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Mount Cathay Pty Ltd & Anor v The Trust Company Ltd & Anor[2023] QSC 102

Mount Cathay Pty Ltd & Anor v The Trust Company Ltd & Anor[2023] QSC 102

SUPREME COURT OF QUEENSLAND

CITATION:

Mount Cathay Pty Ltd & Anor v The Trust Company Ltd & Anor [2023] QSC 102

PARTIES:

MOUNT CATHAY PTY LTD

ACN 010 482 461

(first plaintiff)

ILIFE FACTORY PTY LTD

ACN 101 777 182

(second plaintiff)

v

THE TRUST COMPANY LTD

ACN 004 027 749

(first defendant)

BUILDCORP GROUP PTY LTD

ACN 091 336 168

(second defendant)

FILE NO/S:

BS 11907 of 2020

DIVISION:

Trial Division

PROCEEDING:

Claim

DELIVERED ON:

17 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

2 to 4 May 2023

JUDGE:

Bradley J

ORDER:

  1. The plaintiffs’ claim against the defendants is dismissed.
  2. There be judgment for the defendants against the plaintiffs, with costs.

CATCHWORDS:

GENERALLY – VICARIOUS LIABILITY, NON-DELEGABLE DUTY AND RELATED MATTERS – INDEPENDENT CONTRACTORS – where the first plaintiff was the registered lessee of land – where the first defendant contracted with the second defendant to perform works adjacent to the leased premises – where the second defendant subcontracted to a third party the performance of the works – where the second defendant instructed the third party not to enter or be near the premises – where, in contravention of this direction, the third party entered the premises – whether the defendants were liable for trespass

DAMAGES – GENERALLY – EXEMPLARY, PUNITIVE, AGGRAVATED AND LIKE DAMAGES – EXEMPLARY DAMAGES – where the first plaintiff was the registered lessee of land – where the first defendant contracted with the second defendant to perform works adjacent to the leased premises – where the second defendant subcontracted to a third party the performance of the works – where the first plaintiff had explicitly denied the defendants access to the premises for the performance of the works – where the second defendant had redesigned the works to avoid entering the premises and had instructed the third party not to enter or be near the premises – where, in contravention of this direction, the third party entered the premises – whether the trespass, in the context of the first plaintiff’s explicit refusal of consent to entry, constituted a contumelious disregard for the first plaintiff’s rights – whether the plaintiffs were entitled to exemplary damages for trespass

MISCELLANEOUS TORTS – INTENTIONAL INTERFERENCE WITH CONTRACT – OTHER PARTICULAR CASES – where the first plaintiff was the registered lessee of land – where, by the lease, the first plaintiff was to enjoy access to the leased premises via a particular street in common with all persons lawfully using the same street – where the first defendant contracted with the second defendant to perform works adjacent to the premises – where the first plaintiff alleged that the second defendant or its contractors blocked the driveway from the street into the premises – where a report revealed that only one car was blocked from entering or exiting the driveway over a 14 day period – where the plaintiffs adduced no evidence as to the state of mind of either defendant – whether the defendants were liable for intentional interference with contractual relations

Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36; [1957] HCA 26, applied

Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105, cited

Sharrod v London & North Western Railway Co (1849) 4 Exch 580; 154 ER 1345, cited

Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59, applied

XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; [1985] HCA 12, cited

COUNSEL:

T Matthews KC for the plaintiffs

M Trim for the first defendant

M Doyle for the second defendant

SOLICITORS:

Bridge Brideaux for the plaintiffs

Herbert Smith Freehills for the first defendant

Russells for the second defendant

  1. [1]
    The first plaintiff (Mount Cathay) and the second plaintiff (iLife) pursued to trial two claims against the first defendant (TCL) and the second defendant (Buildcorp).  The first claim was for damages for alleged trespass by entering or leaving equipment on land (the Tenement) Mount Cathay held as tenant under a registered lease (Lease J).[1]  The second claim was for damages for alleged intentional interference with contractual relations by restricting or hindering access to the Tenement in a way that breached a lessor’s covenant in Lease J.
  2. [2]
    The plaintiffs also sought permanent injunctions restraining the defendants from entering on the Tenement, or obstructing or impeding access to it, without Mount Cathay’s consent.  At the trial, only the second injunction was pressed.

