Heritage Properties Pty Ltd v Bettson Properties Pty Ltd
[2007] QSC 222
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- Unreported Judgment
- Heritage Properties Pty Ltd v Bettson Properties Pty Ltd[2007] QSC 222
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Heritage Properties Pty Ltd v Bettson Properties Pty Ltd[2007] QSC 222
Heritage Properties Pty Ltd v Bettson Properties Pty Ltd[2007] QSC 222
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Interlocutory Application |
ORIGINATING COURT: | |
DELIVERED ON: | 24 August 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 June 2007 |
JUDGE: | Chesterman J |
ORDER: | That the costs of and incidental to the application for summary judgement be reserved to the trial judge |
CATCHWORDS: | INTERLOCUTORY APLLICATION - APPLICATION FOR COSTS- where a cross application in the proceeding was brought by the respondents for the proceeding to be dismissed or alternatively for the statement of claim to be struck out – where that application was dismissed by consent – where immediately prior to that application the applicants were granted leave to serve an amended originating application – where it was contested as to the effect of that order on the subsequent dismissal of the application for summary judgement – where the applicants and respondents argued for the costs of the summary judgement application. – whether it was appropriate in an interlocutory application to make orders which were themselves dependent upon making a finding as to a contested construction critical to the outcome of the litigation. |
COUNSEL: | Mr S Couper QC with him Mr J Otto for the applicants Mr W Sofronoff QC with him Mr Franco for the first and second respondents Mr E Morzone for the third respondent |
SOLICITORS: | Hopgood Ganim Lawyers for the applicants Russel & Company for the first and second respondents |
[1] On 13 June 2007 I gave the applicant leave to deliver an amended originating application and ordered that South Pine Estates Pty Ltd be joined as the second applicant. The applicants were to pay the costs which the respondents had incurred and which would be wasted by reason of the amendments. A cross application brought by the respondents for orders that the proceeding be dismissed or, alternatively, that the amended statement of claim be struck out, was dismissed by consent. Counsel for the respondents accepted that the amended application and statement of claim, for which I had given leave, raised an arguable entitlement to relief.
[2] Both applicants and respondents asked for the costs of the application for summary judgment. The respondents’ contention was that its application was defeated only by the last minute amendments, and that the application would otherwise have succeeded.
[3] The applicants’ position was that the application for summary judgment was “doomed to fail” without the further amendments, and that the various emanations of the application and statement of claim all raised a trialable case against which an application for summary judgment would have foundered.
[4] The dispute concerns “water rights” as defined by a deed dated 11 December 2001 between the second applicant and the first and second respondents. Earlier the third respondent, a local authority, and the second applicant had agreed, pursuant to a Development Deed of 25 March 1994, that the second applicant could develop land subject to the terms and conditions of the deed. Provision was made for the supply and reticulation of water to the lots to be developed. The second applicant acquired what were described as “water rights” which entitled it to supply water to 250 subdivided allotments.
[5] The second applicant agreed to assign its water rights to the first and second respondents so that the rights, or some of them, could be utilised if the first and second respondents obtained development consent, as they did.
[6] Clause 5.2 of the Water Rights Deed (as it was called) provided that:
“If the developer (first and second respondents) … is unable to utilise any of the water rights on the (development) site, they must consult with (the third applicant) in respect of those surplus water rights and allow (the second applicant) to manage the sale of those surplus water rights …”
[7] The first and second respondents obtained development approval but for the construction of fewer than 250 lots. Accordingly the applicants contend that there were surplus water rights which the second applicant sold to the first applicant. Put simplistically the first and second respondents contend that on its proper construction clause 5.2 has no scope for operation because there are no surplus water rights if those respondents could make use of any water rights. They have made use of the rights to supply water to the lots actually approved by the local authority. Alternatively the first and second respondents argue that they are still negotiating with the local authority to increase the density of the development and hence to increase the number of lots to which water would be supplied. The consequence is said to be that it is not yet known whether there will be any surplus rights.
[8] The applicants’ contention is that clause 5.2 operates to the extent that there is a difference between the number of lots to which the first and second respondents will supply or have supplied water, and the allocated number of 250 lots. The difference is said to be a surplus which can be dealt with pursuant to clause 5.2. The sting in the first and second respondents’ attack on the former pleadings depends for its toxicity on its construction of clauses 5.2 and 6 of the Water Rights Deed. It is not necessary to rehearse clause 6. The applicants have a different view about the meaning of those clauses. To a large extent the efficacy of the respondents’ application for summary judgment depended upon their construction of the clauses gaining the assent of the court.
[9] It is clearly inappropriate for the court on an interlocutory application to formulate any opinion about a contested construction of a clause which is critical to the outcome of the litigation. However, without coming to an opinion on that point, it is not possible to decide whether or not the application for summary judgment would have succeeded without the most recent amendments.
[10] The first and respondents alternative argument was that the originating application was premature and was filed before the occurrence of facts which would demonstrate whether or not there was a real dispute between the parties. The essence of the argument is that until the first and second respondents and the local authority have completed all negotiations with respect to the development it cannot be known how many lots there will be and whether there will be any “surplus” of water rights.
[11] I do not think this is right. There was a sufficient dispute between the parties, as to the meaning of the Water Rights Deed, justifying the commencement of declaratory relief. Although things may change in the future the facts to date are that the first and second respondents have not obtained approval to develop 250 lots. On that basis of fact there is a dispute as to whether or not there are surplus rights. The fact that any surplus may disappear with amendments to the Development Deed did not make the seeking of a declaration as to those rights untenable.
[12] Accordingly the award of costs for the interlocutory application for judgment should await a determination of the merits of the dispute as trial.
[13] I order that the costs of and incidental to the application for summary judgment be reserved to the trial judge.