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Enhance Property Investments No 3 Pty Ltd v Pier Traders Pty Ltd[2022] QSC 160

Enhance Property Investments No 3 Pty Ltd v Pier Traders Pty Ltd[2022] QSC 160

SUPREME COURT OF QUEENSLAND

CITATION:

Enhance Property Investments No 3 Pty Ltd v Pier Traders Pty Ltd [2022] QSC 160

PARTIES:

ENHANCE PROPERTY INVESTMENTS NO 3

ACN 614 011 175 AS TRUSTEE FOR THE ENHANCE PROPERTY TRUST NO 3

ABN 13 408 805 139

(applicant)

v

PIER TRADERS PTY LTD

(respondent)

FILE NO/S:

BS No 1076 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

3 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2022

JUDGE:

Williams J

ORDER:

  1. The applicant’s application for costs is dismissed.
  2. The respondent’s application for costs is dismissed.
  3. There be no order as to costs.

CATCHWORDS:

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – COSTS FOLLOW THE EVENT – where applicant applied for orders allowing its contractors access to the respondent’s land to erect scaffolding on the common boundary between the two properties – where orders made by consent allowing access – where both parties seek their costs – where respondent had legitimate interests to defend – where the respondent contributed to the protraction of the proceedings – whether special circumstances exist for award of costs against servient owner under s 180(6) of the Property Law Act 1974 – whether an order for costs against the applicant is justified under s 180(5) of the Property Law Act 1974

Body Corporate for Torwood Hill Residential Retreat CTS 24557 v Fittell [2020] QSC 32, followed

Griffiths v Bradshaw (No 2) [2015] QSC 194, followed

Re: De Pasquale Bros P/L & NJF Holdings P/L [2000] QSC 4, followed

Property Law Act 1974 (Qld), s 180

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 681

COUNSEL:

M S Trim for the applicant

K W Wylie for the respondent

SOLICITORS:

Mills Oakley for the applicant

Ellison Moschella & Co for the respondent

  1. [1]
    On 1 April 2022 Justice Kelly made orders by consent as follows:

“1.  The applicant, and J Hutchinson Pty. Ltd. trading as Hutchinson Builders and RB Scaffolding Pty Ltd be given a licence and rights to access in connection with the property of the Respondent at 537 South Pine Road, Everton Park, Queensland in accordance with Schedule 1 & 2 to this application.

  1. 2.
    The Applicant shall pay the Respondent the sum of $15,000 for the licence and rights.
  1. 3.
    The proceeding otherwise be adjourned to a date to be fixed for argument as to costs.

  1. 6.
    By 14 April 2022, if either party seeks costs in this proceeding (excluding previous costs orders) it is to file and serve any further Affidavits it seeks to rely on in relation to costs and written submissions regarding costs including orders sought, the basis for those orders, reference to affidavits it proposes to rely upon in support of its application, and any authorities or legislative provisions upon which it seeks to rely.
  1. 7.
    By 28 April 2022, the parties to the proceeding are to file and serve any affidavit material and submissions in reply to the other party’s cost submissions and evidence.”
  1. [2]
    This matter was listed for hearing in the civil list on 14 July 2022.  The matter was originally listed for a half day hearing but ultimately went for just under one day.
  2. [3]
    There are two applications for determination by the Court.  The applicant seeks an order that the respondent pay the applicant’s costs of the proceedings, to be agreed or assessed on the standard basis.  The applicant makes the application on the basis that there are “special circumstances” for the purposes of s 180(6) of the Property Law Act 1974 (Qld) (Property Law Act) which justify the making of such an order.
  3. [4]
    Also, the respondent seeks an order that the applicant pay the respondent’s costs of the proceedings up to the date of filing the applicant’s reply material on 28 March 2022 pursuant to s 180(5)(e) of the Property Law Act.
  4. [5]
    Both parties referred to the affidavit material which had been filed in support of the substantive application in support of the arguments advanced in relation to costs.
  5. [6]
    The originating application filed on 27 January 2022 sought orders pursuant to s 180 of the Property Law Act for a licence and rights to access property of the respondent at 537 South Pine Road, Everton Park, Queensland.
  6. [7]
    Section 180 of the Property Law Act deals with the imposition of statutory rights of user in respect of land and relevantly states as follows:

180 Imposition of statutory rights of user in respect of land

  1. (1)
    Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land, should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order.”
  1. [8]
    The statutory right of user imposed under s 180(1) may take the form of an easement, licence or otherwise.  Section 180(2) also provides that it may be exercisable by conditions specified in the order including on one or more occasions, until a certain date or in perpetuity or for some fixed period.  It may also be declared who is able to exercise the right and the manner and conditions of the exercise.
  2. [9]
    Section 180(3) states:

“An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that—

  1. (a)
    it is consistent with the public interest that the dominant land should be used in the manner proposed; and
  1. (b)
    the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and
  1. (c)
    either—
  1. (i)
    the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner’s refusal is in all the circumstances unreasonable; or
  1. (ii)
    no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.”
  1. [10]
    Section 180(4) sets out what an order may include.
  2. [11]
    Section 180(5) deals with the Court’s power and includes in subsection (5)(e) that the Court may make orders in respect of the costs of any of the preceding matters and of proceedings generally.
  3. [12]
    Also relevantly, s 180(6) states:

“In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner.”

  1. [13]
    Generally, s 180 of the Property Law Act gives the Court power to interfere with the private rights of owners where the conditions set out in the section are met and to impose liabilities upon those rights.  Without this statutory power there would be no ability to achieve this.
  2. [14]
    Prior to the originating application being filed on 27 January 2022, there was considerable correspondence between the applicant and the respondent in respect of the access sought.  This included draft terms for access.  There were also meetings in person to discuss the access requirements.
  3. [15]
    The applicant owned land neighbouring the respondent’s land and had a building approval to construct a new building on the land at 535 South Pine Road, Everton Park.  The applicant had also entered into a building contract for the construction work to be undertaken.  Limited access rights to the respondent’s property were sought to enable temporary scaffolding to be erected so that the construction of the building could be undertaken.
  4. [16]
    Prior to the commencement of the Court proceedings, it appears from the material in respect of the various dealings between the applicant and the respondent that it was not clear precisely why the scaffolding was required, the impact of the scaffolding on the respondent’s land and precisely where the scaffolding would be located.  This last point is particularly evident from a marked-up copy of draft terms of access which the respondent returned to the applicant just prior to the commencement of proceedings.[1]
  5. [17]
    The applicant contends that it was clear on the material and from discussions to that point that the applicant was seeking access to erect scaffolding in both the car park area and also along what is described as the laneway.  That is the full length of the property boundary.  The respondent marked-up the draft terms of access and returned it to the applicant highlighting that it understood that the scaffolding was only to be erected in relation to the car park area.[2]
  6. [18]
    As the applicant and respondent were unable to agree on terms of access and the applicant was faced with a pressing need for the issue to be resolved so that the construction contractor could undertake the work, the Court proceedings were commenced.
  7. [19]
    The matter first came before the Court on 8 February 2022 in the applications list when I made orders listing the matter for a one day hearing in March 2022 and also, directions for the filing and serving of affidavit material and submissions by the applicant and the respondent.
  8. [20]
    On 16 March 2022 Justice Martin varied the previous orders extending the timetable for various steps and adjourning the hearing of the matter to 1 April 2022.  A specific costs order was made in respect of the adjournment of the hearing date on the basis that the respondent pay the applicant’s costs of the application to adjourn the hearing and costs thrown away by reason of the adjournment to be agreed or assessed on a standard basis.
  9. [21]
    As required by the directions, the applicant filed and served the affidavit material and written submissions.  The respondent then filed and served its affidavit material and also written submissions.  The applicant filed and served affidavit material in reply and further written submissions.
  10. [22]
    It is submitted that by the provision of the applicant’s reply material, the further information clarified the issues that had earlier been unclear to the respondent.
  11. [23]
    In particular, it is submitted that a particular three dimensional drawing which was provided as part of that reply material satisfied the respondent as to the impact on the respondent’s land.  It is submitted that until that point, it was not clear to the respondent the practical impact of the scaffolding being both over the car park area and also the laneway.