Lease Plan

  1. [3]
    The Tenement is delineated on a plan for lease purposes (Lease Plan) in the second schedule to Lease J (reproduced below).[2]

Mount Cathay Pty Ltd & Anor v The Trust Company Ltd & Anor [2023] QSC 102

  1. [4]
    The Lease Plan was drawn by consulting surveyors.  It seems to be dated July 1984.  The tendered copy appears to be affected by “generation loss”, likely a result of reproduction of a series of copies from copies.  The survey markings, directional angles, and distances on the tendered copy of the Lease Plan are not legible, and the 1:400 scale is not usable, due to the degraded state of the image.  The tendered copy of the Lease Plan shows that the Tenement has a frontage to Overells Lane.[3]
  2. [5]
    The Tenement occupies 598m2 in a corner of Lot 40 on registered plan 134580 (Lot 40).  On the Lease Plan, Lot 40 extends from Constance Street to Brunswick Street.  It also has a frontage to Alden Street, and the small frontage to Overells Lane.  The parties agree Lot 40 includes the platforms of the Fortitude Valley Railway Station and the land corridor between Constance Street and Brunswick Street through which the railway lines run.
  3. [6]
    Within the boundaries in the Lease Plan, the Tenement is the land below the reference level for 11.04m above mean sea level.[4]

Sketch Plan

  1. [7]
    The plaintiffs also tendered a copy of a sketch plan or identification survey of the Tenement (Sketch Plan).  It is dated 25 March 2014.  The Sketch Plan is more legible than the Lease Plan.  The measurements of the boundaries of the Tenement are legible, as are some of the angles.  The corner reference points for the Tenement boundaries are illegible.

Other evidence about the Tenement

  1. [8]
    Stephen Quadrio, a former solicitor for the plaintiffs, drove his car to the Tenement on up to four occasions.  He did so by entering the Valley Metro shopping centre building (Valley Metro) from Alden Street and driving over a concrete surface between carparks and a loading dock near Alden Street (Alden St Loading Dock).  He said the Tenement comprised an area of “dark ground, not concrete” underneath part of the Valley Metro.
  2. [9]
    Mr Quadrio understood the Tenement to be bounded by the back wall of a building on Wickham Street.  This accords with the south-east boundary of the Tenement marked on the Lease Plan.  It is 28.356m long on the Sketch Plan.  He said in the “corner” beyond that back wall, there is a “gate” or a “turnstile” along part of Overells Lane.  The frontage to Overells Lane is shown on the Lease Plan.  It is 7.254m long on the Sketch Plan.  Mr Quadrio understood another boundary to be somewhere before the platforms and train lines for the Fortitude Valley Railway Station.  This accords with the north-west boundary on the Lease Plan.  On the Sketch Plan, this boundary has two differently angled sections, the first 4.38m and the second 24.635m in length.  The reference marks for this boundary are illegible in the Lease Plan and the Sketch Plan.
  3. [10]
    Mount Cathay owns land on Brunswick Street (Lots 1, 2, 5, and 7).[5]  On the Lease Plan and the Sketch Plan, Lot 1 and Lot 7 adjoin Lot 40.  They have a contiguous boundary with Lease J, and form part of the south-western boundary of the Tenement. On the Sketch Plan, this boundary is 25.07m in length.  There is a loading dock at the rear of the basement level of the building on Lot 7 (the Lot 7 Loading Dock).  TCL admitted vehicular access to Lot 7 is available only from Alden Street via Lot 40 and the Tenement, and that the Lot 7 Loading Dock can only be used by trucks and other vehicles that stand within the Tenement.  At the trial, Buildcorp admitted the Lot 7 Loading Dock is accessible via Alden Street, Lot 40, and the Tenement.
  4. [11]
    Neither defendant admitted that vehicular access to the Tenement is available only from Alden Street through part of Lot 40.  The plaintiffs called no evidence about it.  They submitted it would be “apparent from an inspection of the site”.  There was a view on the first day of the trial.  However, it cannot take the place of evidence.[6]  The 7.254m frontage to Overells Lane and Mr Quadrio’s evidence of a gate or turnstile from the Tenement at this point, prevent an inference that vehicular access to the Tenement is confined to Alden Street.

Survey Plan

  1. [12]
    Mr Quadrio and Mr Reece, a project manager for Buildcorp, described a concrete slab structure high above the ground in the Tenement area and above much of the balance of Lot 40.  This structure is the floor or deck of the plaza level of the Valley Metro.  It is supported by beams across structural columns.  The columns rise in rows from the ground level.
  2. [13]
    Witnesses gave varying evidence about the number and alignment of the columns.  It is possible to understand their evidence more consistently by reference to a lower ground detail survey plan (Survey Plan), dated 15 August 2019, reproduced below.

