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CITE

Notable Unreported Decision

Body Corporate for Ye Olde Avalon Community Titles Scheme 2787 v Dorchester Nominees (No 1) Pty Ltd[2023] QSC 180Brown J
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Body Corporate for Ye Olde Avalon Community Titles Scheme 2787 v Dorchester Nominees (No 1) Pty Ltd[2023] QSC 180

SUPREME COURT OF QUEENSLAND

CITATION:	Body Corporate for Ye Olde Avalon Community Titles Scheme 2787 v Dorchester Nominees (No 1) Pty Ltd [2023] QSC 180
PARTIES:	BODY CORPORATE FOR YE OLDE AVALON COMMUNITY TITLES SCHEME 2787 (plaintiff) v DORCHESTER NOMINEES (NO 1) PTY LTD (defendant)
FILE NO/S:	BS 50 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 August 2023
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2023
JUDGE:	Brown J
ORDER:	The defendant’s application is dismissed. The plaintiff is given leave to file the Second Further Amended Claim and the Third Further Amended Statement of Claim, subject to making the amendment identified in paragraph [82] of these reasons. I will hear the parties as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the defendant applies to strike out the plaintiff’s Second Further Amended Statement of Claim, or alternatively paragraphs [16C]–[16H] of the Second Further Amended Statement of Claim, pursuant to rule 171(a), (c), (d) and/or (e) of the Uniform Civil Procedure Rules 1999 (Qld) – whether the proceedings are hypothetical in nature, futile, vexatious, oppressive, an abuse of process or disclose no reasonable cause of action such that the proceedings should be struck out – whether paragraphs [16C]–[16H] of the Second Further Amended Statement of Claim are irrelevant and disclose no reasonable cause of action Land Title Act 1994 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Planning Act 2016 (Qld) Property Law Act 1974 (Qld) Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 Bowyer Group Pty Ltd v Cook Shire Council [2019] 1 Qd R 556 CE Heath Casualty & General Insurance Ltd & AMP General Insurance Ltd v Pyramid Building Society (in liq) [1997] 2 VR 256 des Forges v Brisbane City Council [2001] QPEC 61 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Howard Street Developments Pty Ltd v Maroochy Shire Council [2002] QPEC 15 Nerang Subdivision Pty Ltd v Huston [2020] QSC 225 Sandersons Eastern Suburbs v Mercedes-Benz Australia/Pacific [2018] NSWSC 52 Scherbakov v Brisbane City Council [2020] QPEC 29 Walker v Noosa Shire Council [1983] 2 Qd R 86 Webster (Trustee) v Murray Goulburn Co-op Co. Ltd (No 2) [2017] FCA 1260
COUNSEL:	W LeMass for the plaintiff S Couper KC with R Yuen for the defendant
SOLICITORS:	Thynne + Macartney for the plaintiff Taylors Solicitors for the defendant

[1]
The defendant applies to strike out the plaintiff’s Second Further Amended Statement of Claim (2FASOC). The application is made pursuant to rule 171(a), (c), (d) and/or (e) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), on the basis that paragraphs [16C]–[16H] of the 2FASOC have rendered the proceedings as showing no reasonable cause of action, being vexatious and oppressive and an abuse of process.
[2]
Alternatively, the defendant applies to strike out paragraphs [16C]–[16H] of the 2FASOC because they are irrelevant to the relief sought by the plaintiff and are therefore unnecessary and disclose no reasonable cause of action, principally because the pleaded construction of clause 5 of the Instrument of Easement is incorrect.
[3]
Subsequent to the defendant’s application, the plaintiff filed a cross-application for leave to file a Second Further Amended Claim and Third Further Amended Statement of Claim (3FASOC).
[4]
One of the key issues for the Court’s determination is whether, by the plaintiff now asserting that notices issued to the plaintiff as to relocation of an easement are invalid because the defendant does not intend to develop the site for which it seeks development approval, the matters to be determined in the proceedings are hypothetical.

Background

[5]
The defendant is the owner of land situated at 88 Lever Street, Albion (the Land). The Land is burdened by an easement (Easement) benefitting the neighbouring property situated at 59 Lapraik Street, Ascot, which is owned by the plaintiff. The terms of the Easement are set out in a registered instrument of easement dated 20 May 1992 (Instrument of Easement).
[6]
The purpose of the Easement is to enable the plaintiff to repair, maintain and replace a retaining wall which was constructed along the boundary of the parties’ properties in the 1990s (Retaining Wall). The Retaining Wall is significant, being some 80 metres long and six metres high.
[7]
Clause 5 of the Instrument of Easement provides as follows:

“Redevelopment by the Grantor

The Grantor and the Grantee hereby agree that this easement may be extinguished in the following circumstances:

(a)
In the event that the Grantor proposes to redevelop part or all of the land comprising the Servient Tenement and in the event that the Servient Tenement shall be required by the Grantor for the construction of improvements of any sort rendering it impossible for the Grantee to exercise its right of way over the servient tenement; and

(b)
The Grantor shall give to the Grantee previous written notice that it requires the Servient Tenement for the purposes of redevelopment; and

(c)
The Grantor shall grant to the Grantee an easement over another part of its land to be substituted for this Grant of Easement, such easement to be granted on the same terms, covenants and conditions as this Grant of Easement and provided also that the Servient Tenement the subject of the alternative easement shall be of the same width so far as is nearly practicable as the Servient Tenement described herein.”

