now owned by the appellant, as primary thoroughfare – where that lot was not transferred to the primary thoroughfare body corporate upon the scheme’s approval and was not sub-divided by the initial plan of subdivision, in contravention of the Act – where the local government and registrar of titles approved that plan – where no subsequent plan designated the lot as primary thoroughfare – where the appellant subsequently purchased the lot as a third party for commercial value – where the primary judge declared the lot to be “primary thoroughfare” and the appellant its “registered proprietor” within the meaning of s 33 of the Act – whether the primary judge erred in that interpretation – whether the lot was ever “shown on the plan as primary thoroughfare” within the meaning of s 33 of the Act Integrated Resort Development Act 1987 (Qld), s 30, s 31, s 32, s 33 Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47, cited R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12, cited |
COUNSEL: | R Traves QC for the appellant M Hinson QC, with G Coveney, for the first respondent No appearance for the second respondent |
SOLICITORS: | Baxters Solicitors for the appellant H W Litigation for the first respondent No appearance for the second respondent |
[1] CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree with the orders proposed by his Honour, and with his reasons.
[2] FRASER JA: Introduction On 13 February 1992 the Governor-in-Council approved a scheme under the Integrated Resort Development Act 1987 (“the Act”) for “Hope Island Resort”. The Order in Council in the Queensland Government Gazette for 15 February 1992 notified that the approved scheme consisted of provisions contained in the schedule to the Order in Council and the plan referred to in that schedule (“the scheme plan”). Consistently with the Act, the scheme provisions divided the land within the scheme (“the Site”) into precincts, including “Precinct 1 – Primary Thoroughfare Precinct” and “Precinct 2 – Residential Precinct”. The main purpose of primary thoroughfare was to provide vehicular, boat and pedestrian access to and within the Site. The intended development in that precinct included sealed roadways, paths and waterways.
[3] The scheme plan identified as residential precinct an area of land on the eastern side of the Site. It identified as primary thoroughfare a strip of land which encircles that residential precinct. It may be inferred from the scheme plan that this primary thoroughfare was intended to be developed as a canal which, via other canals, would lead to the western boundary of the Site and into the Coomera River. That development has since occurred, with the residential precinct encircled by the canal now being known as “Fairway Island”.
[4] The appellant (“Yolla”) is the registered owner of Lot 989 on SP 197707, which comprehends most of the canal land encircling Fairway Island. Fairway Island was sub-divided in a group titles plan (GTP 107328), which created numerous lots. The first respondent (“Aion”) is the registered owner of eight of those lots. The second respondent (“the HIPT Body Corporate”) was constituted under the Act as the body corporate to control, manage, and administer the primary thoroughfare in the Hope Island Resort. (The HIPT Body Corporate indicated that it would abide the substantive orders of the Court and it was not represented at the hearing of the appeal).
[5] Section 33 of the Act (which is materially identical to a provision in force when the scheme was approved, s 31) relevantly provides:
“(1)Immediately upon the registration of a plan or plans of subdivision creating a lot or lots comprising the primary thoroughfare, the registered proprietor of any lot shown on the plan as primary thoroughfare shall lodge with the registrar of titles all documents necessary to transfer free of mortgage that lot or those lots to the primary thoroughfare body corporate.
(2)The primary thoroughfare body corporate shall not be required to make any payment or provide any consideration for such transfer.”
[6] The genesis of Aion’s proceeding in the Trial Division against Yolla and the HIPT Body Corporate lay in the circumstance that, although s 33 required lots comprising primary thoroughfare to be transferred to the HIPT Body Corporate, most of the canal land encircling Fairway Island was instead transferred (after an intermediate transfer or transfers) to Mirvac Queensland Pty Ltd (“Mirvac”). Mirvac subsequently transferred so much of that canal land as was within Lot 989 on SP 197707 to Yolla. The dispute came to a head in July 2012 in an exchange of solicitors’ letters. Aion asserted, and Yolla denied, that the Act obliged Yolla to transfer Lot 989 to the HIPT Body Corporate, that Yolla held its interest in that land as trustee for the HIPT Body Corporate, and that Yolla was not entitled to grant licences for moorings in the canal.
