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Lambert Property Group Pty Ltd v Daly[2015] QPEC 4

Lambert Property Group Pty Ltd v Daly[2015] QPEC 4

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Lambert Property Group Pty Ltd v SJ Daly & Ors [2015] QPEC 4

PARTIES:

LAMBERT PROPERTY GROUP PTY LTD

(applicant/respondent)

v

SEAN JOHN DALY

(first respondent/applicant)

and

DANIELLE MARY DALY

(second respondent/applicant)

and

SEAN JOHN KENNEDY DALY

(third respondent/applicant)

FILE NO/S:

3900/13

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of various applications

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

20 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2015

JUDGE:

RS Jones DCJ

ORDER:

  1. The proceedings commenced by Lambert Property Group Pty Ltd by originating application filed on 11 October 2013 be struck out;
  2. I will hear from the parties as to costs.

CATCHWORDS:

ORIGINATING APPLICATION – where applicant respondent filed originating application seeking declaratory relief on 11 October 2013 – where respondent applicants were unsuccessful in previous strike out application – where strike out application primarily grounded on the applicant respondents’ failure to properly prosecute its originating application

STRIKE OUT APPLICATION – where respondent applicants sought to renew their strike out application by way of an oral application – where oral application opposed primarily on the ground that it lacked merits or, in the alternative ought be brought in a more formal way by the filing of a further application and supporting material

Cooper v Hopgood & Ganim [1999] Qd R 113

Battersby v Anglo-American Oil Co Ltd [1945] KB 23

MacDonnell v Rolley & Ors [2000] QSC 58

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

Hansell and Anor v Collison Finance and Investments Pty Ltd and Ors [2006] QDC 54

Lambert Property Group Pty Ltd v S Daly & Ors [2014] QPEC 44

COUNSEL:

Mr Gore QC with Mr JG Lyons of counsel for Lambert Property Group Pty Ltd

Mr Horton QC for S, D and SJ Daly

SOLICITORS:

HWL Ebsworth Lawyers for Lambert Property Group Pty Ltd

Minter Ellison Lawyers for S, D and SJ Daly

  1. [1]
    At the heart of the proceedings heard by me on 10 February 2015 were the following matters:
  1. Whether the three respondent applicants (the Dalys) ought be permitted to prosecute an oral application to strike out the applicant respondent’s proceedings commenced by originating application filed 11 October 2013;
  2. That, in the event that the Dalys wished to strike out the applicant respondent’s proceedings they ought do so by filing an application in pending proceedings together with supporting material;
  3. In the event that I were to entertain the oral strike out application it ought be refused;
  4. Any issues concerning costs ought be delayed until the full merits of the parties’ respective positions have been exposed.

For the reasons set out below the orders of the court are:

  1. The proceedings commenced by Lambert Property Group Pty Ltd commenced by originating application filed on 11 October 2013 be struck out;
  2. I will hear from the parties as to costs.