Mount Cathay Pty Ltd & Anor v The Trust Company Ltd & Anor [2023] QSC 102

  1. [14]
    The Survey Plan was prepared for Buildcorp by a firm of engineering and project surveyors.  Markings were added to show the approximate boundaries of the Tenement.  The Survey Plan depicts the whole of the Tenement, but only part of Lot 40.  It does not extend as far as the frontage to Alden Street.
  2. [15]
    The Survey Plan marks four rows of columns: two in the first row; six in the second; nine in the third; and seven in the fourth.  There is a wide gap between the third and fourth rows.  There are two more columns marked on parallel dotted lines drawn from the last two columns in the third row.  These are near Alden Street and are not aligned with any other columns.
  3. [16]
    The approximate Tenement boundaries marked on the Survey Plan accord generally with those shown on the Lease Plan and Sketch Plan.  Within the Tenement are the two columns in the first row, the six columns in the second row, and seven of the nine columns in the third row.  The boundary is drawn to the centre of the sixth and seventh columns in the third row, turning at each centre point. So, three-quarters of the sixth column and one quarter of the seventh column lie within the Tenement.  In the fourth row, the first six columns are within the Tenement, but only half of the seventh column is, with the boundary passing through its centre.  The other two columns are outside the Tenement.
  4. [17]
    The Survey Plan shows a 200mm concrete wall (concrete wall) and a 190mm block wall (block wall), which run along the outside edge of the Fortitude Valley Railway Station platform.[7]  The Survey Plan also shows two shorter walls of unidentified construction, well away from the concrete wall and the block wall.  All the walls shown in the Survey Plan are outside the Tenement.
  5. [18]
    There is no evidence that any permanent physical barrier marked the boundary between the Tenement and the balance of Lot 40 along the railway station platform side (the north-west) or the side towards the Alden Street access (the north-east).  Using the Survey Plan, Mr Reece said the concrete wall “comes hard up to the Lease J area”.  This is shown at about the second column in the first row.  Between the concrete wall and the block wall is a gap.  Mr Reece called it the “QR signal box opening”.[8]  The Tenement boundary seems to continue from there in a line to the sixth column in the second row, touching the outer edge of that column nearest the railway, and continuing to the surveyor’s pin identified by Mr Reece.  See [22] below.  There is a space between this boundary and the block wall.  The gap tapers towards the QR signal box opening.  The surveyor’s pin and centre points of the seventh and sixth columns in the third row serve as reference points for part of the boundary on the north-east side of the Tenement.
  6. [19]
    On the Lease Plan, the north-east boundary of the Tenement closest to Alden Street has a rectangular incised area.  On the Sketch Plan, this area is 4.877m deep and 8.058m wide.
  7. [20]
    The Survey Plan notes ground levels across the Tenement and the adjacent part of Lot 40.  These range from about 5.845m to about 6.148m above sea level.  It also notes the level of the underside of a beam above the Tenement area supporting the plaza deck.  It is 12.669m above sea level.[9]

Schedule B and exhibit 19

  1. [21]
    Schedule B to the further amended statement of claim is an unscaled plan drawing of the land bounded by Alfred Street, Constance Street, Wickham Street, and Brunswick Street.  The defendants admit it is a plan “at basement level” of Lot 40, Lot 1 and Lot 7, the Tenement, and the “access route” from Alden Street to Lot 40, the Tenement, Lot 7, and the Lot 7 Loading Dock.
  2. [22]
    Exhibit 19 is a copy of schedule B on which Mr Reece marked two columns.  He said, “when we had the surveyor undertake their works, those two columns gave a reference of where the lease line was turning”.  The two columns correspond to the sixth and seventh columns in the third row on the Survey Plan.  Mr Reece also marked the northern most corner of the Tenement on exhibit 19.  He said at this point there is a surveyor’s pin in the ground.  He understood the boundary of the Tenement ran between the surveyor’s pin to the nearest column, which corresponded to the seventh column in the third row.

The registered interests in the Tenement

  1. [23]
    Queensland Rail Ltd (QR) is the successor in title of the Commissioner for Railways, who leased the Tenement to the original tenant.[10]  Mount Cathay is the registered lessee of the Tenement under Lease J.[11]

The interest of iLife

  1. [24]
    The plaintiffs alleged that Mount Cathay leased Lots 1, 2, 5, and 7 to iLife.  They also alleged that Mount Cathay has leased the ground floor of the building on Lot 2 and part of Lot 5 to iLife on a monthly tenancy since 1 July 2003.  The defendants did not admit these allegations.  Mr Liu, a director of iLife, gave no evidence that iLife held any estate or interest in Lots 1, 2, 5, or 7.  The plaintiffs did not otherwise prove any interest.  I do not find that iLife was the sub-lessee of any part of Lots 1, 2, 5 or 7.
  2. [25]
    Without an estate or interest in the Tenement, iLife cannot establish its cause of action against the defendants as trespassers on the Tenement.[12]  The plaintiffs did not prove that iLife had or has any contractual right of access from Lot 7 (or from the Tenement) to Alden Street.  Each claim by iLife against the defendants should be dismissed. The remaining claims by Mount Cathay are considered below.

The trespass claim

  1. [26]
    The plaintiffs allege Buildcorp workers entered the Tenement on 21 August 2020 and on 24 August 2020.  They also allege Buildcorp (or contractors acting on behalf of Buildcorp) trespassed on the Tenement between 28 September and 18 October 2020.
  2. [27]
    The plaintiffs adduced the following evidence in support of the trespass claim.