[7] Aion filed an originating application claiming orders, including:
1. A declaration that Lot 989 is primary thoroughfare “within the meaning of the Integrated Resort Development Act 1987 (Qld)”.
2. A declaration that upon the proper construction of s 33 of that Act, the HIPT Body Corporate “is the beneficial owner” of that land and Yolla holds its interest in that land on trust for the HIPT Body Corporate.
3. An order requiring Yolla to transfer its interest in that land to the HIPT Body Corporate at no cost to the HIPT Body Corporate.
[8] The primary judge refused to make the order in 3 on the ground that, because Aion (unlike the HIPT Body Corporate, which had not sued) did not claim to be a beneficiary or a person standing in the shoes of a beneficiary of the alleged trust, Aion had no entitlement to bring any proceeding to enforce that alleged trust. The primary judge refused to make the declaration in 2 on the ground that Aion did not have a real interest to raise that question in circumstances in which, although Aion had a genuine commercial interest in applying for the declaration of trust, neither the beneficiary of the alleged trust (HIPT Body Corporate) nor the alleged trustee (Yolla) had made any claim against the other and they would not be bound by the declaration as between themselves.
[9] The primary judge made a declaration that “within the meaning of section 33 of the Integrated Resort Development Act 1987 (Qld), Lot 989 on survey plan 197707 is primary thoroughfare and [Yolla] is the registered proprietor of the lot”. The primary judge refused to make the broader declaration sought by Aion on the ground that the dispute between Aion and Yolla did not extend to the meaning of “primary thoroughfare” in all sections of the Act but was directed to the meaning of that expression in s 33.
[10] Yolla has appealed against the declaration made by the primary judge, and against a costs order subsequently made in favour of Aion.
The issue in the appeal
[11] The underlying controversy appears to be whether s 33 imposes an obligation upon Yolla to transfer Lot 989 on SP 197707 to the HIPT Body Corporate. Resolution of that controversy presumably would involve consideration of the indefeasibility of registered title conferred by s 184 of the Land Title Act 1994 and any potentially applicable exception to indefeasibility in s 185. If no exception were applicable, a question might arise whether the Integrated Resort Development Act 1987 impliedly repealed s 184. If s 184(1) of the Land Title Act 1994 applies and produces the result that Yolla holds its title subject only to registered interests affecting the lot but “free from all other interests”, including any claimed interest of the HIPT Body Corporate or the owners of lots in the scheme, that would seem to be a powerful reason for exercising the discretion not to make any declaration. Furthermore, the effect of the declaration made by the primary judge is arguably uncertain in these circumstances and where, although the HIPT Body Corporate is charged under the Act with the maintenance of primary thoroughfare, the land declared to be primary thoroughfare is not owned by or in the possession of that body corporate.
[12] However, those matters were not litigated. The appeal concerns only the proper construction of s 33 of the Act.
Factual background and statutory provisions
[13] When the scheme for the Hope Island Resort was approved under the Act in February 1992, s 4(1) set out the minimum requirements for an approved scheme. They included a “primary thoroughfare” and a “secondary thoroughfare” within the Site, the division of the Site into named precincts, and the specification of the intended development and permitted uses of the land within each precinct. It was not necessary to provide for the immediate subdivision of the residential precincts, but it was necessary to specify the maximum number of lots into which each residential precinct might be subdivided. Of particular importance in this case is the requirement for primary thoroughfare. Section 4(2) provided that the primary thoroughfare might consist of more than one thoroughfare. The scheme provided for a number of different thoroughfares comprising the primary thoroughfare, as well as a number of different thoroughfares comprising the secondary thoroughfare.
[14] The Act included provisions regulating the procedure for approval of schemes, including a provision requiring specified information and material to be included in the application for approval of the scheme: s 5(2). The specified information included the written consent of each owner, other than the applicant, of land within the Site: the Schedule, Pt A, item 3. The scheme plan accompanying the application was required, amongst other things, to identify “the location and area of each of the proposed precincts (including the primary thoroughfare precinct) and their component parts”: the Schedule, Pt A, item 18(b).