Background

  1. [2]
    Lambert Property Group Pty Ltd (LPG) is in the process of carrying out a major multi-unit residential development at Kangaroo Point. As a part of this project LPG intends to erect a ten storey multi-unit complex comprising of 10 dwelling units. As I understand it, this would be stage 3 of the overall development. The proposed stage 3 development is located on land described as being “proximate” to land owned by the Dalys (the Daly land) and on which single unit residential dwellings are located. Of particular relevance in the dispute between the parties is the existence of two access easements described as Easements A and B. In the written material of LPG the easements are described in the following way:[1] Easement A is described as being an easement for a right of way; the Daly land is burdened by Easement A and is the servient tenement and the LPG land is benefited by the easement and is the dominant tenement. Easement B is also a right of way easement but in respect of this easement the land owned by LPG is burdened by the easement and is the servient tenement and the Daly land is benefited by the easement and is the dominant tenement. No issue was taken with that description of the easements by Mr Horton QC, counsel for the Dalys.
  1. [3]
    Stage 3 of the LPG development has had an unfortunate history and some commentary on the chronology of events is warranted. The entirety of the land owned by LPG has been the subject of development applications lodged with the Brisbane City Council (the Council)[2]. For reasons it is not necessary to go into, on 19 November 2010 this court gave judgment in Planning and Environment Court Appeals 1647/08 and 1814/08 giving certain relief, including a development permit for a material change of use for multi-unit dwellings over the land owned by LPG. Both of those proceedings involved submitter appeals in which the Dalys were submitters opposed to the proposed development. That those appeals were able to be dealt with without a full hearing of the merits on 19 November 2010 was because certain agreements had been reached between LPG and, in particular, the Dalys. Again for reasons it is not necessary to go into, LPG considered it necessary to make further changes to its proposed development over the stage 3 land. This necessarily required LPG to seek relief pursuant to s 369 of the Sustainable Planning Act 2009 (SPA). The Dalys made it abundantly clear that they would oppose any such application for relief on the basis that the changes were “permissible changes” for the purposes of s 369 of the SPA.
  1. [4]
    Aware of the Dalys’ opposition, LPG, on 11 October 2013, filed an originating application which brought the current dispute between LPG and the Dalys to a head. The relief sought in that originating application (3900/13) was for declaratory relief pursuant to s 456 of the SPA. The essential thrust of the relief sought were declarations that the absence of consent on the part of the Dalys was no barrier to LPG lodging a request to change a development approval nor to the lodging of a code assessable development application nor to the lodging of an alternative development application. The then proposed development was referenced to paragraphs of an affidavit of Mr BJ Lyons dated 11 October 2013 “or some further iteration of that development”[3] The originating application was amended (but is yet to be filed) on or about 22 November 2013 and some of the consequences of the amendments are discussed below.
  1. [5]
    On 16 December 2013 the Dalys filed and served their “Respondents’ Statement of Facts, Issues And Contentions” in reply. That document set out a number of allegations including that the development as then proposed generated a use which was inconsistent with the intent and purpose of Easement A, would result in a nuisance to the Dalys, and was substantially different from the form of development approved by this court on 19 November 2010. The document concluded with the following assertions:

“33.The use which the applicant wishes to make of Easement A in its proposed development would be inconsistent with the terms of that easement in that carrying out such a development would cause:

  1. (a)
    the burden on the easement to increase substantially and in a manner that would interfere unreasonably with the respondents…
  1. (b)
    the land which does not, on the terms of the easement, benefit from it, to accrue such a benefit…
  1. (c)
    contrary to the express terms of Easement A, a nuisance to the owners and occupiers of the servient tenements…
  1. (d)
    a use of Easement A that is contrary to its express terms…
  1. 34. In the premises, the proposed development is one for which the consent of the owners of the land comprising Easement A is required.
  2. 35. The respondents do not consent to the proposed development, to the alternative form of it, or the (yet to be defined) ‘further iterations’ of them.”
  1. [6]
    On 15 January 2014 Judge Searles ordered, among other things, that:

“2.On or before 17 January 2014, the applicant (LPG) shall:

  1. (a)
    provide to the respondents plans showing any proposed development the subject of these proceedings; and
  1. (b)
    file and serve any reply to the Respondents’ Statement of Facts Issues and Contentions.”

The hearing of the application of LPG was then adjourned to 31 January 2014.

  1. [7]
    The proceedings came back before this court on 23 July 2014 and on that date Judge Horneman-Wren SC made a number of orders designed to progress any strike out application intended to be brought by the Dalys. Subsequent to those orders the Dalys filed an application in pending proceedings on 30 July 2014. That application sought an order from this court that LPG’s originating application filed 11 October 2013 and amended originating application dated 22 November 2013 be struck out for want of prosecution. The Dalys also sought their costs of the proceedings.
  1. [8]
    The LPG amended originating application deleted any reference to the owner’s consent not being required for lodging a request to “change” the development approval and any reference concerning owner’s consent for “code assessable” development. Instead declarations were sought that owner’s consent was not required from LPG for the lodging of a development application nor for the lodging of an “alternative” development application as particularised. The reference to “or some further iteration of that development” remained.