[8]
On 15 June 2018, the defendant’s then solicitors wrote to the plaintiff (the First Notice). The First Notice relevantly stated:

“In accordance with clause 5(b) of the Easement covenants, you are hereby notified that our client requires the Servient Tenement that is the subject of the Easement for the purposes of a redevelopment.”

[9]
The First Notice attached a plan depicting a Proposed Replacement Easement.
[10]
The plaintiff referred the First Notice to its solicitors, who responded to the defendant on 6 July 2018 by raising several alleged legal and technical difficulties with the Proposed Replacement Easement, including that it was too narrow. The defendant’s then solicitors responded on 1 August 2018.
[11]
On 23 October 2018, the defendant’s then solicitors sent a second notice to the plaintiff’s solicitors (the Second Notice). The Second Notice relevantly stated:

“6.
Our client is intending to shortly lodge a development application to redevelop the Property.

7.
The development consists of 95 units, including 139 car spaces and 124 bike spaces. The approximate site coverage is 2889m² or 49.7%. Enclosed are copies of the proposed development plans (“the Plans”) for your perusal.

9.
Pursuant to clauses 5(a) and 5(b) of the Current Easement, your client (as Grantee) is hereby notified that our client (as Grantor) proposes to redevelop part of the servient tenement under the Current Easement. As such, the servient tenement is required for the construction of improvements that render it impossible for the Grantee to exercise its right of way over the servient tenement.

10.
In accordance with clause 5(c) of the Current Easement, our client will grant your client a new easement over another part of its land (the New Easement), in substitution for the Current Easement.

11.
We enclose the proposed New Easement for your reference

13.
Please seek your client’s instructions and return the executed Agreement for Easement to us within fourteen (14 days) from the date hereof.” (footnote added, emphasis omitted)

[12]
The plaintiff’s solicitors responded to the Second Notice on 6 November 2018 by raising several further alleged defects in the Proposed Replacement Easement.
[13]
On 18 January 2019, following correspondence between the parties, the plaintiff invited the defendant to issue a revised, final easement addressing the defects identified so it could then take expert construction and engineering advice in relation to that easement.
[14]
The defendant did not respond, and on 26 April 2019 submitted a development application seeking approval for the construction of a high-rise apartment building on the Land (Development Application). The plans submitted with the Development Application assumed that the Easement had been relocated in accordance with the Second Notice.
[15]
The defendant’s town planner opined that the plaintiff’s written consent to the Development Application was not required on the basis that the premises are “excluded premises” because the Development Application is consistent with the Easement. According to the town planner, this was because, amongst other things:^[1]

“The applicant is, by reason of clause 5(c), required to grant the new easement, and will do so in accordance with the location of the easement as proposed in the Development Application. There is no requirement in clause 5(c) for the applicant to agree with the Body Corporate about the terms of the new easement. As such, the Development Application is necessarily consistent with the easement (as it can be extinguished and replaced) and, therefore, the premises are excluded premises.”

[16]
The Development Application was refused by the Brisbane City Council (Council) on 25 November 2020. The defendant commenced an appeal to the Planning and Environment Court on 4 January 2021. During the course of that appeal, the defendant made further alterations to the dimensions of the Proposed Replacement Easement. Due to those and other alterations, the Council no longer opposes the Development Application (subject to geotechnical issues being satisfactorily addressed).
[17]
The Planning and Environment Court proceedings were stayed by Judge Williamson KC on 16 June 2022 pending determination of the Supreme Court proceedings. That stay was not ultimately opposed by the defendant.

The 2FASOC and 3FASOC

[18]
The plaintiff commenced these proceedings on 4 January 2022 seeking a declaration that the Proposed Replacement Easement does not comply with clause 5 of the Instrument of Easement. Alternatively, the plaintiff seeks that a wider easement be imposed by the Court pursuant to s 180 of the Property Law Act 1974 (Qld) (PLA).
[19]
The 2FASOC and 3FASOC include amendments which, relevantly:

(a)
delete paragraph [9] of the Further Amended Statement of Claim, which alleged that the defendant proposes to develop the Land as a multi-storey residential apartment building;

(b)
insert paragraphs [16C]–[16H], which plead that:

(i)
the defendant purported to give notice pursuant to clause 5(b) of the Instrument of Easement on 15 June and 23 October 2018;

(ii)
the defendant does not intend to undertake the proposed redevelopment of the Land or require the servient tenement for the construction of improvements of sort;

(iii)
the defendant instead intends to sell the Land after obtaining development approval for the proposed development and after relocating the Easement;

(iv)
the commercial purpose for the defendant issuing the First and Second Notices is to move the Easement so as to improve the value of the Land for the purpose of sale; and

(v)
in the premises of the above:

(A)
the defendant was not and is not entitled to invoke clause 5 of the Instrument of Easement; and

(B)
the Proposed Replacement Easement does not comply with clause 5 of the Instrument of Easement.