  12. [24]
    I also note that the respondent’s affidavit material identified that the respondent had a particular concern about the impact on the respondent’s land due to lease obligations including requiring the granting of access to facilities that were to be accessed by the tenants in the laneway area.
  13. [25]
    Ultimately, the orders were agreed resolving the access issue.  The form of orders made on 1 April 2022 are in a different form to that sought in the originating application.
  14. [26]
    The applicant submits that the 1 April 2022 order reflects an outcome that it sought from the beginning; that is:
    1. (a)
      limited access to the respondent’s property in order to partially shut the respondent’s car park for two five day periods while scaffolding was erected and dismantled; and
    2. (b)
      to allow the scaffold to encroach into the air space by the southern boundary of the property by approximately two metres while work building the premises on the applicant’s adjoining land was finalised.
  15. [27]
    The respondent submits that the level of detail and precision in the terms of the order made on 1 April 2022 was different from that contained in the originating application.
  16. [28]
    In particular, the definition of “access area” was amended and an additional definition of “volumetric easement area” was added.  Further, the Schedule containing the terms of access also includes assurances which go beyond what was originally included.  The diagram at Schedule 2 which shows the access area was also revised from that provided with the originating application.
  17. [29]
    The Schedule attached to the originating application showed red shading in respect of the access area.  This appeared to be the car park area only and not the laneway area along the entire length of the respondent’s land.  The revised diagram in Schedule 2 makes this clear and removes the previous ambiguity.
  18. [30]
    The parties accept that the ultimate order was appropriate to be made pursuant to s 180 of the Property Law Act.
  19. [31]
    The submissions do raise whether the issues in dispute could have been resolved without the need to institute these proceedings.
  20. [32]
    Further, submissions have been made as to whether the respondent’s concerns had been met in the original material even though the respondent may not have fully understood or appreciated that position.  The respondent did have the benefit of assistance from an expert and it is submitted by the applicant that an expert who had been fully briefed with the relevant plans and diagrams would have understood how they were to be interpreted.
  21. [33]
    Section 180 of the Property Law Act provides a mechanism by which a dispute of this nature can be brought before the Court to have the issue of access determined.  In circumstances where the refusal is said to be unreasonable, it is likely that that requirement will be satisfied where it becomes extremely unlikely that any further negotiations will produce an agreement within the reasonably foreseeable future.
  22. [34]
    That is really what occurred here.  Given the time pressures to have the matter resolved to enable the construction work to be undertaken so that penalties were not imposed under the construction contract, the applicant took steps to bring the matter before the Court to have the issue determined.
  23. [35]
    Further, as envisaged by s 180(5)(d), the Court gave directions for the conduct of the proceedings.  The directions in relation to the delivery of material on a staggered basis enabled both parties to put forward their material in support or defence of the application and for there to be a direct traverse of the real issues in dispute.
  24. [36]
    Ultimately, as often happens with contentious matters, the delivery of the material clarified issues in dispute and ultimately the orders for access were able to be made by consent.
  25. [37]
    The only outstanding issue is in relation to costs.  It is appropriate to consider relevant authorities in respect of costs orders involving applications pursuant to s 180 of the Property Law Act.
  26. [38]
    In the matter of Re: De Pasquale Bros P/L & NJF Holdings P/L,[3] Chesterman J considered the meaning of “special circumstances” in a respect of an application for the award of costs against a servient owner under s 180(6) of the Property Law Act.  In that matter, the trial had commenced and after a number of days a compromise was reached in respect of the relevant part of the application.  The issue of costs remained unresolved.  His Honour relevantly states:

“[9] A pre-condition to an order imposing a right of user is that the owner of the land to be affected unreasonably refuses to benefit the applicant’s land. In addition, the section contemplates that an order for costs against the respondent to the application, the owner of the affected land, is not to be made except in special circumstances. The terms of the section suggest that an unreasonable refusal to allow land to be used is not enough to justify an order for costs. Something more is needed. However, the generality of the language of sub-section (6) suggests that the respondent’s conduct which amounts to an unreasonable refusal may be of such a character as to constitute a “special circumstance”.