The strike out proceedings

  1. [9]
    As best that I can ascertain, between 1 February 2014 and 30 June 2014 LPG applied to have court review of its application as amended adjourned on 5 occasions. Also as I understand it, those applications for an adjournment were consented to by the Dalys. However, on or about 18 July 2014 solicitors for the Dalys advised LPG’s solicitors that any further adjournments would not be consented to and that if LPG did not withdraw its application, a strike out application would be brought.
  1. [10]
    The strike out application was heard by me on 19 August 2014. After hearing from Mr Gore QC for LPG and Mr Horton QC, for the Dalys I made the following orders:
  1. The strike out application is dismissed;
  1. The proceedings are to be adjourned to 2.00pm 19 December 2014 before myself;
  1. I will hear from the parties if necessary as to costs.
  1. [11]
    In fact the matter did not come back before me until 10 February 2015. On that occasion Mr Horton made an oral application to renew the Dalys’ strike out proceeding. That such an oral application was made was no doubt largely motivated by comments I made in my ex tempore reasons on 19 August 2014:

“… On balance, but with some genuine reservation I must say, I have decided to exercise my discretion in favour of the Lambert Group and not strike out the application.

Now, I might at this stage put on the record that as I have foreshadowed, while I have not made the proceedings the subject of any guillotine order, the Lambert Group should be alerted to the fact that when this matter comes back before me and the same situation exists, or similar situation exists, as far as I am concerned there would be very good reasons to end the proceedings on that date, even if I were to proceed on the basis of an oral application made on the next return date for a striking out of the proceedings.”

  1. [12]
    The reference to “the same situation” or “a similar situation” was a reference to the uncertainty as to the nature of the actual form of development LPG intended to rely on in pursuit of its application for declaratory relief.
  1. [13]
    In the proceedings before me on 19 August 2014 Mr Horton identified the following matters as warranting the strike out of the LPG proceeding:
  1. The Dalys are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.[4]
  2. LPG’s originating application as amended was incapable of being of utility.
  3. The delays in the proceedings were attributable entirely to LPG in that it has not been able to identify a form of development capable of grounding its application for declaratory relief.
  4. LPG were in breach of the order made by Searles DCJ on 15 January 2014 in that they had failed to reply to the Dalys’ Statement of Facts, Issues and Contentions by 17 February (sic) 2014.[5]

And in his written outline of argument, after referring to the decision of McGill DCJ in Hansell and Anor v Collison Finance and Investments Pty Ltd and Ors [2006] QDC 54 at para [40], the following submission was made:

“The applicant has not reached a stage of articulating the case it is prepared to prosecute. The delay has been attributable entirely to the applicant and its failure to have put in place such arrangements as its proposed development properly required. The applicant seeks a declaration of right, but without being able to say that the facts as presently exist give them that right. The relief sought is presented on the basis of a purely hypothetical case. …”

  1. [14]
    Both Mr Gore and Mr Horton relied on their written submissions for the August 2014 proceedings but submitted supplementary submissions for the proceedings heard by me on 10 February 2015. The essential arguments for the Dalys are conveniently summarised in Mr Horton’s submissions as follows:

“3.All the submissions made on behalf of the Daly respondents in the earlier outline of argument remain good. In three respects the grounds of (sic) have become more meritorious:

  1. (a)
    it is now 16 months since the applicants commenced this matter and it has progressed no further than when the matter was last before the court in August last year. It follows that the time since the matter was commenced and for which the delay has persisted is much longer than before;
  1. (b)
    the respondent offers no evidence for the reasons for its further delay;
  1. (c)
    the prejudice suffered by the Daly respondents is demonstrable: they have retained solicitors and counsel and have to date born the costs of the proceeding and of the various appearances before this court (including in seeking to have the matter disposed of for want of prosecution);
  1. There are two additional reasons to grant the application for dismissal or strike out of the proceeding.
  1. (a)
    the applicant has, since the matter was last before the court, commenced a proceeding in the Supreme Court for a statutory easement against the Body Corporate for the neighbouring property Castlebar Cove… This seems to suggest that relief sought in the present proceeding, the grounds advanced and the nature of the development it defines may not ultimately be advanced by the applicant and may depend upon the outcome of the Supreme Court litigation (to which the Daly respondents are not a party);
  1. (b)
    this matter was adjourned to late last year on the basis that negotiations with the Body Corporate of the Castlebar Cove development were underway. Those negotiations ceased…”
  1. [15]
    According to Mr Horton, LPG was simply trying to keep the proceedings in this court on foot “to keep its powder dry on a development which may or may not proceed” and, at the same time, still refused to offer any evidence as to how it intended to prosecute its proceedings in this court.
  1. [16]
    On behalf of LPG it was submitted that I ought not entertain the Dalys’ oral application and that if such an application was contemplated it should be done formally and include a time table for the filing and serving of material by both sides. In this regard Mr Gore handed up a copy of a draft order contemplating a number of formal steps culminating in a hearing date in the May 2015 sittings of this court. According to Mr Gore, to allow the Dalys to proceed by way of an oral application would be to deny LPG the ability to fairly consider its position and what evidence it may need to call in response.[6] I am unable to agree with that submission for the following reasons.
  1. [17]
    First, the observations that I made in my ex tempore reasons of 19 August 2014 made it abundantly clear, in my view, that an oral application to renew Daly’s strike out application would be treated sympathetically.[7] Second, there is nothing in the material now sought to be relied on by the Dalys which could take LPG by any real surprise and cause material prejudice to it. That is, the factual and legal matrix underlying the Dalys’ application remained the same save for those matters identified in paragraphs 3 and 4 of Mr Horton’s submissions referred to above. Those were all factual matters that LPG would have been well aware of and, in my view, would cause no material surprise or prejudice. Third, given the sophistication of LPG’s legal team it would not be an unreasonable expectation that, if they were genuinely concerned about the risk of a strike out application being renewed on the return date, correspondence could have been directed to the Dalys’ lawyers asking whether or not that was their intention and, if so, on what basis would that application be pursued. A further matter but of lesser consequence than the previous matters, is that a timetable of the type proposed on behalf of LPG would simply involve all the parties in further delay and expense. It may be that further delay would suit LPG but that is not to the point.

The merits of the strike out application

  1. [18]
    Before proceeding further I intend to proceed on the basis of two matters raised by Mr Gore and favourable to LPG. The first is that any breach of the orders made by Searles DCJ have long been overtaken by events and there would be no warrant for any punishment of LPG on the basis of any breach of those orders. Second, I agree that in a technical sense it would not be appropriate to dismiss LPG’s proceeding on the basis that it was in effect doomed to fail and there was no need for a trial. That is because the Dalys’ application was not argued or examined on that basis. That said, for reasons which ought become obvious, it appears to me that if LPG were required to prosecute its proceeding as the facts now stand, it would almost inevitably fail.
  1. [19]
    In Tyler v Custom Credit Corp Ltd & Ors[8] Atkinson J (with McMurdo P and McPherson JA agreeing) relevantly said:

“When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Unitary Civil Procedure Rules (UCPR) r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. These include:

  1. how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
  1. how long ago the litigation was commenced or causes of action were added;
  1. what prospects the plaintiff has of success in the action;
  1. whether or not there has been disobedience of Court orders or directions;
  1. whether or not the litigation has been characterised by periods of delay;
  1. whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  1. whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
  1. whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
  1. how far the litigation has progressed;
  1. whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
  1. whether there is a satisfactory explanation for the delay; and
  1. whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.” (footnotes deleted)
  1. [20]
    That list, of course, was not meant to be exhaustive. However, in my respectful opinion, it provides a very helpful guide as to the matters that are likely to be relevant in dealing with an application to strike out a proceeding for want of prosecution.
  1. [21]
    On balance, of those matters identified by AtkinsonJ, I do not consider the following to be of significance in determining the outcome of this application: the first, the fourth, the seventh, the tenth and the twelfth matters. However, notwithstanding this conclusion, comment on some of those matters is desirable. The subject proceedings were commenced on 11 October 2013. Ordinarily one would expect an application for declaratory relief to have been prosecuted and determined by now. However, it is of relevance in this regard that there were five adjournments granted with the consent of the Dalys and it was not until 18 July 2014 that they gave notice that no further adjournment would be tolerated. Further, while in my view it could not be said that the delays have resulted in prejudice to the Dalys leading to an inability to ensure a fair trial, they have been prejudiced by the conduct of LPG in other ways. They have been required to incur the costs associated with numerous court appearances and, since October 2013, have been required, as MrHorton put it, to live with the threat of this litigation hanging over their heads. I agree with Mr Horton that the Dalys are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its potential consequences hanging over their heads. That is particularly so, in my view, in circumstances where the facts that are intended to be relied on by LPG in support of its application are in an apparent continual state of flux.[9]
  1. [22]
    Returning then to the other matters identified by AtkinsonJ, as I have already indicated, I consider LPG’s prospects, as its case is now pleaded, to be extremely poor. This is also a case where there has been delay in the prosecution of the proceeding through no fault of the Dalys. The delays are really able to be attributed to LPG’s difficulty in identifying a defendable form of development. Accordingly there has been delay through no fault of the Dalys and no satisfactory explanation has been advanced for those delays. Rule 4 of the Rules of this Court which, relevant to this proceeding, mirrors the philosophy articulated in r5 of the Uniform Civil Procedure Rules 1999, provides:

“(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in proceedings at a minimum of expense.

  1. (2)
    Accordingly, these rules are to be applied by the court with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
  1. (3)
    In a proceeding in the court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.” (emphasis added)
  1. [23]
    LPG, in my view, is in breach of its implicit undertaking to the court and to the Dalys to proceed in an expeditious way. In MacDonnell v Rolley & Ors[10] Byrne J refused to renew a writ which had been issued but not served. His Honour relevantly said[11]:

“The plaintiff has always had the means to pay for service of the writ. She has chosen not to expend the $50 or less to do so, preferring to leave the litigation in suspension while she pondered whether to prosecute it. Speaking generally, such calculated inactivity is not to be encouraged. It is not for a party to decide whether there should be effectively a stay of proceedings. And ‘it is not right that people should be left in ignorance of proceedings that have been taken against them if they are here to be served’.”

  1. [24]
    The decision of Byrne J went to the Court of Appeal, but the appeal was dismissed.[12] There are, of course, a number of distinguishing features between this case and that in MacDonnell. Here, the Dalys are aware of the nature of the relief being sought against them and are also aware of the underlying reasons for that relief. In that sense it could not be said that the Dalys have been left in ignorance of the case alleged against them. However, they are yet to be informed about the final factual basis upon which LPG will rely in the prosecution of its application. Further, the reality is that LPG is seeking to delay the prosecution of its proceedings in this court until it has resolved (or at least materially advanced) its Supreme Court action.
  1. [25]
    On 19 November 2014, LPG commenced proceedings pursuant to s180 of the Property Law Act 1974 against Body Corporate for Castlebar Cove C.T.S, an adjoining owner, seeking relief as a statutory right of user. According to Mr Gore those proceedings are yet to be determined but “is expected to be heard quite promptly”. However, I was not taken to any material identifying the details of those proceedings, nor to any material identifying at what stage those proceedings are at. In Hansell & Anor v Collison Finance and Investments Pty Ltd & Ors[13], after referring to a number of authorities, McGillSCDCJ stated:

“… As a general proposition, a party who has commenced proceedings is obliged to pursue them, and is not entitled to any concession under the rules because of any delay brought about by a deliberate decision to refrain from pursuing them for some other reason, whether because it was thought sufficient just to carry on the action against another defendant, or to await the outcome of other proceedings between the parties, or in order to allow more time to assemble evidence in support of the claim. In my opinion the same applies to refraining from serving a proceeding because of a desire to litigate another matter first. The vice in this approach is that it involves a unilateral interference by the plaintiffs with the ordinary processes of the court. It involves the plaintiffs giving themselves a stay, without the defendant having the opportunity to be heard about it.” (footnotes deleted)

  1. [26]
    To a similar effect is the observation made in Battersby v Anglo-American Oil Co Ltd[14], referred to by his Honour in Hansell:[15]

“Ordinarily, it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried or to await some future development. It is for the court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been taken against them if they are here to be served.”

  1. [27]
    As I have already identified, this is not a case where the Dalys are entirely in ignorance of the nature of the case against them. However, as matters presently exist, the following conclusions seem inevitable:
  1. If LPG were required to proceed with its application as amended in a timely way, its prospects of succeeding could only be described as being extremely poor.
  1. LPG, even at this stage, is unable to identify the details of its proposed development and that is a fundamental requirement of it being able to successfully prosecute its proceeding in this court.
  1. [28]
    The two matters identified are interrelated. LPG is in an extremely difficult position in that they are unable to secure suitable access arrangements, including construction access, to its land and are thereby involved in disputes not only with the Dalys in this court but with the adjoining owner Body Corporate for C.T.S. Castelbar Cove in the Supreme Court. During submissions I enquired of Mr Gore whether, if LPG were successful in the Supreme Court, would the proceedings in this court become redundant. Mr Gore’s candid response was to the negative and that success in the Supreme Court proceedings was a “condition precedent” to success in this court.[16] That success in the Supreme Court was a condition precedent to success in this court was repeated by Mr Gore on a number of occasions. Also during argument I asked whether it necessarily followed that, if LPG lost in the Supreme Court, then it could not succeed in its proceedings in this court as presently pleaded. Mr Gore agreed and went on to say to the effect that if LPG were to lose in the Supreme Court then the development plans they now rely on in this court would have to be abandoned and the development would have to be redesigned and new plans prepared.[17] According to Mr Gore in such circumstances LPG would be “in real strife”.[18] Mr Gore also candidly conceded to the effect that, in reality, LPG’s application in this court could only be sensibly prosecuted after determination of the Supreme Court proceedings.[19]
  1. [29]
    In paragraph 13 of the submissions made on behalf of LPG it was said:

“There are 3 other additional (and interrelated) considerations. The first is that the court has already recognised that striking out the proceeding would not remove the threat of litigation, and that such relief would be ‘relatively marginal and short lived’. The second is that, to the extent that the strike out application is intended by the Dalys to be a foundation for an application for costs, the court will be better placed to decide the issues of costs when the proceedings are finally determined on the merits… The third is that the presence of the proceeding gives the court the opportunity to impose time constraints and directions (if required) again a matter already recognised previously.” (footnotes deleted)