(i)
paragraphs [17] and [18] are in the alternative to paragraphs [16C]–[16H]; and

(ii)
paragraph [19] is in the alternative to paragraphs [16C]–[16H].

Parties’ Contentions

[20]
The argument in the present case in one sense bears parallels to the chicken or the egg debate. Part of the argument involves a question of which Court should resolve a dispute first, this Court or the Planning and Environment Court. In the course of argument there was a tendency to conflate what has to be determined by this Court with what has to be determined by the Planning and Environment Court.
[21]
The defendant contends that there are two critical differences between the original and amended pleadings in terms of application. First, in light of its expert evidence, the plaintiff now argues that the necessary width of the Proposed Replacement Easement is five metres, not 12 metres, which can be addressed by the Planning and Environment Court and no longer gives rise to a significant issue to be determined by this Court. Second, the plaintiff now alleges that the defendant does not intend to proceed with the proposed development. The defendant contends that the additional arguments were always open for the plaintiff to raise and there is no explanation as to why they are raised now. The defendant in effect contends that the argument in this Court is therefore hypothetical and futile unless the Planning and Environment grants the development approval. It contends that is further supported by the fact that it could issue a further notice under clause 5 of the Instrument of Easement for the proposed easement relocation, after the decision of the Planning and Environment Court.
[22]
The defendant contends that the plaintiff’s case is now premised on the basis that the defendant does not intend to proceed with the proposed development. It contends that on the plaintiff’s case, the relief sought is therefore no more than hypothetical because absent the proposed development:
1. the Proposed Replacement Easement will not be granted by the defendant and may never be granted;
2. the statutory right of user under s 180 of the PLA will not be necessary and may never be required; and
3. there is no purpose to be served by deciding paragraphs [2] and [3] of the plaintiff’s Prayer for Relief.
[23]
The defendant further contends that it is premature to decide the proper construction of clause 5(c) of the Instrument of Easement in circumstances where, on the plaintiff’s case:
1. clause 5 has not been invoked by the defendant (as the plaintiff alleges that it is and was not entitled to do so); and
2. the Proposed Replacement Easement will not be granted by the defendant and may never be granted.
[24]
According to the defendant, any consideration of clause 5(c) of the Instrument of Easement would now be in the abstract and should not be undertaken by the Court when it cannot be certain that such a determination will have any effect on the rights and liabilities under the Easement. It therefore contends that the relief sought by the plaintiff is hypothetical and that the 2FASOC discloses no reasonable cause of action.
[25]
The defendant contends that the absence of a factual basis for the plaintiff’s case is of its own making, the plaintiff having altered its case such that the factual basis for the relief that it seeks does not exist. The defendant submits that it would be inappropriate to require the defendant to plead to the allegation to determine whether or not the proceedings are hypothetical as the defendant cannot be compelled to remedy the plaintiff’s defective proceedings.
[26]
The defendant also contends that when the stay of the Planning and Environment Court proceedings was sought and granted, the plaintiff submitted that the Court’s determination of whether the Proposed Replacement Easement complies with the terms of the Instrument of Easement would materially affect the appeal in the Planning and Environment Court. The defendant contends that on the plaintiff’s case now pleaded, clause 5(c) of the Instrument of Easement has not been invoked by the defendant and, in those circumstances, there is no reason for the Court to determine whether the Proposed Replacement Easement complies with the terms of the Instrument of Easement. The defendant therefore contends that the continuation of the proceedings is vexatious and oppressive.
[27]
Even if the Court does not accept its arguments, the defendant contends that paragraphs [16C]–[16H] of the 2FASOC should be struck out because none of the allegations pleaded within support the relief sought. The defendant further contends that the plaintiff’s construction of clause 5 of the Instrument of Easement is wrong because clause 5(a) requires that consideration be given to whether the grantor “proposes” to redevelop part or all of the Land, which does not require the defendant to have any intention to redevelop the Land itself.
[28]
The plaintiff, however, frames the change of its case differently. It contends that its case was originally run on the basis that clause 5(c) of the Instrument of Easement had not been complied with. The plaintiff submits that it has now strengthened its case by contending that the preconditions in clause 5(a) of the Instrument of Easement have not been met given that, on its case, the defendant does not intend to develop the Land and does not require the Land for construction such that the First and Second Notices issued by the defendant are invalid. The plaintiff contends that those matters have to be decided in this Court and are outside the jurisdiction of the Planning and Environment Court. If the plaintiff is correct, and the Easement cannot be relocated pursuant to clause 5 of the Instrument of Easement, that has a flow on effect for the Planning and Environment Court insofar as the Development Application will likely be refused because those proceedings would be futile. As a matter of case management, the plaintiff contends that the proceedings in this Court should be determined first. It is uncontentious that the Planning and Environment Court has regard to and can consider the impact of development upon any easements in considering development applications. It cannot, however, determine the validity of the Proposed Replacement Easement.
[29]
The plaintiff also contends that if it is correct as to the inconsistency of the Proposed Replacement Easement and the Instrument of Easement, the premises are not “excluded premises” and the plaintiff’s consent to the Development Application would have been required, thus affecting its validity. That is not a matter pleaded, nor is it the subject of the Planning and Environment proceedings, although the plaintiff contends that it will be a live issue and demonstrates the utility of the present proceedings given the potential effect of the outcome of the proceedings on the Planning and Environment proceedings.
[30]
In any event, the plaintiff contends that the validity or invalidity of the First and Second Notices is not contingent upon the defendant obtaining development approval or the defendant proceeding with the development. The First and Second Notices were either valid or invalid on the day they were issued. If that is not accepted, the plaintiff states that it still has an alternative argument in paragraph [17] of the 2FASOC that the Proposed Replacement Easement is too narrow, with alternative relief sought for the grant of a wider easement under s 180 of the PLA. The plaintiff contends that it has an entitlement under clause 5 of the Instrument of Easement to a sufficiently wide easement which is an extant legal right.
[31]
The plaintiff contends that the factual basis for the dispute as to the validity of the First and Second Notices crystallised on the day that those notices were given. It contends that under the Instrument of Easement, notice could only be given by the defendant if two conditions were satisfied, namely that:
1. the defendant proposed to redevelop part or all of the Land; and
2. the Land was required by the defendant for the construction of improvements rendering it impossible for the plaintiff to exercise its right of way over the Land.
[32]
According to the plaintiff, the defendant was not entitled to issue the First and Second Notices because it did not and does not intend to redevelop, or construct any improvements upon, the Land. Rather, the plaintiff asserts that the defendant was looking to secure development approval so it could increase the value of the Land for the purposes of sale. These matters are the subject of the 2FASOC in paragraphs [16C]–[16H].
[33]
The plaintiff contends the fact that the defendant may not proceed with the redevelopment of the Land does not render the proceedings hypothetical given that it seeks to rely on the lack of intention by the defendant to carry out the development as the basis for the plaintiff’s claim that the First and Second Notices are invalid.
[34]
Even if the Court determines that the defendant has satisfied the two preconditions which the plaintiff contends must be satisfied before giving notice under the Instrument of Easement, it would still fall upon the Court to determine whether an easement of appropriate width should be granted as a replacement easement and whether a further statutory easement should be granted.
[35]
In response to the defendant’s application, the plaintiff seeks leave to file the Second Further Amended Claim and 3FASOC to meet the defendant’s complaints and to put the matter, according to the plaintiff, beyond debate.
[36]
By way of the proposed Second Further Amended Claim, the plaintiff seeks additional relief, namely declarations that:
1. the defendant’s First and Second Notices are inoperative, invalid and of no effect; and
2. by reason of (a), the Easement has not been extinguished, the defendant cannot invoke clause 5 of the Instrument of Easement, and the Proposed Replacement Easement does not comply with clause 5 of the Instrument of Easement.
[37]
The plaintiff also seeks injunctive relief restraining the defendant from granting, or purporting to grant, the Proposed Replacement Easement. Other incidental amendments are also sought.
[38]
The defendant asserts that the proposed amendments of the plaintiff by way of the amended relief demonstrate that the proceedings are premature. If development approval is granted by the Planning and Environment Court, the defendant contends that there will be a process for the surrender of the Easement and grant of a new easement which will require the plaintiff to execute documents. It is only at that stage, according to the defendant, that if the plaintiff declines to execute the documents the defendant would have to commence proceedings of its own to compel the execution of the documents. It contends that the plaintiff’s claimed declaration in paragraph [1B] of the Second Further Amended Claim, by which it, inter alia, seeks a declaration that giving notice to the plaintiff under clause 5(b) of the Instrument of Easement did not have the effect of extinguishing the Easement and therefore raises a false issue. According to the defendant, there is no live dispute that the Easement was extinguished by the defendant giving the notices.
[39]
In particular, the defendant contends that extinguishment of the Easement could only occur if an instrument of surrender, which must be signed by both parties,^[2] was registered under s 90 of the Land Title Act 1994 (Qld) (LTA). The Proposed Replacement Easement would then have to be registered over the relevant lot.^[3] An instrument of easement can only be registered if signed by the dominant and servient tenement owners.^[4]
[40]
Thus, the defendant contends that the claim for relief in paragraph [1B(b)(i)] of the Second Further Amended Claim is unnecessary. If that is the case, there is no basis for the grant of injunctive relief.
[41]
The defendant contends that the plaintiff’s proposed amendments seek to raise issues which are not real issues which are in dispute and are incapable of supporting the claims for the Court to decide what easement is required pursuant to the Instrument of Easement or s 180 of the PLA.
[42]
The defendant further contends that the plaintiff’s contentions now seek to raise a further issue that its consent to the Development Application was required, and the Development Application is invalid given the absence of such consent, which the defendant says is wrong at law given the terms of the Planning Act 2016 (Qld) (Planning Act). The defendant submits it is the owner of the servient tenement under the Instrument of Easement, not the plaintiff. The Planning Act, defines “owner” to mean the person who “is entitled to receive rent for the land, premises or place” or the person who “would be entitled to receive rent for the land, premises or place if the land premises or place were rented to a tenant”.^[5] That, plainly, was not the plaintiff according to the defendant. The plaintiff’s consent was not therefore required, nor would the plaintiff’s construction accord with the purpose of the Planning Act. Adopting the plaintiff’s construction would in effect provide it with a veto power. Therefore, the defendant contends that the Second Further Amended Claim and 3FASOC do not raise any issue which would have any impact upon the Planning and Environment Court proceedings.
[43]
As to the allegations in the 3FASOC regarding the width of the Proposed Replacement Easement and whether it falls within the terms of the Instrument of Easement which was the original subject of the dispute, the defendant submits that the plaintiff’s case has changed from asserting that the Proposed Replacement Easement must be 12 metres wide to now asserting it should be some five metres wide based on the plaintiff’s expert report. The defendant now contends that the argument as to whether the Proposed Replacement Easement complies with clause 5(c) of the Instrument of Easement has become inconsequential and futile. As a result of the plaintiff’s expert report as to the width of the easement that is now required, the Proposed Replacement Easement goes up to but does not impinge on the boundary of the proposed development. The defendant contends that the Planning and Environment Court will consider the dimensions of the Proposed Replacement Easement required in order for the Retaining Wall to be maintained as part of its determination of whether the development approval should be granted. In that circumstance, the only issue that the Planning and Environment Court will now have to consider is whether a proposed BBQ shelter can be moved somewhere which is acceptable in terms of amenity but can accommodate the width of the Proposed Replacement Easement.^[6]
[44]
The plaintiff seeks to be granted a wider easement as alternative relief pursuant to s 180 of the PLA if it fails to establish that the Proposed Replacement Easement is invalid because it does not comply with clause 5(c) of the Instrument of Easement because it is too narrow and its corners are too tight. For the purposes of this application, the seeking of that alternative relief, while only available in this Court, does not add significantly to the plaintiff’s case given its argument that the Proposed Replacement Easement is insufficient for the purposes of clause 5(c) of the Instrument of Easement.
[45]
As to the contention that paragraphs [16C]–[16H] of the 2FASOC do not disclose a reasonable cause of action, the plaintiff contends that the objective purpose of clause 5 of the Instrument of Easement is to confine the circumstances in which the Easement may be relocated to only those occasions where the owner of the Land actually intends to redevelop the Land. Otherwise, the clause would allow for the plaintiff to be put to unnecessary expense by having to seek expert advice for each reconfiguration that may never be intended to be carried out.