[15] Section 10(1) of the Act provided that upon approval of a scheme the Minister should forward a copy of the approved scheme to the Registrar of Titles, the local authority, and the chief executive of the Department. Section 10(2) required the local authority and the chief executive to make an appropriate notation of the approved scheme on the relevant town planning scheme maps. In this respect, the Act provided that development and the use of the land within the Site must comply with the provisions of the approved scheme and that an approved scheme superseded any town planning scheme in force in respect of the Site: s 19. Upon approval of the scheme, the provisions of the Act (with some exceptions which have no bearing in this matter) applied in respect of the scheme: s 20.
[16] Part IV of the Act dealt with the subdivision of the Site. Division 1 concerned “Initial Subdivision of and Dealing with Land”. Division 2 concerned “Subsequent Subdivision of and Dealing with Land in Residential Precincts”. Division 3 concerned “Dealing with Land Outside Residential Precincts”. These divisions contemplated an initial subdivision of all of the land within the Site into primary thoroughfare and lots which together comprised the balance of the land, followed by subdivisions of the residential precincts and of land outside residential precincts (for which primary thoroughfare was deemed to be a dedicated road). Registration of the initial plan or plans of subdivision results in the proprietors of land within the Site (excluding land in residential precincts and primary thoroughfare) and the principal body corporate (or, until incorporation of the principal body corporate, the proprietors of land within the residential precincts) being created as the scheme’s primary thoroughfare body corporate: s 102 of the current Act. That statutory scheme has been retained in the Act, despite various amendments made over the years.
[17] The most relevant provisions of the current Act, ss 30 – 33, are now found in subdivision A (“Creation of initial lots and primary thoroughfare”) in Division 1 “Initial subdivision of and dealing with land”) in Pt 5 (“Subdivision of Site”). These provisions reflect ss 28 – 31 in the Act as enacted, with minor amendments having no bearing upon the issues in the appeal. The critical provisions in s 33 are set out in [5] of these reasons.
[18] Sections 30 – 32 supply important context for the construction of s 33. Section 30(1) relevantly provides that after the scheme is approved, “the proprietor of land within the site shall lodge with the local government a plan or plans subdividing land within the site into—
(a)a lot or lots which comprises or together comprise the primary thoroughfare as provided for in the approved scheme; and
(b)lots which together comprise the balance of the land within the site.”
[19] Section 31(2) prohibits a local government from approving a plan of subdivision of land within the site unless—
“(a)the plan includes the subdivision of the site into a lot or lots comprising the primary thoroughfare; or
(b)a plan of subdivision subdividing the site into a lot or lots comprising the primary thoroughfare has been approved by the local government.”
[20] Section 32(1)(b) provides that the registrar of titles “shall not register a plan of subdivision referred to in section 30 unless… the plan and the schedule (if any) have been endorsed with the approval of the local government.” Section 32(2) prohibits the registrar of titles from registering a plan of subdivision unless—
“(a)the plan includes the subdivision of the site into a lot or lots comprising the primary thoroughfare; or
(b)a plan or plans of subdivision subdividing the site into a lot or lots comprising the primary thoroughfare has or have been registered by the registrar of titles.”
[21] The term “primary thoroughfare” is defined as meaning “the lot or lots that comprises or together comprise the primary thoroughfare as shown at the material time on the initial plan or plans of subdivision…”. The expression “initial plan” in that definition is itself defined as meaning “a plan of subdivision for the time being registered by the registrar of titles in accordance with section 32.”[1]
[22] The Site comprised three parcels of land, including Lot 999 on RP 842758. The land which became known as Fairway Island and the canal land[2] now owned by Aion were within Lot 999. There were various amendments to the approved scheme after its approval, but there appears to have been no change in relation to the land which became Fairway Island and the canal land.
[23] According to an affidavit by Yolla’s solicitor, Lot 999 on RP 228602 was first subdivided by RP 842758, lodged on 21 February 1992, which created Lot 999 on RP 842758. Neither the initial plan of subdivision nor any subsequent plan of subdivision designated the canal land as primary thoroughfare. Until 7 July 2009, the canal land was not separately identified at all on any plan of subdivision. From 21 February 1992 there were about 10 plans of subdivision, each of which included the land which became the canal land as an undifferentiated part of the balance land. (Other parts of the land were subdivided and parts of that subdivided land were designated as primary thoroughfare.) Land apparently corresponding to the land shown on the scheme plan as the canal was first separately identified as Lot 989 on SP 197707. That plan is endorsed as having been approved by the Council of the City of Gold Coast “in accordance with the Integrated Planning Act 1997” on 2 July 2009. Yolla’s solicitor deposed that this plan had been lodged on 7 July 2009. It may be assumed that it was registered shortly thereafter. Lot 989 on SP 197707 is not designated on that plan as primary thoroughfare. Other lots on that plan are designated as primary thoroughfare. The registered owner of the land subdivided by that plan was Mirvac. In July 2009 Mirvac sold Lot 989 to Yolla for $770,000 and Yolla became registered as owner.