  1. [30]
    In my view, the issue of costs are not determinative in any way to the outcome of the strike out application. Costs can be dealt with as a discrete matter. I accept that to strike out this proceeding would not remove from the Dalys the threat of further similar (if not identical) litigation sometime in the future. Nonetheless, I have reached the conclusion that these proceedings ought be struck out. It is clear from the material that these proceedings cannot be sensibly prosecuted until the Supreme Court proceedings (potentially including appeals) have been exhausted. As I have already indicated I have been given no indication as to the state of those proceedings but it would not be unrealistic to expect them to involve many months or even in excess of a year. Further, it is also clear that LPG could not sensibly prosecute its application as presently pleaded and the Dalys will not know the true nature of the factual matrix upon which LPG will eventually rely until the Supreme Court proceedings have been exhausted. If LPG succeeds, as I understand it, the factual matrix as it presently stands will be materially the same (if not identical) to that as presently pleaded. However, if LPG is unsuccessful in the Supreme Court it will be a materially different factual matrix that will be relied upon. It would be inherently unfair to the Dalys to allow such a state of uncertainty to continue and that unfairness outweighs to a significant extent any prejudice that might be suffered by LPG. As presently particularised LPG cannot sensibly prosecute its application through no fault on the part of the Dalys. And, the striking out of LPG’s current application would not prevent it commencing fresh proceedings in this court in the future if necessary.
  1. [31]
    For the reasons given the orders of the court are:
  1. That the proceedings commenced by Lambert Properties Group Pty Ltd byway of originating application filed on 11 October 2013 be struck out;
  1. I will hear from the parties as to costs.

Footnotes

[1] E.g paragraphs 9, 10 and 11 of LPG’s originating application.

[2] The Council, while a party to earlier proceedings, was not a party to the subject proceedings.

[3] Refer to paragraphs 1, 2 and 3 of originating application of 11 October 2013.

[4] In this regard reliance was placed on the judgement of McPherson JA in Cooper v Hopgood & Ganim [1999] 2 Qd R 113 at 124.

[5] In fact, the order made by Searles DCJ on 15 January 2014 required any reply to be filed and served on or before 17 January 2014.

[6] Paragraph 12 of LPG’s supplementary submissions.

[7] Refer also to transcript of proceedings on 19 August 2014 at p 1-21 L 34 to p 1-23 L14.

[8] [2000] QCA 178 at para [2].

[9]Cooper v Hopgood & Ganim [1999] QdR 113 at 124 per MacPhersonJA.

[10] [2000] QSC 58.

[11] At [12].

[12]MacDonnell v Rolley [2001] QCA 32.

[13] [2006] QDC 54 at para [40].

[14] [1945] KB 23 at 32.

[15] At para [29].

[16] Transcript (T) 1-6 L 25-35.

[17] T 1-11 L 40-46.

[18] T 1-12 L 3-5.

[19] T 1-10 L 30-35.

Close

Editorial Notes

  • Published Case Name:

    Lambert Property Group Pty Ltd v SJ Daly & Ors

  • Shortened Case Name:

    Lambert Property Group Pty Ltd v Daly

  • MNC:

    [2015] QPEC 4

  • Court:

    QPEC

  • Judge(s):

    Jones DCJ

  • Date:

    20 Feb 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Battersby & Ors v Anglo-American Oil Company Ltd & Ors [1945] KB 23
2 citations
Jump To
Cite 1 - [1945] KB 23
Cite 2 - [1945] KB 23
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
1 citation
Jump To
Cite 1 - [1999] 2 Qd R 113
Cooper v Hopgood & Ganim [1999] Qd R 113
2 citations
Jump To
Cite 1 - [1999] Qd R 113
Cite 2 - [1999] Qd R 113
Hansell v Collison Finance and Investments Pty Ltd [2006] QDC 54
3 citations
Jump To
Cite 1 - [2006] QDC 54
Cite 2 - [2006] QDC 54
Cite 3 - [2006] QDC 54
Lambert Property Group Pty Ltd v Daly [2014] QPEC 44
1 citation
Jump To
Cite 1 - [2014] QPEC 44
MacDonnell v Rolley [2000] QSC 58
2 citations
Jump To
Cite 1 - [2000] QSC 58
Cite 2 - [2000] QSC 58
MacDonnell v Rolley [2001] QCA 32
1 citation
Jump To
Cite 1 - [2001] QCA 32
Tyler v Custom Credit Corp Ltd [2000] QCA 178
2 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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