Consideration

[46]
The ultimate questions for the Court’s determination are whether:
1. the proceedings are now hypothetical in nature or an abuse of process or vexatious such that they should be struck out; and
2. paragraphs [16C]–[16H] disclose no reasonable cause of action, such that they should be struck out.
[47]
A number of sub-issues as outlined above are encompassed within those questions.

Is the plaintiff’s case hypothetical or an abuse of process or vexatious?

[48]
The principles in relation to declaratory relief and whether it is available were conveniently summarised by Bond J in Nerang Subdivision Pty Ltd v Huston:^[7]

“[40]
The classic statement of general principle governing the exercise of the inherent power is that made by the High Court in Ainsworth v Criminal Justice Commission in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ, as follows:

‘It is a discretionary power which “[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.” However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”.’

[42]
The High Court subsequently re-examined the considerations which mark out the boundaries of judicial power in Bass v Permanent Trustee Co Ltd in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in the following passage:

‘The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy.

Because the object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions. The jurisdiction with respect to declaratory relief has developed with an awareness of that traditional attitude. In In re F (Mental Patient: Sterilisation), Lord Goff of Chieveley said that:

a declaration will not be granted where the question under consideration is not a real question, nor where the person seeking the declaration has no real interest in it, nor where the declaration is sought without proper argument, eg in default of defence or on admissions or by consent.’

By “not a real question”, his Lordship was identifying what he called the “hypothetical or academic”. The jurisdiction includes the power to declare that conduct which has not yet taken place will not be in breach of a contract or a law and such a declaration will not be hypothetical in the relevant sense. Barwick CJ pointed this out in The Commonwealth v Sterling Nicholas Duty Free Pty Ltd. However, that is not the present case.