Mr Liu’s evidence

  1. [28]
    Mr Liu saw some workers near a piece of equipment variously described as a scissor lift or an elevated work platform (EWP) at about 9.30 am or 10.00 am on 21 August 2020.  He saw one worker walk along both sides of three columns.  The plaintiffs tendered seven photographs taken by Mr Liu on his iPhone between 12.56 pm and 12.57 pm on 21 August 2020.  These show an EWP next to the end of the block wall and across part of a metal gate or fence at the QR signal box gap.  Mr Liu did not observe any workers in the area when he took the photographs, and no worker appears in the photographs.
  2. [29]
    Mr Liu returned to the area on 24 August 2020 at about 10.00 am.  He did not observe any activity.  He took three more photographs on his iPhone.  These were tendered.  They show a section of the block wall, away from the end shown in the previous photographs.  No workers or equipment are visible.
  3. [30]
    On each occasion, Mr Liu had driven from Alden Street, across the driveway to the Tenement, where he parked his vehicle.  He said there was no one else with him at these times.  Mr Liu took further photographs on 7 September 2020.  None shows any person, equipment, or temporary fencing in the Tenement area.

CCTV footage

  1. [31]
    The plaintiffs tendered CCTV footage recorded by QR on 21 and 24 August 2020.  The Tenement area is not shown.  The footage shows six occasions on 21 August when one or more workers walked past one of the columns, which appears to be the seventh column in the third row on the Survey Plan.  The occasions range from five seconds to 36 seconds in length, the latter being the only occasion lasting longer than 30 seconds.  On 24 August 2020, it shows 36 such occasions.  These range in length from two seconds to two minutes and one second, the latter being one of five occasions lasting longer than 30 seconds.  On one occasion the workers are carrying a piece of PVC pipe, perhaps four to six metres in length.  It is accepted by Buildcorp that the workers carrying the pipe crossed into the area of the Tenement when they passed out of view of the CCTV camera.  TCL did not make this concession.  On another occasion an EWP is seen being driven to and across a speed bump on the concrete driveway approaching, but not within, the Tenement.

Mr Quadrio’s evidence

  1. [32]
    Mr Quadrio gave evidence that he attended the Tenement at about 9.00 am on a date he could not remember.  He did not recall it was in August 2020.  He saw that a pipe had been “attached to a wall between the lease J area and the railway line.”  Subsequent answers revealed that Mr Quadrio believed the 190mm block wall to be “the boundary between the lease J area and Queensland Rail.”  This is contrary to the Survey Plan and exhibit 19.  No other evidence supports it.  Mr Quadrio saw an EWP parked near the wall.  He also saw a worker walk from “the other side of the columns” from Mr Quadrio, to collect a tool bag from the ground, and take it “back to the other side of the column.”  Mr Quadrio said the “tool bag was on the left of the columns” when he was facing Constance Street.  He appeared to be referring to the columns nearest the block wall in the second row on the Survey Plan.

Conclusions from this evidence

  1. [33]
    The testimony and photographs from Mr Liu and Mr Quadrio do not establish any trespass on the Tenement on any of the alleged dates.  If the scale in the Survey Plan is accurate, the boundary of the Tenement comes within about 80cm of the end of the blockwork wall.  It is not possible to determine if the width of the EWP, shown in Mr Liu’s 21 August 2020 photographs and seen by him and by Mr Quadrio, exceeded 80cm.
  2. [34]
    The CCTV footage shows that workers likely trespassed on the Tenement up to six times on 21 August 2020 and up to 36 times on 24 August 2020.  There is no evidence that they were officers or employees of TCL or Buildcorp.
  3. [35]
    In short, the plaintiffs adduced no direct evidence that TCL or Buildcorp trespassed on the Tenement.

Inferring trespass

  1. [36]
    The plaintiffs asked the Court to infer that the workers observed by Mr Liu and Mr Quadrio, and those shown on the CCTV footage, were workers engaged by APS Plumbing (Qld) Pty Ltd (APS).  For this inference, the plaintiffs relied on the evidence of Mr Reece.

