Property Mortgage Services Pty v Hanlon
[2009] QSC 173
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- Unreported Judgment
- Property Mortgage Services Pty v Hanlon[2009] QSC 173
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Property Mortgage Services Pty v Hanlon[2009] QSC 173
Property Mortgage Services Pty v Hanlon[2009] QSC 173
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
DELIVERED ON: | 29 June 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 June 2009 |
JUDGE: | Chief Justice |
ORDER: | In each proceeding it is ordered:
|
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – leave to proceed after many years’ inaction, in proceedings for the grant of an easement – where nevertheless no limitations problem arises – inordinate, substantially unexplained, delay, and evidence of prejudice to respondent Property Law Act 1974 (Qld), s 180 |
COUNSEL: | D Clothier for the applicant in files BS 5393 of 2000 and BS 1449 of 2004 R Derrington SC for the third respondent in file BS 5393 of 2000 N Andreatidis for the respondent in file BS 1449 of 2004 |
SOLICITORS: | Tucker and Cowen for the applicant in files BS 5393 of 2000 and BS 1449 of 2004 Clayton Utz for the third respondent in file BS 5393 of 2000 Corrs Chambers Westgarth for the respondent in file BS 1449 of 2004 |
- CHIEF JUSTICE: The applicant (PMS) has commenced two proceedings. In 5393/2000, it seeks the grant, pursuant to s 180 of the Property Law Act 1974 (Qld), of an access easement over property owned by the third respondent, Mrs Clowes. In 1449/2004, PMS seeks essentially alternative relief, requiring the respondent, Gold Coast City Council, to remove structures which prohibit access, via a dedicated but unformed road, over sand dunes and beach.
- In 1998, PMS purchased lot 82, which borders Palm Beach at the Gold Coast. Lot 82 has always been locked in by lot 1, owned by the first respondents in 5393/2000, persons named Hanlon, lot 99 owned by the second respondents (the Bowens), and lots 80, 81 and 101 owned by Mrs Clowes. When PMS purchased lot 82, while informal access had previously been available from the Gold Coast Highway via lots 1 and 99, that access was revoked and prevented by the construction of a wall. In consequence, lot 82 became accessible only by foot along the “esplanade” or adjacent beach. The esplanade is the area between the eastern boundary of lot 82 and the beach.
- Lot 82 is the site of an older style beach house used by Mr Haney, who controls PMS, and his family. Mr Haney is an admitted solicitor, although not practising as such.
- After PMS purchased lot 82, the Council was approached in relation to access via the esplanade. The esplanade is a dedicated though unformed road. The Council’s position is that it will not build a road on the relevant part of the esplanade, or permit the driving of vehicles along it, because of environmental issues (among other things).
- PMS subsequently contacted the Hanlons, the Bowens and Mrs Clowes requesting an access easement in return for compensation to be assessed. All refused. All raised concerns about the impact of an easement on the redevelopment of their land.
- PMS commenced proceeding 5393/2000, the easement proceeding, on 22 June 2000. On 10 July 2000 Byrne J made directions as to the filing of pleadings and affidavit evidence. PMS filed points of claim on 25 July 2000. Mrs Clowes filed points of defence on 14 August 2000.
- It seems that was the last step taken in proceeding 5393/2000. An unsuccessful mediation in relation to the issues in that proceeding was held on 28 May 2002, with the mediator’s certificate filed on 17 June 2002.
- Faced by the continuing refusal of the Council to allow the passage of vehicles along the esplanade, PMS commenced proceeding 1499/2004, in which it sought declaratory relief against the Council, on 12 February 2004.
- The Hanlons, the Bowens and Mrs Clowes have all now redeveloped their land. That accomplished by the Hanlons and the Bowens means that an easement could not practicably now be granted over their land. On the other hand, Mrs Clowes’ redevelopment incorporates a driveway which leads to a boundary of lot 82.
- On 12 December 2007, the Hanlons and the Bowens filed an application for the dismissal of the easement proceeding against them, for want of prosecution. On 26 February 2008 Dutney J granted that application.
- In each proceeding, PMS now seeks leave to proceed. In 5393/2000, Mrs Clowes has cross-applied for an order that the proceeding be dismissed for want of prosecution.
- PMS has filed further affidavit material, including reports from experts, suggesting that access via Mrs Clowes’ land would offer the most practicable solution to the access problem, and that it would be feasible notwithstanding the redevelopment of her land.
- I list now the circumstances which bear principally on the exercise of the relevant discretions in this matter.