It is true that some have seen the use of the declaratory judgment as little more than the giving of an advisory opinion. However, one crucial difference between an advisory opinion and a declaratory judgment is the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. Thus, the authors of one recent text on declaratory judgments emphasise that, where the dispute is divorced from the facts, it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. They say:

‘If … the dispute is not attached to specific facts, and the question is only whether the plaintiff is generally entitled to act in a certain way, the issue will still be considered theoretical. The main reason for this is that there may be no certainty that such a general declaration will settle the dispute finally. Subsequent to that declaration a person (the defendant himself or someone else) may be adversely affected by a particular act of the plaintiff. It may then be doubtful whether this act is covered by the declaration. In such a case the affected person will probably be entitled to raise the issue again on its special facts. Indeed, such a declaration will in effect be a mere advisory opinion.”

[43]
Despite the unqualified nature of the statement in Ainsworth v Criminal Justice Commission that relief will not be granted if relief is “claimed in relation to circumstances that [have] not occurred and might never happen”, it is apparent that relief is sometimes granted in such circumstances: see the discussion in Zamir & Woolf, The Declaratory Judgment (4^th ed, Sweet & Maxwell) at [4-137] to [4-160]. As Brennan J (then a judge of the Federal Court) observed in the earlier case of Re Tooth & Co Ltd (1978) 31 FLR 314 at 332, “mere futurity does not establish that the question is hypothetical in the relevant sense”. The difficulty, his Honour went on to observe (at 333), is “to determine whether a particular case falls on one side or the other of the line which divides the hypothetical from the non-hypothetical cases.”

[44]
His Honour went on to explain that the difference between the two cases may only be one of degree in the following passage:

In the United States, where federal courts are limited (pursuant to Art. III of the U.S. Constitution, and by the Declaratory Judgment Act) to granting declaratory relief only in “a case of actual controversy”, the Supreme Court has held that the difference between such a case and an hypothetical case is one of degree:

… Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment” (Maryland Casualty Co. v. Pacific Coal and Oil Co.).

A controversy as to the lawfulness of future conduct cannot be said to be immediate and real if it is unlikely that the applicant will engage in the conduct (Golden, Acting District Attorney of Kings County v. Zwickler). If the prospects of the applicant engaging in the conduct are uncertain, the uncertainty may deprive the controversy of a sufficient immediacy and reality to warrant the making of a declaration (Steffel v. Thompson). The degree of uncertainty as to whether the applicant will engage in the conduct proposed will usually determine whether the circumstances call for the making of a declaration.” (footnotes and emphasis omitted)

[49]
The plaintiff sought to identify a number of matters to demonstrate that there is a present legal controversy. The First and Second Notices sent to the plaintiff on 15 June and 23 October 2018 are in terms of the plaintiff being notified of the servient tenement being required for the purposes of redevelopment or construction of improvements. The Second Notice stated, amongst other things:

“6.
Our client is intending to shortly lodge a development application …

8.
From the Plans, you will note that our client will demolish the existing buildings and construct a residential building through part of the servient tenement of the Current Easement.

9.
Pursuant to clauses 5(a) and 5(b) of the Current Easement, your client (as Grantee) is hereby notified that our client (as Grantor) proposes to redevelop part of the servient tenement under the Current Easement. As such, the servient tenement is required for the construction of improvements …”. (emphasis added)