[24] Consistently with the arguments presented in the Trial Division, Aion and Yolla argued the appeal on the footing that the original proprietor of the relevant scheme land contravened the provision now found in s 30(1) of the Act by lodging with the Gold Coast City Council a plan of subdivision which included the canal land within the “balance of the land within the [S]ite” rather than within a lot or lots comprising primary thoroughfare, the Gold Coast City Council contravened the provision now found in s 31(2) by approving a plan of subdivision which did not include a lot or lots comprising the whole of the primary thoroughfare and the registrar of titles contravened the provision now found in s 32(2) by registering that plan of subdivision. In the result, whilst some primary thoroughfare land within the Site was transferred to the HIPT Body Corporate, that land did not include Lot 989 on SP 197707.
[25] That state of affairs may have significant consequences for owners of land in the site and others. The primary thoroughfare body corporate is responsible for the maintenance of roads and other improvements on the primary thoroughfare: s 91. Subject to any primary thoroughfare bylaw, every person lawfully occupying any land within the Site has a right of way over the primary thoroughfare, and primary thoroughfare bylaws which would have the effect of unreasonably restricting access to or from any land within the Site have no force or effect unless the occupier of that land consents in writing to the restriction: s 100. Amongst other matters, the primary thoroughfare body corporate is obliged to control, manage and administer the primary thoroughfare for the benefit of its members, to properly maintain and keep in a state of good and serviceable repair the primary thoroughfare, including any improvements on it, and to effect any insurance including in respect of damage to property, death or bodily injury occurring upon the primary thoroughfare or the consequences resulting therefrom: ss 116, 120.
The primary judge’s reasons
[26] Yolla advanced three main contentions in the Trial Division:
(1)It was not the “registered proprietor” in terms of s 33 because Mirvac was the registered proprietor when Lot 989 was created.
(2)Lot 989 was not shown on SP 197707 “as primary thoroughfare”.
(3)No plan of subdivision created Lot 989 “comprising the primary thoroughfare” because Lot 989 was not created as a Lot in the “initial plan of subdivision”.
[27] The primary judge rejected those contentions.
[28] In relation to the first contention, the primary judge held that, upon a transfer by the original registered proprietor to a third party of lots (in breach of the original registered proprietor’s obligation to lodge with the Registrar of Titles the documents necessary to transfer the lots free of mortgage to the primary thoroughfare body corporate), s 33 ceased to apply to the original registered proprietor and instead applied to the subsequent registered proprietor.[3] The primary judge considered that this construction best achieved the “direct or primary purpose of s 33…to ensure that the land designated by the approved scheme to be primary thoroughfare, which is created as a separate lot under the Land Title Act comprising primary thoroughfare as required by the Act, is transferred to the relevant PT body corporate” and the “indirect or secondary purpose of s 33… to ensure that the rights and obligations provided for by the Act in respect of the PT body corporate, and those who deal with it, are engaged”. The primary judge also considered that upon the transfer of the primary thoroughfare lot to a third party being registered, there was no obvious reason why s 33 should be construed as continuing to apply to the former registered proprietor, who had no continuing right to transfer the lot as registered owner, and there was also no reason to construe the obligation to lodge the documents under s 33 as being brought to an end.
