Australian Golf Management Corporation Pty Limited v Logan City Council
[2022] QCA 86
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- Notable Unreported Decision
- Australian Golf Management Corporation Pty Limited v Logan City Council[2022] QCA 86
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Australian Golf Management Corporation Pty Limited v Logan City Council[2022] QCA 86
Australian Golf Management Corporation Pty Limited v Logan City Council[2022] QCA 86
SUPREME COURT OF QUEENSLAND
CITATION: | Australian Golf Management Corporation Pty Limited v Logan City Council [2022] QCA 86 |
PARTIES: | AUSTRALIAN GOLF MANAGEMENT CORPORATION PTY LIMITED ACN 003 285 514 (appellant) v LOGAN CITY COUNCIL (respondent) |
FILE NO/S: | Appeal No 14511 of 2021 SC No 5779 of 2019 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2021] QSC 291 (Bowskill SJA) |
DELIVERED ON: | 20 May 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 April 2022 |
JUDGES: | Sofronoff P and Mullins JA and Martin SJA |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME EXTENSION AND ABRIDGMENT – where the appellant leased land from the respondent – where the appellant subleased the land – where the appellant is seeking damages for breach of the covenant for quiet enjoyment as well as for trespass – where the subletters assigned their rights of action against the respondent to the appellant – whether the appellant should be permitted to amend the statement of claim to add two new causes of action – whether the new causes of action arose out of substantially the same facts as the cause of action for which relief has already been claimed – whether it was appropriate to grant leave to amend the statement of claim Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, considered |
COUNSEL: | B D O'Donnell QC, with B W Wacker, for the appellant D G Clothier QC, with E L Hoiberg, for the respondent |
SOLICITORS: | Russells for the appellant Clayton Utz for the respondent |
- [1]SOFRONOFF P: This is an appeal against a refusal by Bowskill SJA, as her Honour then was, to permit an amendment to a claim and a statement of claim to add two new causes of action.
- [2]By a lease entered into in December 1998, the appellant, who is the plaintiff in the proceeding, leased from the respondent Council the land on which the Logan City Golf Course is constructed. In November 2001, with the Council’s consent, the appellant subleased the land to Cosmo Golf Pty Ltd (Cosmo). It was the latter company which was then to conduct a golf course business on the land and pay a monthly rental to the appellant.[1] Also, in 2001, with the consent of the Council and the appellant, Cosmo granted a company called Logan City Golf Club Pty Ltd (LCGC) a licence to occupy land to conduct the golf course business and otherwise to perform Cosmo’s obligations under its sublease.[2]
- [3]In May 2013, the Council began to conduct construction work on the grounds of the golf course. These works were being carried out, seemingly, in the performance of the Council’s statutory duties. The appellant contends that these works interfered with its interests under the lease.[3]
- [4]The appellant commenced proceedings seeking damages from the Council for breach of the covenant in the lease for quiet enjoyment as well as for trespass. The appellant alleged in its statement of claim that the Council’s works on the golf course rendered large parts of the golf course unusable and resulted in a reduction in the level of business being conducted at the premises as well as a reduction in membership.[4] Other harm to the golf course and the business was also alleged. The appellant alleged that Cosmo was thereby rendered unable to pay rent to the appellant and unable, in various ways, to maintain parts of the golf course. The appellant alleged that the condition of the golf course had deteriorated and that there was a resulting diminution in the value of its interest in the lease.[5]
- [5]Accordingly, the appellant claimed damages for the cost of rectifying the greens, tees, fairways, surrounds, the driving range and its equipment, the irrigation system, the clubhouse and levees. It claimed a sum for the diminution in value of its interest in the land under the lease. It also claimed the loss constituted by the rent that Cosmo had not paid.[6]
- [6]The claim and statement of claim in the proceeding were filed on 31 May 2019, six years to the day after the Council began its works on the golf course but it was not served until 19 May of the following year.
- [7]LCGC was placed into liquidation on a creditors petition on 21 September 2018 and deregistered on 10 May 2020.[7] Cosmo was deregistered on 5 March 2021.[8] However, prior to those events, in July 2018, each of these companies assigned to the appellant their rights of action against the Council in relation to the construction works on the golf course.[9]
- [8]On 10 September 2021 the appellant made an application to amend its claim and statement of claim in a variety of ways. Bowskill SJA allowed many of these amendments to be made. Her Honour refused to grant leave to amend the pleadings to add claims for damages based upon the rights assigned to the appellant by Cosmo and by the LCGC.[10]
- [9]Relevantly, proposed new paragraphs 68 (c)(i) and (ii) alleged that the Council’s works constituted a trespass of Cosmo’s interest in the sublease and a trespass to LCGC’s interest in the sub-sublease (if that is what it was). Proposed new paragraphs 72 and 73 of the amended statement of claim alleged that the trespass caused loss of profits to be suffered by each of these assignors. Proposed paragraphs 74 and 75 alleged the making of the assignment.[11]
- [10]The appellant sought leave to add these allegations and the claims based upon them pursuant to r 375 and r 376 of the Uniform Civil Procedures Rules 1999 (Qld).[12]
- [11]It follows that the appellant had to satisfy her Honour that:
- (a)the new causes of action arose out of substantially the same facts as a cause of action for which relief has already been claimed; and that,
- (b)it would be appropriate to grant leave.