  1. [11]
    It is at once apparent that there are features which distinguish the application from the typical situation for which s 180 was enacted. The norm is a case where a land owner seeks to impose an easement or licence on neighbouring land in order to better enjoy his own. A burden is imposed upon the other land which will often, if not usually, be indefinite in duration. The burden imposed will diminish the extent to which the servient owner can enjoy his own land.
  1. [12]
    These features are missing from the present application. The right of entry to inspect the building and the insertion of the measuring devices would have been of limited duration. Moreover, the order was sought for the protection of the NJF building not as a means of increasing De Pasquale’s enjoyment of his own land. Thirdly, the imposition of the conditions would not have diminished NJF’s ability to enjoy its own property.
  1. [13]
    Individually and collectively these three factors are circumstances which are “special” in the context of an application under s 180 of the Property Law Act. They may not, by themselves, be of sufficient importance to justify an order for costs against NJF, but there are other circumstances which make that order appropriate.”
  1. [39]
    His Honour considered the correspondence between the parties and also the basis for resisting the order to pay costs.  In that case, the respondent sought to resist the order for costs on the basis that the applicant would not have obtained relief pursuant to s 180 of the Property Law Act:  that is the refusal was not unreasonable.  His Honour did not accept that premise.
  2. [40]
    The applicant points to and relies upon the additional comments of his Honour at paragraph 34 of the reasons where his Honour states:

“But the time to test its likely outcome is mid 1999 when it and the action came on for trial. By this time some engineering and geotechnical issues had been clarified and refined.”

  1. [41]
    The applicant relies on this comment in support of its application for costs.  That is, the relevant time to consider the likely success of the application was the time that the reply material was filed.  The fact that there was some “clarification and refinement” of the material after the originating application is not unusual.
  2. [42]
    The decision of Justice Davis in Body Corporate for Torwood Hill Residential Retreat CTS 24557 v Fittell[4] is also of some assistance in considering the issue of the appropriate costs order.  That case concerned an application by a body corporate of a unit block for orders allowing its contractors to access the respondent’s land to rectify a retaining wall sitting on a common boundary between the two properties.  The parties ultimately agreed a form of order allowing access which is set out in full in his Honour’s reasons.  The Court was required to determine the issue of costs.
  3. [43]
    Justice Davis relevantly stated:

“[17] Section 180(6) ousts the ‘general rule’ enshrined in r 681 of Uniform Civil Procedure Rules 1999 that costs follow the event. … the fact that [the applicant] obtained relief of a kind sought in the application is not sufficient by itself to justify a costs order against [the respondent]. The [applicant] must show “special circumstances” to secure such an order.