Mr Reece’s evidence

  1. [37]
    According to Mr Reece, Buildcorp engaged APS, Programmed Electrical, and Thor Demolition to undertake certain works on the lower ground level of Valley Metro.  APS’s work included installing three pipes along the block wall: a 300mm PVC stormwater pipe, a trade waste pipe, and a sewerage pipe.  The block wall is indicated on the Survey Plan as being outside the Tenement.  Buildcorp and APS are parties to a major works subcontract, dated 1 April 2020, for work including this work.  In this instrument, TCL is identified as the Principal.  TCL and Buildcorp executed a design and construct contract for works, likely including these works, dated 7 February 2020.
  2. [38]
    According to Mr Reece, before works commenced on the lower ground level, he was directed that “we were not allowed to access lease J.”  Following this direction, Buildcorp undertook several design changes, including a “complete redesign of [the] stormwater drainage”.  Buildcorp engaged a surveying company to ascertain the leases on the lower ground level including Lease J.  This was the Survey Plan.
  3. [39]
    Mr Reece said he gave Paul Serra and Michel Serra from APS, and Brian Dencher from Programmed Electrical, a direction “that the hydraulic works, in particular, had been redesigned to be excluded from lease J and they weren’t to enter lease J.”
  4. [40]
    Mr Reece said he gave a direction to all the Buildcorp employees concerned with the Valley Metro works that “under no circumstances” were they to enter the Tenement, that they “were banned from walking on it”, and “no one was to go on to lease J or be near lease J.”
  5. [41]
    Mr Reece explained that Buildcorp used the two columns on the Survey Plan as markers to say, “Stay away from these columns.  Don’t go any further.”  Mr Reece identified the columns to which he was referring in exhibit 19.  They correspond to the sixth and seventh columns in the third row on the Survey Plan.  He said Buildcorp used one of these (the sixth column) to say that “everyone on the site was told to stay away from that column at all times and never go past it as a physical marker on the site.”
  6. [42]
    Mr Reece said some markings were placed on the ground from the surveyor’s pin and some temporary fencing was erected, including between the sixth and seventh columns in the third row, to encourage compliance by APS with Buildcorp’s direction.  At one point, a length of bunting was put in place between the end of the concrete wall near the QR signal box gap and the sixth column in the second row to represent a “safe path” along the block wall.  He told APS “they couldn’t go on the other side of the bunting.”
  7. [43]
    Mr Reece said he instructed Buildcorp’s own employees and the subcontractors and their employees that they were not to walk straight ahead beyond the speed bump located from the sixth column in the third row, and not to move machinery there.  He agreed in cross-examination that the workers were told, if they approached from Alden Street, they were to “turn right” before the seventh column in the third row, “go across” to the block wall, “and then move up on the western side of those four columns”, which were the third to sixth columns in the second row.
  8. [44]
    Mr Reece said Buildcorp supervised the work of APS by a daily site meeting attended by the Buildcorp site manager and a fortnightly or monthly project meeting, which he attended.  Mr Reece attended also site meetings, about once a fortnight or a month.  He was on site at the Valley Metro about four days a week.  He “directed the teams about the lease J area that reiterated the point, ‘Stay out of it.  There’s no requirement to be in lease J.’”
  9. [45]
    According to Mr Reece, no employee of Buildcorp undertook any of the works on the lower ground level.  All plumbing work was done by APS, all electrical work was done by Programmed Electrical, and all demolition work by Thor Demolition.  He described the “plumbing” or “hydraulic” works in more detail.  It included installing pipes to bring sanitary and trade waste from the suspended concrete slab (or deck) high above the lower ground area, and to bring stormwater from the roof above the suspended slab (or deck), to the lower ground level.  These works commenced in about August 2020.  Mr Reece also said Buildcorp did not have any machinery on the lower ground level for the performance of any of these works.
  10. [46]
    Mr Reece was not challenged about any of this evidence.

Other relevant evidence

  1. [47]
    The temporary structures, some markings on the ground, and bunting are shown in some of the photographs taken by Mr Liu and Mr Quadrio.  The temporary structures are also visible on the CCTV footage.
  2. [48]
    The CCTV footage shows workers moving and positioning equipment within a staging area created by other temporary structures and using that area to enter a work area close to the block wall, where pipes were being installed.  It was not suggested that this staging area or this work area was within the Tenement.
  3. [49]
    Buildcorp tendered photographs taken at 4.29 pm and 4.30 pm on 2 August 2020 showing workers using an elevated platform to work on the three pipes.  The platform and the workers are on the Fortitude Valley Railway Station side of the block wall.  The pipes appear to extend from the underside of the deck above to a position above the wall.  They are supported by cables attached to the underside of beams above the Railway platform.  The photographs do not show any person or machine on the Tenement.