- (a)
- [12]Much effort was spent upon the question whether or not the new causes of action arose out of substantially the same facts as the existing causes of action. Of course, from a certain perspective the facts are substantially the same. There is the golf course. There are the contracts pursuant to which the appellant was to make its money out of the business being conducted there by Cosmo and LCGC. There is the construction work that is said to constitute the wrong. However, there is much that is different.
- [13]In the original claim, the wronged party was the appellant. Now there are said to be two more wronged parties. In the original claim, the appellant’s losses fell into three categories. First, there were various costs of making good physical damage to the property. Second, there was the loss of revenue by way of rent payable by Cosmos. Third, there was an alleged diminution in the capital value of the lease. The amendments would add two new and distinct claims of two entities who the plaintiff will allege each suffered loss of profits in running their businesses.
- [14]The two new causes of action would add to the proceeding a requirement to litigate the effect of the construction upon the profitability of the businesses being conducted by these two entities. As her Honour observed, the nature of the interest said to be affected is different and, so far as Council is concerned, the new pair of cases involve significantly different factual allegations, about the nature of the losses claimed. In that respect, the two new cases are wholly different.[13]
- [15]A judgment about whether or not the new facts do or do not “arise out of substantially the same facts” is not, strictly speaking, a judgement that involves an exercise of discretion.[14] Whether a pleading satisfies such a test is surely an objective matter. However, experience shows that matters of judgment of that kind are akin to exercises of discretion because such judgments involve decisions about matters of degree.[15] Further, once an applicant has satisfied that test, it remains necessary to show that the discretion to permit the amendment should be exercised. Consequently, it has been traditional for appellate courts to apply the same principles to appeals against decisions involving such judgments as they apply to appeals against the exercise of discretion.
- [16]The present case is a fortiori such a case because it is an appeal against a judgment involving a matter of practice and procedure.
- [17]An application to amend a pleading to add a cause of action after a limitation period has expired is a special kind of application. In Brisbane South Regional Health Authority v Taylor,[16] McHugh J pointed out that there are three influences that motivate a legislature to enact limitation periods for commencing actions. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed. Third, people should be able to arrange their affairs and use their resources on the basis, and in the faith that, claims of that kind will not be brought.[17] His Honour observed that certain litigants, including public institutions (like the Council), have a significant interest in knowing that they have no liabilities beyond a definite period. His Honour said that a limitation period is not an arbitrary point of time.[18] It represents the legislature’s judgment that the welfare of society is best served by actions being litigated within the limitation period notwithstanding that this may result in a good cause of action being defeated.[19]
- [18]Bowskill SJA was cognisant of these principles and applied them in an orthodox way.[20] No error has been shown.
- [19]The appellant chose not to give an explanation why the proceedings were not commenced within time. There may be cases in which a failure to explain delay will not be fatal to an application for leave. However, this is a case involving a substantial commercial enterprise and a plaintiff who is already claiming substantial sums of money in the existing claim. The plaintiff is a litigant who was sophisticated enough, or who was at least capable of instructing expert lawyers, who were sophisticated enough to perceive that it might be advantageous for the plaintiff to take an assignment of rights. In a case like this, in the absence of evidence explaining the delay in bringing proceedings and the delay in making the subsequent application, it is difficult to see how the outcome could have been anything other than a refusal of leave.
- [20]I would dismiss the appeal with costs.
- [21]MULLINS JA: I agree with Sofronoff P.
- [22]MARTIN SJA: I agree with Sofronoff P.
Footnotes
[1] Australian Golf Management Corporation Pty Ltd v Logan City Council [2021] QSC 291 at [1] (‘Australian Golf Management v LCC’).
[2] AB at 52.
[3] Australian Golf Management v LCC at [2]-[9].
[4] AB at 28-50.
[5] AB at 43-45.
[6] AB at 45-47.
[7] AB at 511.
[8] AB at 511.
[9] AB at 629.14.
[10] Australian Golf Management v LCC at [10], [38]-[43].
[11] AB at 104.
[12] AB at 143.
[13] Australian Golf Management v LCC, supra at [40].
[14] If one defines discretion as the power to choose between two or more possible alternatives; see Aharon Barak, Judicial Discretion, (Yale University Press, 1989) at 7; Rosemary Pattenden, Judicial Discretion and Criminal Litigation, (Clarendon Press, 1990) at 1.
[15] Cf Pattenden, supra at 2.
[16] (1996) 186 CLR 541 (‘Brisbane South Regional Authority’).
[17] Brisbane South Regional Authority, supra at 552.
[18] Brisbane South Regional Authority, supra at 552.
[19] Brisbane South Regional Authority, supra at 553.
[20] Australian Golf Management v LCC, supra at [41].