  1. [18]
    Re De Pasquale Bros Pty Ltd v NJF Holdings Pty Ltd[5] is a case where Chesterman J (as his Honour then was) held that special circumstances existed and ordered costs against a respondent to an application under s 180. De Pasquale bears some factual resemblance to the current case in that the applicant there, like [the applicant] here, brought the application not to enhance its land but to protect it. However, comparison of the facts in cases where “special circumstances” have been found or not found is unlikely to be of assistance.
  1. [19]
    Of importance and assistance though, is his Honour’s analysis of s 180. His Honour observed that s 180 only vests jurisdiction in the court to make orders where the owner’s refusal to accept the obligations sought to be imposed upon the land “is in all the circumstances unreasonable”.[6] His Honour reasoned that because s 180(6) requires ‘special circumstances’ before a costs order is made against a respondent, it must follow that unreasonable refusal is not sufficient itself to engage the jurisdiction to award costs against a respondent. However, his Honour observed ‘… the respondent’s conduct which amounts to an unreasonable refusal may be of such a character as to constitute a ‘special circumstance’”.[7] I accept and follow his Honour’s reasoning.
  1. [20]
    [Counsel for the respondent] submitted that the usual order is that a respondent to a s 180 application ought be favoured with a costs order. Section 180 though says nothing about the circumstances under which a respondent should recover costs against an applicant. Where, unlike this case, an order has been secured against a respondent other than by consent, a finding must be made that the respondent unreasonably refused the applicant’s request to burden the land with the obligation before the jurisdiction to make an order is triggered. There cannot be a presumption in favour of granting costs to a party who has acted unreasonably.
  1. [21]
    However, on any application under s 180 of the Property Law Act, an applicant seeks orders interfering with proprietary rights vested in the land owner.[8] The respondent to an application under s 180 is entitled to argue for the imposition of conditions under s 180(4) and the reasonableness or otherwise of the stance which a respondent adopts on that issue must be relevant to the question of costs of the application.”
  1. [44]
    It is clear from a review of all the material filed in relation to this matter that the applicant thought it was clear what it was asking for and the respondent remained uncertain as to why the access requested was required and the impact of the scaffolding on the respondent’s land.
  2. [45]
    The respondent had a legitimate interest in understanding the impact on its land, particularly in circumstances where it had obligations to tenants under the lease of the buildings on the respondent’s land.
  3. [46]
    Further, whilst the applicant says that the relevant information was contained in numerous drawings provided prior to the commencement of the proceedings, a perusal of the schematic diagrams does not clearly show the precise impact on the car park area and the laneway area of the respondent’s land.  Further, given the inconsistency between various descriptions and the marked up diagram attached to earlier versions of the access terms and the originating application, there was some ambiguity as to whether the access was sought over both the car park area and the laneway area.
  4. [47]
    The erection of the scaffolding for the period, whilst limited in duration, would have an impact upon the respondent’s enjoyment of the property and potentially upon its obligations to its tenants.  Given those circumstances, it was understandable that the respondent sought a clear understanding of the precise nature of the access sought and the impact from a practical perspective.  This included the potential impact of the scaffolding on the car parking areas and also the access by persons to the laneway area.
  5. [48]
    Whilst the negotiations had proceeded for some time, these issues were not ultimately clarified until the delivery of the reply material.  The respondent points to the three-dimensional drawings at page 22 to 25 of exhibit CSW-2 to the affidavit of Callan William Sipthorp filed 28 March 2022 as finally clarifying this issue.  Further, these specific drawings were incorporated into the definition of volumetric easement area which were ultimately part of the terms of access attached to the orders dated 1 April 2022.
  6. [49]
    The applicant contends that the long history of negotiations between the parties, including Mr Farmer on behalf of the respondent not raising any concerns or seeking any further information at various points in time, supports the existence of “special circumstances” to justify a costs order in its favour.
  7. [50]
    Generally, the applicant submits that the Court has jurisdiction to make an order in respect of the costs of the proceedings by virtue of s 180(5)(e) of the Property Law Act and also r 681 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  The applicant contends that it has been the successful party and has obtained the orders it sought.  Further, the applicant acknowledges that the normal rule that costs follow the event is dislodged by s 180(6) of the Property Law Act.
  8. [51]
    In favour of a finding of special circumstances, the applicant contends that each of the matters identified by Justice Chesterman in Re: De Pasquale Bros P/L & NJF Holdings P/L is present here.  That is:
    1. (a)
      a right of entry was of limited duration;
    2. (b)
      the fact that the imposition of conditions would not have diminished the respondent’s enjoyment of the land;
    3. (c)
      the abandoning of grounds for resisting the application; and
    4. (d)
      an ulterior purpose for the refusal.
  9. [52]
    It appears that the ulterior purpose referred to by the applicant was that the respondent had been seeking, at earlier points in the negotiations, to also settle a claim in respect of damage to the property.  This was ultimately not pursued as part of the Court proceedings.  I do not consider that matter is relevant to the current considerations.
  10. [53]
    As to the submission that the respondent abandoned the grounds for resisting the application, I also do not consider that the current factual circumstances establish that proposition.
  11. [54]
    The respondent upon receiving the reply material had its concerns satisfied and acted appropriately under the obligation in r 5 of the UCPR.  As the concerns had been met, it was appropriate for the respondent to, at that stage, acknowledge that its concerns could be adequately addressed in the appropriately worded consent orders and revised access terms and avoid the need for the matter to proceed to a hearing.
  12. [55]
    Further, in relation to whether the imposition of conditions diminished the respondent’s enjoyment of the land, there was some impact on the land and also potential impacts on the respondent’s obligations under the lease agreements.  To say that there was no diminution in the enjoyment of the land is not entirely accurate.
  13. [56]
    I consider that at least from the respondent’s point of view there existed an ambiguity in the relief sought and that it was understandable that further information was sought to clarify the impact on the car park area and the laneway area.
  14. [57]
    Whilst the applicant was successful in obtaining the relief sought, there was a refinement of the precise terms of the access.  The terms of access also included assurances.
  15. [58]
    Further, whilst the applicant was ultimately successful in obtaining the relief sought, the respondent also achieved some level of success in having its concerns met by the precision in the definitions and terms of the grant of access.
  16. [59]
    In the circumstances I am not satisfied that the applicant has made out “special circumstances” in order to support an award of costs against the respondent.
  17. [60]
    It remains necessary to consider the respondent’s application in respect of costs being awarded to it up until the filing of the reply material on 28 March 2022.
  18. [61]
    The respondent relies upon s 180(5)(e) to give the Court a power to make a costs order including in circumstances where consent orders are made granting access.  The respondent acknowledges that the order made does grant a right of access to the applicant and to that extent the applicant could be said to be “successful”.
  19. [62]
    However, it is contended that s 180(5)(e) enables the Court, in appropriate circumstances, to order that an applicant pay the respondent’s costs even when the applicant is ultimately successful in respect of an application.  This is supported by the orders made by Davis J in Body Corporate for Torwood Hill Residential Retreat CTS 24557 v Fittell [2020] QSC 32.
  20. [63]
    The respondent also points to the decision of McMurdo J in Griffiths v Bradshaw (No 2)[9] where both parties applied for costs following a contested hearing which resulted in the grant of a statutory right of user.  In that case, his Honour stated:

“The applicant seeks the costs of his proceeding from the respondent. Section 180(6) of the Property Law Act 1974 (Qld) provides that in a case under this section, the court shall not, except in special circumstances, make an order for costs against the servient owner. The applicant submits that there are special circumstances.

The respondent submits that there are no special circumstances warranting an order for costs against her. Further, she submits that the applicant should pay her costs.

The factors which are relevant to each of these submissions are as follows:

  1. (a)
    The respondent’s case, although unsuccessful, was arguable, the case ultimately turning upon questions of degree.
  1. (b)
    The respondent acted honestly.
  1. (c)
    The respondent offered to pay more than $100 000 towards the construction of a new road, in order to avoid this litigation.
  1. (d)
    The respondent did not resist the proceeding in order to secure some financial gain.
  1. (e)
    The case was appropriately conducted by each side at the trial.
  1. (f)
    The respondent permitted the continued use of these roads during the progress of the proceeding.
  1. (g)
    The respondent was motivated to refuse access for reasons which were unrelated to the use of the roads.

Of those factors, all but the last are in the respondent’s favour. As to the last factor, the respondent was motivated by her grievance about the controversy relating to the bore. That may or may not have been a justifiable grievance and the court should not explore it in the present context.

With these matters considered, special circumstances are not established for the imposition of an order for costs against the respondent. However, the applicant has been successful and having conducted its case appropriately, should not have to pay costs. In my conclusion, there should be no order for the costs of the proceeding and there’ll be an order as per that amended draft.”