[29] In relation to Yolla’s second contention, that Lot 989 was not “shown on the plan [SP 197707] as primary thoroughfare”, the primary judge held that s 30(1)(a) did not require the plan lodged for subdivision to state which land was primary thoroughfare and that, in the context of ss 3(1)(a), 7(2), 27(1), and 30 – 32, the expression in s 33(1) “any lot shown on the plan as primary thoroughfare” did not require an express statement on the plan that the lot was primary thoroughfare but instead referred to the “lot or lots which comprises or together comprise the primary thoroughfare as provided for in the approved scheme” as required by s 30(1)(a). The primary judge considered that this “contextual meaning” fell within the ordinary meanings of the past participle of the verb “to show”, that a separate area might be shown by lines drawn on a plan without the area being named, and that no purpose of the Act was served by construing s 33(1) as being engaged when the approved and registered plan stated which lot or lots comprised primary thoroughfare but as being not engaged where that was not stated. On the primary judge’s construction, it was sufficient that, as was the case here, comparison of the approved and registered plan of subdivision with the approved scheme plan of development revealed that the relevant lot or lots conformed to the designation of the land which, under the approved scheme, was to become primary thoroughfare.
[30] In relation to Yolla’s third contention, that s 33 was not engaged because the subdivision of Lot 989 was not made under the initial plan, the primary judge accepted that the subdivision of Lot 989 was not made by an initial plan of subdivision which complied with s 32 for the approved scheme but considered that the subdivision of Lot 989 by the registration of SP 197707 did create a lot which was aptly described as “comprising” primary thoroughfare and “as provided for in the approved scheme”. The remaining question was whether Lot 989 was a lot “comprising the primary thoroughfare” within the meaning of s 33(1), having regard to the definition of “primary thoroughfare” and “initial plan of subdivision” within the definition of “primary thoroughfare”. The primary judge commenced his examination of that question by setting out s 33(1) combined with the definitions (in italics) of “primary thoroughfare” and “initial plan of subdivision”:
“Immediately upon the registration of a plan or plans of subdivision creating a lot or lots comprising the [the] lot or lots that comprises or together comprise the primary thoroughfare as shown at the material time on the plan or plans of subdivision for the time being registered by the registrar of titles in accordance with section 32, the registered proprietor of any lot shown on the plan as the lot or lots that comprises or together comprise the primary thoroughfare as shown at the material time on the plan or plans of subdivision for the time being registered by the registrar of titles in accordance with section 32 shall lodge with the registrar of titles all documents necessary to transfer free of mortgage that lot or those lots to the primary thoroughfare body corporate”.
[31] The primary judge considered that the substantial elements of the section as extended by reference to the definitions were satisfied: there was “registration of a plan or plans of subdivision…” because SP 197707 was registered; the registration of that plan created Lot 989 “that comprises…the primary thoroughfare as shown…on the plan…of subdivision” because it “comprises primary thoroughfare… as provided for in the approved scheme” within the meaning of s 30(1)(a); and SP 197707 was “registered… in accordance with section 32” in that “s 32 was not contravened by registration of survey plan 197707”.[4]
[32] The primary judge also referred to the provision in s 32A of the Acts Interpretation Act 1954 (Qld) that “[d]efinitions in or applicable to an Act [provide meaning] except so far as the context or subject matter otherwise indicates or requires”, and held that the context and subject matter of s 33 required that “primary thoroughfare” within the meaning of s 33 was not confined to primary thoroughfare shown on the first initial plan of subdivision but rather it extended to any subsequent subdivision conforming to the requirements of subdividing a lot or lot comprising primary thoroughfare.
[33] The primary judge acknowledged that the conclusion that Lot 989 was primary thoroughfare within the meaning of s 33 interfered with Yolla’s private property rights as registered owner of Lot 989, because on that construction Yolla was obliged to transfer Lot 989 to HIPT Body Corporate for no consideration under s 33(2) of the Act. His Honour rejected “the constructional choice that would treat the obligation to transfer under s 33 as not arising if a relevant area of “primary thoroughfare” is created other than by the first initial plan of subdivision”.[5] In so concluding, the primary judge referred to what his Honour perceived to be disadvantageous consequences of Yolla’s construction:
(a) Section 33 would never be engaged in respect of the land within Lot 989 because of its omission from the initial plan of subdivision in contravention of the requirement that all primary thoroughfare be subdivided by that plan; and
(b) Even a voluntary transfer of Lot 989 to the HIPT Body Corporate would not engage rights or obligations under other sections, including the right of way of an occupier of land within the Site under s 100, the powers, authorities, duties and functions of the HIPT Body Corporate including the obligations to do all things necessary for the control, management and administration of the primary thoroughfare under s 103(5), the HIPT Body Corporate’s right to the deemed contractual relationship under s 102(8), the HIPT Body Corporate’s power of entry under s 111, the HIPT Body Corporate’s power to develop or construct facilities and obligations to maintain the facilities under s 115, the HIPT Body Corporate’s duties under s 116, and the HIPT Body Corporate’s obligations to effect insurance in accordance with s 120.