[50]
On the plaintiff’s case, a number of the assertions made in the Second Notice are wrong because the defendant does not propose to redevelop the Land or require the Land for construction of improvements, with the result that the Second Notice is void and of no legal effect. In the context of a strike out application, it does not fall upon me to determine whether that is factually correct or not. The plaintiff contends that its solicitor sent a letter to the defendant asking it to commit to a replacement easement so it could then obtain expert advice. It further contends that rather than responding to that letter, the defendant proceeded to lodge the Development Application, where its town planner informed the Council that the Proposed Replacement Easement was consistent with clause 5 of the Instrument of Easement such that premises were “excluded premises”. The town planner made reference to the Second Notice and further stated that “[t]he applicant is, by reason of clause 5(c), required to grant the new easement, and will do so in accordance with the location of the easement as proposed in the Development Application.”^[8]
[51]
The plaintiff contends that the statement in respect of the Proposed Replacement Easement made to the Council by the defendant’s town planner and the Second Notice to which he referred were incorrect. It also points to the Council’s presumption in the position which it adopted that the Proposed Replacement Easement is consistent with the Instrument of Easement. Both are the matters which the plaintiff contends are incorrect. According to the plaintiff, these matters demonstrate that whether clause 5 of the Instrument of Easement was validly invoked is highly relevant to the question of whether or not the Development Application should be granted.
[52]
The defendant asserts that the plaintiff’s case as amended is an abuse of process, which the Court has an inherent power to deal with by striking out or staying the proceedings.^[9] It is uncontroversial that the Court has such a power. According to the defendant, the proceedings as now formulated by the plaintiff bear similarity to the case considered by McDougall J in Sandersons Eastern Suburbs v Mercedes-Benz Australia/Pacific (Sandersons)^[10]. In particular, the defendant contends that the plaintiff’s allegation that the proposed development will not proceed transforms the present questions for consideration by the Court into hypothetical ones because, if the development does not occur, the Proposed Replacement Easement will not be granted, the question of the width of the Proposed Replacement Easement will not matter, the statutory right of user will not be required, and no purpose will be served by the relief sought.
[53]
That, however, suggests that the Proposed Replacement Easement will not be acted upon by the defendant if it does not intend to develop the Land. That does not necessarily follow. The Proposed Replacement Easement is part of the proposal in the Development Application to obtain development approval. In those circumstances, even if the plaintiff is correct that the defendant does not intend to develop the Land itself, that does not mean that the defendant will not seek to enforce the Proposed Replacement Easement under clause 5 of the Instrument of Easement.
[54]
Unlike the case of Sandersons, the defendant in this case did not merely threaten to issue the notices but did issue the notices and sought to exercise a contractual right under the Instrument of Easement. Thus, unlike in Sandersons where McDougall J concluded that the declaration was sought in relation to contractual consequences of a future event that may or may not occur where the contractual power had not been exercised, albeit there was evidence of an intention to do so, the defendant in this case has purported to exercise a contractual right. In that regard, the defendant relied on a letter from its town planner which was submitted as part of the assessment process and positively asserted that the Second Notice was valid.^[11] The declaration sought is not contingent on the exercise of contractual rights. That has occurred and based on that a challenge is made to the validity of the exercise of that contractual right under clause 5(a) of the Instrument of Easement on specific facts. The contingency is whether the defendant will act upon the contractual rights so exercised.
[55]
As to whether the controversy between the parties will have adverse legal impacts of sufficient immediacy and reality to warrant the making of a declaration, the plaintiff contends that, if valid, the First and Second Notices had an immediate and direct legal effect because they extinguished the Easement and were not entitled to invoke clause 5 of the Instrument of Easement pursuant to the notices. Underlying the declaration sought in paragraph [1B(b)(ii)] of the Second Further Amended Claim is that the issuing of the First and Second Notices had the effect of extinguishing the Easement. The defendant contends, however, that there is no dispute that the issuing of the First and Second Notices did not have such an effect and nor could it until the relevant steps were taken in accordance with the LTA. While there is strength in the defendant’s contention that at law, the Easement is not extinguished as a result of the issuing of the First and Second Notices given the requirements of the LTA for the extinguishment of the Easement, that is not necessarily the position in equity. In oral argument, the plaintiff submitted that if the First and Second Notices were issued, the Easement would be regarded as extinguished in equity and the plaintiff was liable to a process that it was bound to follow through. There is evidence that by issuing the notices, the defendant has sought to invoke clause 5 of the Instrument of Easement. If the First and Second Notices were valid and issued in accordance with clause 5(b), premised on clause 5(a) of the Instrument of Easement having been satisfied, there is, subject to the Proposed Replacement Easement satisfying clause 5(c) and discretionary considerations, an arguable case that the defendant could specifically enforce clause 5 and obtain orders requiring the plaintiff to sign the relevant documents to give effect to a surrender of the Easement and registration of the Proposed Replacement Easement. If the First and Second Notices are a valid exercise of the contractual power in clause 5(b) of the Instrument of Easement, the Easement is liable to be extinguished and the Proposed Replacement Easement enforced in equity if it accords with clause 5(c). In any event, whatever the weakness in the argument underlying paragraph [1B(b)(i)] of the Second Further Amended Claim, at the very least the notices on their face appear to invoke the contractual right in clause 5 on the basis that clause 5(a) is satisfied and do not merely state an intention to do so in the future. If the preconditions in clause 5(a) were not satisfied, it is arguable that the defendant was not entitled to exercise the contractual right, supporting the relief sought in paragraphs [1B(a)] and [1B(b)(ii) and (iii)].
[56]
The defendant has invoked clause 5 of the Instrument of Easement and has sought to rely on the Proposed Replacement Easement for the purposes of its Development Application. While it may not proceed with the proposed development if it obtains development approval, that does not mean that the question before the Court is hypothetical. The defendant has sought to exercise its right under clause 5 of the Instrument of Easement which it may seek to enforce. The exercise of that right remains extant. I accept that if the defendant is not granted development approval, then it is unlikely that it would proceed in seeking to relocate the Easement under clause 5 of the Instrument of Easement, given it will no longer require the Land for construction. However, the scope and validity of the Proposed Replacement Easement are both presently live issues on the basis of the 2FASOC and 3FASOC. While the plaintiff’s case now does bring into question whether the Proposed Replacement Easement will ever be acted upon in terms of a development, the defendant has taken the steps to extinguish the Easement and relocate it under the Instrument of Easement. It will of course be for the plaintiff to establish on its own case that the contractual preconditions for issuing the First and Second Notices did not exist, not the defendant (contrary to the submission of the plaintiff at paragraph [13]). However, the plaintiff has pleaded the basis upon which it asserts that the defendant’s contractual right to issue the First and Second Notices was not enlivened. While the defendant contends it could give the requisite notices at any time after the two events prescribed by clause 5(a) of the Instrument of Easement have occurred, the terms of the notices support the plaintiff’s case that the defendant has issued those notices premised on those events having been satisfied. That is arguable based on the passages of the Second Notice highlighted above. The defendant has, unlike the case in Sandersons, by issuing the notices elected to take some course and the plaintiff has by its amendments sought to challenge that the basis for doing so under clause 5(a) did not exist and that the notices are invalid as they stand. While the actual documents for extinguishing the Easement and registering the Proposed Replacement Easement have not been issued by the defendant to the plaintiff for signing, and there is uncertainty whether it will do so in the future, that does not deprive the defendant’s actions sought to be challenged by the plaintiff in paragraphs [16C]–[16H] of a sufficient immediacy and reality and establish that the question is hypothetical such that the proceedings should be regarded as frivolous or vexatious or an abuse of process.^[12] The First and Second Notices have not been withdrawn by the defendant. I am not satisfied that the amended proceedings with the relief now sought falls on the side of hypothetical cases, notwithstanding the uncertainty as to steps being taken in the future which I have identified.^[13]
[57]
That is not to say that it will not be open to the Court in the exercise of its discretion after hearing the evidence to refuse to make the declarations sought,^[14] but on the basis of the case as pleaded by the plaintiff in the 2FASOC and 3FASOC, I am not satisfied that the declarations sought are hypothetical and inutile such that the proceedings should be struck out or regarded as an abuse.
[58]
The defendant’s contention that, because on the plaintiff’s case the development may never happen, the continuation of these proceedings is vexatious and oppressive because it will no longer resolve underlying issues affecting the appeal in the Planning and Environment Court has not been established by the defendant such as to justify this Court striking out and dismissing the proceedings, notwithstanding the changed nature of the dispute. If the plaintiff is successful, that will likely have an impact on the utility of the appeal proceeding in the Planning and Environment Court given the Development Application is premised on the ability of the defendant to relocate the Easement presently on the basis of the Proposed Replacement Easement.
[59]
There is a real controversy as to whether the First and Second Notices, particularly the Second Notice which appears to be the notice relied upon in support of the Development Application, were validly given under clause 5(a) of the Instrument of Easement and whether the Easement can be relocated at all. The validity of the First and Second Notices can only be decided by this Court.
[60]
The defendant further contends that the question of whether the First and Second Notices are valid does not constrain the defendant from giving a relevant notice under clause 5 of the Instrument of Easement which will lead to a new easement being granted. It contends it is that contractual power which will be the question the Planning and Environment Court will be concerned with in its considerations as opposed to the question of the validity of the First and Second Notices. In that regard, it refers to Walker v Noosa Shire Council (Walker),^[15] where Thomas J considered that the Planning and Environment Court’s refusal of an application where there was no pre-existing authority to build as part of the approval process was difficult to understand given he could have allowed the appeals upon the condition that the authorities be obtained. In that regard, his Honour stated:^[16]