Conclusions from this evidence

  1. [50]
    I accept the evidence of Mr Reece about these matters.  I infer from his evidence, and from the photographs and CCTV footage, that more likely than not the workers observed by Mr Liu and Mr Quadrio, and those who appear in the CCTV footage, are persons engaged by APS or another independent contractor.  There is no evidence that any of those workers was an employee or officer of Buildcorp or TCL.  The plaintiffs put no contrary submission.
  2. [51]
    The plaintiffs adduced no direct evidence that any of the workers seen by Mr Liu or Mr Quadrio or shown in the CCTV footage entered the Tenement.  They invite the Court to infer that the workers shown in the photographs, and in the relevant occasions shown in the CCTV footage, trespassed onto the Tenement.
  3. [52]
    From the evidence of Mr Reece and the CCTV footage, I infer that it is more likely than not that the workers shown on the CCTV footage on 24 August 2020 carrying the length of pipe and those driving the EWP crossed into the Tenement before passing to the work area (outside the Tenement) where the pipes were to be installed along the block wall.  These workers could have avoided crossing into the Tenement by moving a section of the temporary structures outside the Tenement to allow them to carry the pipe and drive the EWP into the staging area and from there to the work area where the pipes were to be installed.  The workers may have acted as observed on the CCTV footage on these occasions to save the time or exertion that might have been involved in moving a section of the temporary structure.
  4. [53]
    I do not infer that the EWP observed and photographed by Mr Liu or Mr Quadrio was located within the Tenement.  Nor am I satisfied that the workers observed by Mr Liu and those observed by Mr Quadrio were within the Tenement or crossed into the Tenement when they were so observed.  The evidence of these witnesses was too vague to justify such findings.

Liability of the defendants for trespass

  1. [54]
    The plaintiffs submitted that each of the defendants was vicariously liable for any trespass committed by APS workers on 21 and 24 August 2020.
  2. [55]
    In Darling Island Stevedoring & Lighterage Co Ltd v Long,[13] Kitto J identified the limited circumstances in which an employer is liable for a trespass by an employee, by reference to the following reasons of Parke B in Sharrod v London & North Western Railway Co:

“The maxim ‘Qui facit per alium facit per se’ renders the master liable for all the negligent acts of the servant in the course of his employment; but that liability does not make the direct act of the servant the direct act of the master.  Trespass will not lie against him; case will, in effect, for employing a careless servant, but not trespass, unless … the act was done ‘by his command’; that is, unless either the particular act which constitutes the trespass is ordered to be done by the principal, or some act which comprises it; or some act which leads by a physical necessity to the act complained of”.[14]

  1. [56]
    The same conclusion was reached in respect of a trespass by an independent contractor in Stoneman v Lyons.[15]  Mason J explained:

“For the purposes of trespass the act of an independent contractor does not become the direct act of the defendant unless he orders to be done the act which constitutes the trespass, some act which comprises that act or some act which leads by physical necessity to the trespass.” [16]

  1. [57]
    There was no evidence that either of the defendants commanded, ordered, authorised, or gave any direction or instruction to APS (or to the workers engaged by APS) that they were to enter upon the Tenement or to do anything necessarily involving entry to the Tenement.  It was not put to Mr Reece that such a command, order, authorisation, direction, or instruction was given.
  2. [58]
    This conclusion is reinforced by the other evidence of Mr Reece, summarised at [37] to [45] above, which was not challenged and which I accept.  His evidence established that Buildcorp took reasonable precautions to prevent its personnel and contractors from entering on the Tenement while performing the plumbing and hydraulic works in the balance of Lot 40.
  3. [59]
    In the circumstances, I do not find that either defendant trespassed on the Tenement by the conduct of the APS (or other) workers on 21 and 24 August 2020.  I reject the plaintiffs’ submission that trespass has been “proved” or that it is assisted by a Jones v Dunkel inference said to arise form a failure of Buildcorp to call the site manager or any person from APS.
  4. [60]
    There was no evidence of any trespass on the Tenement by any person between 28 September and 18 October 2020.

Damages claimed for trespass

  1. [61]
    The plaintiffs’ claimed $825,000.00 damages for trespass “including general, exemplary, aggravated and punitive damages”.  The plaintiffs had refused an earlier request to permit contractors to enter the Tenement to replace and install drainage pipes.  As their counsel put it, any trespass after such a refusal should be severely punished by the Court as a contumelious infringement of the occupier’s legal rights.
  2. [62]
    Having accepted the evidence Mr Reece gave, I am unable to find that either defendant disregarded the rights of Mount Cathay.  On the contrary, I am satisfied that Buildcorp, as the head contractor to TCL, took steps to avoid infringing the rights of the lessee and occupier of the Tenement.
  3. [63]
    There was no evidence of any conscious wrongdoing, contumelious disregard of rights, or other conduct on the part of TCL or Buildcorp that would justify an award of exemplary damages.[17]  Neither defendant acted wantonly, fraudulently, maliciously, violently, or cruelly.  The plaintiffs failed to prove conduct of the kind found in the authority they cited.[18]
  4. [64]
    The plaintiffs adduced no evidence that either suffered any loss or damage by reason of any alleged trespass.  Had they proved any trespass by either defendant, Mount Cathay would have been entitled to nominal damages of, say, $100.00.  Having failed to prove any occupation of, or interest or estate in, the Tenement, iLife would not be entitled to any damages for trespass.
  5. [65]
    For the reasons set out above, the plaintiffs’ trespass claim should be dismissed.