- There has been very substantial delay in the progress of each proceeding. In the case of 5393, unless one should regard the mediation as a step (and probably one should not), almost nine years have elapsed since the last step. No step was taken in 1449 after April 2004.
- There is no adequate explanation for the bulk of the delay. (Negotiations with the Council may have accounted for some small part of it.) This is a relevant consideration though not determinative. There is ground to infer that the delay was not accidental, or the result of oversight, but the consequence of a deliberate choice on the part of PMS not to progress the proceedings.
- Mrs Clowes has been prejudiced by the delay. In particular, if the proceeding is now continued, she has lost the prospect of the grant of an easement over the land of her neighbours, the Hanlons and the Bowens: the focus will rest solely on her own property now.
- While PMS undertakes through Counsel, Mr Clothier, to progress the matter if granted leave, one notes that by the affidavit exhibit 1, on 26 February 2008 Mr Haney confirmed his instructing solicitors were “to now proceed with all due haste”. Little was done.
I note that though the valuer’s report was obtained on 15 October 2008, it was not filed with an affidavit until 20 April 2009. Further, the report of Hyder was produced on 16 January 2009, but not filed with an affidavit until 20 April 2009.
Significantly now, apart from the broader undertaking proffered, PMS advances no detailed plan to progress the action in a timely way should leave be granted.
Also significantly, PMS has not sought to recast the proceeding, by way of amended pleadings for example, since the dismissal of the Hanlons and the Bowens, which occurred as long ago as February 2008.
- There is evidence of anxiety and concern suffered and experienced by Mrs Clowes, who has had the easement proceeding hanging over her head for approximately nine years (cf. Evans v Speakman & Anor [2008] QCA 34, para 49).
- There is ground to doubt the prospects of success of PMS in securing the grant of an easement. While one should be careful about attributing too much weight to a preliminary assessment of prospects of success in a proceeding such as this, the point made by Mr Derrington SC in his submission, for Mrs Clowes, is of some weight, and I extract it as follows:
“The applicant had an alternative and more reasonable route which he could have secured to obtain access to the property but by its inaction that alternative has been lost. (Further) the applicant’s land is not landlocked at all. It has access to the land and apparently occupied the premises for the past 11 years without any apparently significant problems. As appears from the correspondence between the parties, it is not denied that since the commencement of this action the applicant has used the esplanade road reserve for the purposes of access including for workmen, materials and vehicles for renovating the applicant’s premises. The imposition of an easement over Mrs Clowes’ land is unreasonable because it will … significantly interfere with her amenity, require the demolition of part of the wall surrounding her residence and prevent her from using the apron near the garages and the driveway to park vehicles as she and her family customarily do.”
(On the other hand, Mr Clothier points to formed, vehicular access as a fairly standard expectation in this day and age.)
- A consideration going the other way is that the applicant is not subject to a time limitation bar, and in the event that these proceedings are terminated, PMS could commence fresh proceedings. This will ordinarily be a strong consideration favouring a grant of leave, or for declining to dismiss for want of prosecution, even where – as here - there is no statutorily imposed time limitation.
In this sort of situation, however, the position of the respondent must be recognized: a respondent cannot be subjected indefinitely to the burden of stale, unresolved claims.
In an appropriate case, there may be point, where no limitation problem will arise, in nevertheless terminating a proceeding, with a consequence in costs, and compelling a claimant to reconsider the question whether it really does wish to pursue a further claim, with all the responsibilities and risks that entails. One response, where a claimant has previously been guilty of inordinate, substantially unexplained, delay could be to order that no fresh proceeding be commenced unless the costs of the earlier proceeding had first been paid.
Following that course would not be a matter of ‘punishing’ the applicant, as put by Mr Clothier. It would constrain the applicant to review its commitment to pursuing the claim responsibly, where its neglect of that responsibility in the past has unduly burdened the respondents, Mrs Clowes in particular, and has involved substantial breach of its obligation as a litigant.
- Both Mrs Clowes and the Council oppose a grant of leave to proceed. In my view, considerations numbers 1 to 6 above, and the comments I have made in dealing with number 7, warrant a refusal of leave, notwithstanding the absence of a limitations problem.
- There is no need for me to include reference to the authorities, which are well known. The written outlines refer to them sufficiently. I am indebted to Counsel for their assistance.
- In each proceeding, I therefore order as follows:
- that leave to proceed be refused;
- that the proceeding stand dismissed for want of prosecution;
- that the applicant Property Mortgage Services Pty Ltd pay the costs of the respondent, to be assessed on the standard basis;
- that the applicant not commence a further proceeding claiming the same or similar relief unless it has first paid the costs so assessed.