Consideration
[34] The liberal meaning attributed by the primary judge to the word “shown” does not resolve the issue of statutory construction presented for decision in this appeal. That word is only one element of a composite expression which must be construed as a whole. Section 33(1) refers to a lot “shown on the plan as primary thoroughfare” and the definition of “primary thoroughfare” similarly refers to “primary thoroughfare as shown…on the initial plan…”. Whatever construction is given to the word “shown”, the obligation to transfer a lot which is created by s 33(1) does not arise unless the lot is shown “on the plan as primary thoroughfare”. The requirements of that expression are not met without at least some indication on the registered plan that the lot is primary thoroughfare.
[35] Upon the primary judge’s construction, it is instead sufficient that a comparison of the registered plan with the scheme plan reveals that the land comprised in the registered plan was designated in the scheme plan as primary thoroughfare, but that involves a judgment which the Act does not commit to a registered proprietor or to a court called upon to decide whether the obligation in s 33(1) has arisen. Section 30(1)(a) obliges the proprietor of the relevant scheme land to lodge with the local government a plan subdividing land within the site into lots which include a lot or lots which comprise the “primary thoroughfare” (the “lot…that comprises…the primary thoroughfare as shown…on the initial plan…of subdivision”) “as provided for in the approved scheme”. Consistently with the express terms of s 33(1), that should be construed as requiring the proprietor of the scheme land to show the relevant lot or lots on the initial plan of subdivision as primary thoroughfare. The question whether that land corresponds with land designated as primary thoroughfare on the scheme plan then falls to be decided by the local government under s 31(2) and by the registrar of titles under s 32(2).
[36] Furthermore, although the answer to that question seems clear enough in this case, that would not necessarily be so in all cases. When the scheme plan in this matter was approved, the Act did not require it to be a survey plan. The material specified in Pt A of the Schedule to the Act, which s 5(2)(a) required to be included with the application for approval of the scheme, included a real property description of the whole of the land comprising the Site (item 6), but the “plan of the scheme of development” required metes and bounds descriptions and real property descriptions only “where appropriate” (item 18(a)). Otherwise it required only the “identification on the [S]ite plan of the location and area of each of the proposed precincts (including the primary thoroughfare precinct) and their component parts” (item 18(b)). Consistently with those provisions, the Hope Island Resort scheme plan included real property descriptions only of the lots comprising the whole site. It did not include metes and bounds measurements. Also, the scheme plan was drawn to a scale of 1:10,000, whereas the part of SP 197707 which depicts Lot 989 was drawn to a scale of 1:5,000. Upon the primary judge’s construction, the registered plan of subdivision might not give notice to an intending purchaser that a lot is primary thoroughfare, and that might not be clear even if the intending purchaser also inspected the scheme plan. In this case there were indications in the contract by which Yolla purchased the lot that it was intended to be primary thoroughfare, but the hypothetical example of a purchaser without any such notice must be taken into account in construing the Act. That such a purchaser might be disadvantaged by a judicial declaration that a lot comprises primary thoroughfare or, more extremely, by an order to transfer the land for no consideration to a primary thoroughfare body corporate (if the purchaser is not protected by statutory indefeasibility of registered title), is unlikely to reflect the legislative purpose.
[37] The literal meaning of s 33(1), that it conditions a registered proprietor’s obligation to transfer a lot to the primary thoroughfare body corporate upon the lot being shown “on” the approved and registered plan “as” primary thoroughfare, serves the important purpose of giving notice of that status to the world, including in particular to the primary thoroughfare body corporate itself, potential purchasers of the lot, and purchasers of other lots in the scheme. It should not be assumed that the different statutory purposes identified by the primary judge (see [28] of those reasons) are pursued by the Act at all costs.[6] In any event, since those purposes were inferred from the primary judge’s construction of the Act, they cannot supply independent support for that construction.