Intentional interference with contractual relations claim

  1. [66]
    By this second claim, Mount Cathay asserted that TCL and Buildcorp engaged in conduct intended to induce QR to do something that the defendants knew would be a breach of QR’s obligations to Mount Cathay under Lease J.
  2. [67]
    The plaintiffs relied on cl 18 of Lease J, by which the lessor and lessee mutually agreed that:

“The lessor shall ensure the right of access to the [Tenement] from Alden Street, Fortitude Valley by the lessee its employees agents sub-lessees invitees and licensees and in common with the rights of all persons from time to time lawfully using or enjoying the use thereof which shall not be restricted or hindered in any matter whatsoever.”

  1. [68]
    By this provision, Mount Cathay has a right of access to Alden Street across part of Lot 40 between the Tenement and Alden Street.  That right is not exclusive.  It is granted to Mount Cathay in common with the rights of all persons from time to time lawfully using or enjoying the use of that access to Alden Street.
  2. [69]
    The plaintiffs alleged that between 5 and 9 September 2020 access to the Tenement was blocked by Buildcorp (or contractors acting on its behalf) by obstructing the entrance to the Tenement via Alden Street.
  3. [70]
    They also alleged that, since Woolworths began to use the Alden St Loading Dock, “there have been daily occurrences of semi-trailers and other vehicles restricting or hindering … Mount Cathay’s right of access” to the Tenement from Alden Street.

Other photographs taken by Mr Liu

  1. [71]
    Mr Liu took 31 photographs on his iPhone on 7 September 2020.
  2. [72]
    These photographs show a path for vehicles across the concrete surface of Lot 40 from Alden Street to the Tenement.  This path is different from the driveway shown in other photographs.  It passes along the block wall (across otherwise marked car parks), rather than between the car parks and the Alden St Loading Dock.
  3. [73]
    The photographs show part of that other driveway and the Alden St Loading Dock cordoned off by temporary fencing.  The temporary fencing creates part of the path from Alden Street to the Tenement. 

The TDC Report

  1. [74]
    Mount Cathay relied on a report produced by Traffic Data & Control (TDC Report).  It recorded each vehicle using the Alden St Loading Dock over a 14-day period from 18 to 31 August 2022.  The arrival time, exit time, duration of stay, and vehicle type were recorded.  The TDC Report recorded a medium rigid truck or a large rigid truck at the Alden St Loading Dock for about 9.9% of the time in this 14-day period.[19]
  2. [75]
    The TDC Report recorded only one occasion on which a car was “blocked from exiting” to Alden Street.  This was for a period of 52 seconds between 9.09.49 am and 9.10.41 am on Sunday 21 August 2022.  This blockage occurred while a large rigid truck was using the Alden St Loading Dock.  The blocked car was not otherwise identified.  There was no evidence it was exiting from the Tenement.

Damages claimed for interference

  1. [76]
    The plaintiffs claimed damages of $31,000.00 for intentional interference with contractual relations.  They sought to rely on a report by Laurie Hamilton of Colliers Valuation & Advisory Services.  Mr Hamilton based his calculations on an assumption about the annual rent payable under Lease J.  An objection to the admission of Mr Hamilton’s report was upheld, as the plaintiffs failed to prove his assumption about the current annual rent.
  2. [77]
    In the circumstances, the plaintiffs adduced no evidence that Mount Cathay suffered a diminution in the value of Lease J, which was the factual finding they sought.

Conclusions on evidence about access

  1. [78]
    The plaintiffs adduced no evidence that access to the Tenement from Alden Street was restricted or hindered at any relevant time.  According to the TDC Report: about 90% of the time there was no medium or large rigid truck at the Alden St Loading Dock; and about 99% of the time no car was blocked from exiting to Alden Street. 
  2. [79]
    I am unable to infer from Mr Liu’s photographs and the TDC Report that access to the Tenement was blocked between 5 and 9 September 2020 or that there were “daily occurrences” that resulted in an “interference” with the plaintiffs’ use of the Tenement.[20]
  3. [80]
    The plaintiffs adduced no admissible evidence of any loss or damage.
  4. [81]
    The plaintiffs adduced no evidence of the intention of either defendant about QR’s compliance with Lease J.  Mr Reece was not questioned about his knowledge of Lease J, or his intention or that of Buildcorp.
  5. [82]
    In the circumstances, the plaintiffs established no case against either defendant that it engaged in any conduct intended to cause QR to breach cl 18 of Lease J.
  6. [83]
    The plaintiffs’ claim for damages for intentional interference in contractual should be dismissed.