  1. [64]
    The respondent points to the factors identified by McMurdo J and contends that material factor for determining whether costs ought to be ordered in favour of the respondent is the reasonableness of the respondent’s conduct.
  2. [65]
    The respondent contends that the resistance to the orders sought in the originating application was reasonable, prudent and appropriate.  It submits that the proposed terms of access and the area identified in the Schedule attached to the originating application were defective and vague.  The respondent also points to the applicant’s “disrespectful and bullish conduct in their dealings with the respondent”.
  3. [66]
    The respondent submits that it acted reasonably throughout particularly given that there was insufficient evidence to support the originating application, particularly “given the fact that [the respondent] was obliged to ensure that its tenancies would not be unduly impacted by the relief sought by the applicant”.
  4. [67]
    The respondent also submits that it acted reasonably as evidenced by its change of position upon receipt of the material of the applicant in reply.
  5. [68]
    I accept that the respondent’s position was arguable given the concerns of the respondent about the impact on its tenancies.
  6. [69]
    For anybody attempting to read the schematic diagrams (even for persons with some experience in interpreting schematic diagrams) at least some of the schematic diagrams provided were not clear as to the precise impact on the car park area and the laneway area of the respondent’s land.  In particular, there was some ambiguity as to the impact on vehicles using the car parks underneath the scaffolding and also for access to the storage facilities and other amenities in the laneway area.
  7. [70]
    However, I am not satisfied that at the time that the originating application was filed that any shortcoming in the applicant’s material meant that the applicant would be unsuccessful in its application pursuant to s 180 of the Property Law Act.
  8. [71]
    The Court proceedings were commenced after a protracted period of negotiations where an agreement could not be reached and by then time was of the essence in relation to the construction contract.
  9. [72]
    There was a significant level of detail in the applicant’s material and had the matter proceeded to a contested hearing, it may have been that the trial judge could have been satisfied on that material that the relevant statutory requirements had been met.
  10. [73]
    However, I consider that the nature of the issues are not of such a nature as to justify the making of a costs order in favour of the respondent.  This is also in circumstances where on the evidence, the respondent did not clearly articulate the concerns it had with the material provided when given the opportunity to do so.  There were several opportunities in the negotiations prior to the commencement of proceedings when these issues could have been clearly ventilated and were not, or alternatively, were not done in such a way as to convey to the applicant the precise matters requiring further clarification.
  11. [74]
    Both parties missed opportunities at earlier points in time to address some of these issues.  Unfortunately, a level of miscommunication persisted for a considerable period of time through the negotiations that could have been rectified with clear communication and engagement.
  12. [75]
    Ultimately, the applicant needed to commence the Court proceedings in order to facilitate the making of orders granting a right of access to enable it to undertake the approved building work.  Section 180 operated as intended.
  13. [76]
    The directions made by this Court for the exchange of material also enabled the relevant information to be provided so that the proceeding could be dealt in the most efficient and expeditious way possible.  This is evidenced by the delivery of the respondent’s material which clearly identified the areas of concern of the respondent and also the applicant’s reply material which addressed those concerns to a satisfactory level.
  14. [77]
    Where an application is made under s 180 of the Property Law Act and the applicant is successful in obtaining an order, generally[10] the applicant is not awarded the costs of successfully obtaining the orders.  There may be some circumstances where the applicant is required to pay the respondent’s costs.
  15. [78]
    However, where there has been the need to commence the proceedings, it would not be the automatic outcome that a respondent would have its costs paid where ultimately there has been an “unreasonable” refusal to agree to the terms sought which found the basis for making the order.  Here, the process operated as intended and ultimately the issues in dispute were resolved so that a consent order could be made.
  16. [79]
    In the circumstances and balancing the various relevant factors, I consider that the appropriate order is that there be no order for costs of the proceeding.  Accordingly, the order of the Court is that:
  1. The applicant’s application for costs is dismissed.
  2. The respondent’s application for costs is dismissed.
  3. There be no order as to costs.

Footnotes

[1]Affidavit of Jason William Blair sworn 25 January 2022, Exhibit JWB-19.

[2]Affidavit of Jason William Blair sworn 25 January 2022, Exhibit JWB-19, Schedule 2.

[3][2000] QSC 4.

[4][2020] QSC 32.

[5][2000] QSC 4.

[6]Section 180(3)(c).

[7]At [9].

[8]Lang Parade Pty Ltd v Peluso & Ors [2006] 1 Qd R 42 at [23], Ex parte Edward Street Properties Pty Ltd [1977] Qd R 86 at 91, Lambert Property Group Pty Ltd v Body Corporate for Castlebar Cove [2015] QSC 179 at [132] and 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews [2016] QSC 40 at [39]-[42].

[9][2015] QSC 194.

[10]Except in special circumstances.

Close

Editorial Notes

  • Published Case Name:

    Enhance Property Investments No 3 Pty Ltd v Pier Traders Pty Ltd

  • Shortened Case Name:

    Enhance Property Investments No 3 Pty Ltd v Pier Traders Pty Ltd

  • MNC:

    [2022] QSC 160

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    03 Aug 2022

Appeal Status

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

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