[38] The requirement that the lot be shown on the registered plan as primary thoroughfare was not met in this case, whether or not s 33(1) allows reference only to an initial plan of subdivision and whether or not the obligation in s 33(1) is imposed only upon the person who was the registered proprietor of the lot when it was created. The initial plan of subdivision indicated that the subject land was not primary thoroughfare by including it as an undifferentiated part of the balance land rather than within land designated as primary thoroughfare, no subsequent plan designated the subject land as primary thoroughfare, and the designation on SP 197707 of land other than the subject land as primary thoroughfare also indicated that the subject land was not primary thoroughfare.
[39] The primary judge regarded the consequence of Yolla’s construction that s 33 could never be engaged in respect of the land within Lot 989 as being disadvantageous. I have not found it necessary to decide whether s 33 could never be engaged in any case in which land designated as primary thoroughfare on a scheme plan was not included and designated as primary thoroughfare on the initial plan of subdivision, but any such disadvantage to the primary thoroughfare body corporate and other persons interested in the scheme must be set against the potential disadvantage to a purchaser for value of the relevant lot. Another disadvantage of Yolla’s construction perceived by the primary judge was that even a voluntary transfer of Lot 989 to the HIPT body corporate would not engage those provisions of the Act conferring rights and duties on the primary thoroughfare body corporate and others in relation to primary thoroughfare. Whether or not that is a consequence of Yolla’s construction is another question I have found unnecessary to answer. Again, the suggested disadvantage would need to be assessed in light of the consequences for purchasers of lots who are not given the notice required by the Act that the lots comprise primary thoroughfare.
[40] The problem here arose only because, as the Court must assume for the purposes of this appeal, the original proprietor failed to lodge a plan showing the subject land as primary thoroughfare in conformity with s 30 of the Act, the local government approved that plan in contravention of s 31, and the registrar of titles registered that plan in contravention of s 32. Such a remarkable concatenation of circumstances would not have been foreseen when the Act was drafted. The loss and inconvenience which lot holders and other interested persons may have sustained as a result of the canal land not being held by the HIPT body corporate are attributable to those (assumed) contraventions rather than to any deficiency in the statutory text. Acknowledging that views might reasonably differ upon this issue, in my respectful opinion the construction preferred by the primary judge involves an unjustified departure from the literal and natural meaning of that text and did not accord sufficient weight to the principle that “where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights”.[7]
Proposed Orders
[41] I would make the following orders:
1. Allow the appeal.
2. Set aside the orders made in the Trial Division on 31 July 2013 and 21 August 2013.
3. Order instead that the application be dismissed with costs.
4. The first respondent is to pay the appellant’s costs of the appeal.
[42] GOTTERSON JA: I agree with the orders proposed by Fraser JA and with the reasons given by his Honour.
Footnotes
[1] It was common ground in the parties’ submissions that the expression “for the time being” caters for situations which did not occur in this case. After the initial engagement of ss 30-32 of the Act, those provisions might, in a particular case, be engaged again where the approval of a scheme identified an area as a future development area for which a provisional approval might be sought under s 22 of the Act. Alternatively, after registration of the initial plan for an approved scheme, the obligation in s 33 might again be engaged upon the creation of additional primary thoroughfare by a plan of subdivision of a secondary lot within a residential precinct which includes a lot constituting primary thoroughfare, under s 59(3B) of the Act. Neither alternative applied in this case.
[2] The Act provides for estates and interests in land which becomes inundated by water or subject to tidal influence as provided for in an approved scheme to continue and that such land may be subdivided by way of building units plan or a groups title plan, provided that permanent above water access is provided from each lot on the plan to a primary thoroughfare or a secondary thoroughfare, on which there is to be a road: ss 80 and 81.
[3] There was no challenge to the primary judge’s conclusion that the expression “registered proprietor” in s 33(1) comprehended “registered owner” under the Land Title Act 1994 (Qld).
[4] [2013] QSC 191 at [65].
[5] [2013] QSC 191 at [75].
[6] See Carr v Western Australia (2007) 232 CLR 138 at 142 – 143 [5].
[7] R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603 at 619 [43].