Claim for permanent injunctions

  1. [84]
    The plaintiffs alleged that the defendants intend to use the Tenement: as “an access way for plant, equipment, and other resources and material”; as “a laydown area for structural elements”; as “a formwork propping zone for a new cinema structure”; and as “a work zone to build permanent structural elements”.  The plaintiffs alleged the defendants intended to carry out works “upon and in respect of” the Tenement, including constructing lift pits and escalator pits.  The plaintiffs also alleged the defendants would “permanently and significantly obstruct and impede, restrict or hinder access” to the Tenement and the Lot 7 Loading Dock in carrying out the alleged intended works, and so cause the plaintiffs loss and damage.
  2. [85]
    The defendants denied all these allegations.  The plaintiffs adduced no evidence in support of them. 
  3. [86]
    Mr Matthews KC did not press the first injunction sought, because the works TCL proposed had been completed. No injunction was pressed against Buildcorp.  The TDC Report does not show any conduct by TCL, after completion of the works, that ought to be restrained.  There is no basis for a permanent injunction.
  4. [87]
    The injunctions should be refused.

Final disposition

  1. [88]
    The plaintiffs’ claims against the defendants should be dismissed and there should be judgment for the defendants against the plaintiffs, with costs.

Footnotes

[1]  Lease J was granted by the Commissioner for Railways to Waltons Stores (Interstate) Ltd.  It was entered in the register book on 8 December 1985. 

[2]  Lease J provides that the delineation of the Tenement on the Lease Plan is in red.  The Tenement is marked and identifiable in the black and white copy of Lease J, which the plaintiffs tendered.

[3]  The tendered copy of Lease J may not be complete (part of cl 12 seems to have been omitted), and it may not be in its original order (the second schedule appears before the first schedule).

[4]  The reference level (RL) is 11.04m above Australian height datum (AHD).  AHD is based on mean sea level being zero elevation.

[5]  Mount Cathay is the registered proprietor of an estate in fee simple in Lots 1, 5 and 7 on RP 9618 (Lot 1, Lot 5 and Lot 7, respectively), and Lot 2 on RP M333125 (Lot 2).

[6] Scott v Shire of Numurkah (1954) 91 CLR 300, 312-314 (Dixon CJ, Webb, Kitto and Taylor JJ).

[7]  Some witnesses and documents referred to the block wall as the western deflection wall. 

[8]  The Survey Plan shows the outline of a square feature in this area.

[9]  It follows that the beams and the concrete slab are outside the vertical limit of the Tenement.

[10]  The parties agreed that QR is the registered proprietor of an estate in fee simple in Lot 40 on survey plan 196164.  In these reasons, it is assumed that Lot 40 on that survey plan is the same as Lot 40 (on registered plan 134580) referred to in Lease J.

[11]  The tendered copy bears the registrar’s endorsement to that effect, dated 25 November 1999.

[12]  The plaintiffs did not bring their claims on the basis that iLife was the occupier of Lot 1 or Lot 7.

[13]  (1957) 97 CLR 36, 64-65.

[14]  (1849) 4 Exch 580, 585.

[15]  (1975) 133 CLR 550

[16]  (1975) 133 CLR 550, 573-574.

[17]  See Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105, [153]-[155] (Chesterman J).

[18] XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448.

[19]  The plaintiffs did not contend there was any relevant blockage when a small or light truck was parked at the Alden St Loading Dock. The defendants agreed with the 9.9% figure based on the TDC Report.

[20]  These were the findings the plaintiffs sought. 

Close

Editorial Notes

  • Published Case Name:

    Mount Cathay Pty Ltd & Anor v The Trust Company Ltd & Anor

  • Shortened Case Name:

    Mount Cathay Pty Ltd & Anor v The Trust Company Ltd & Anor

  • MNC:

    [2023] QSC 102

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    17 May 2023

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
Darling Island Stevedoring & Lighterage Co Ltd v Long [1957] HCA 26
1 citation
Jump To
Cite 1 - [1957] HCA 26
Darling Island Stevedoring Lighterage Co Ltd v Long (1957) 97 CLR 36
2 citations
Jump To
Cite 1 - (1957) 97 CLR 36
Cite 2 - (1957) 97 CLR 36
Multinail Australia Pty Ltd v Pryda (Aust) Pty Ltd [2002] QSC 105
2 citations
Jump To
Cite 1 - [2002] QSC 105
Cite 2 - [2002] QSC 105
Scott v Numurkah Corporation (1954) 91 CLR 300
1 citation
Jump To
Cite 1 - (1954) 91 CLR 300
Sharrod v London & North Western Railway Co (1849) 4 Exch 580
2 citations
Jump To
Cite 1 - (1849) 4 Exch 580
Cite 2 - (1849) 4 Exch 580
Stoneman v Lyons (1975) 133 CLR 550
3 citations
Jump To
Cite 1 - (1975) 133 CLR 550
Cite 2 - (1975) 133 CLR 550
Cite 3 - (1975) 133 CLR 550
Stoneman v Lyons [1975] HCA 59
1 citation
Jump To
Cite 1 - [1975] HCA 59
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
2 citations
Jump To
Cite 1 - (1985) 155 CLR 448
Cite 2 - (1985) 155 CLR 448
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12
1 citation
Jump To
Cite 1 - [1985] HCA 12

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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