“The fact that a particular application is a clear futility, or is tainted with illegality that cannot be cured may be a ground for refusing an application. But in my opinion the council did not establish such a ground.”

[61]
The defendant contends the position is the same here given clause 5 of the Instrument of Easement. However, if the plaintiff is successful in obtaining the relief it seeks in the alternative, it will have established that the Proposed Replacement Easement is invalid and legally ineffective. If the plaintiff is successful in establishing that the defendant must intend to redevelop the Land to exercise the power in clause 5 of the Instrument of Easement and that the defendant lacks such an intention, that is a matter which may not be overcome in the future. In Walker, Thomas J noted that while approvals from the relevant authorities may be difficult to obtain, that had not been fully litigated and there was no evidence that the approvals would be impossible to obtain.^[17] That is contrary to the present case, where the plaintiff is litigating the question of the validity of the Proposed Replacement Easement in these proceedings. The fact that clause 5 is contained in the Instrument of Easement, and may be sought to be exercised again in the future by the defendant but perhaps on a different basis, does not establish the lack of utility of these proceedings. Nor does it negate the fact that the Planning and Environment Court’s consideration of the Development Application may be rendered futile if the plaintiff is successful in these proceedings. The defendant has by the First and Second Notices already put in train the Proposed Replacement Easement under clause 5 of the Instrument of Easement which in part underpins that proposed development for which approval is sought in the Planning and Environment Court. At the very least, the plaintiff’s success in these proceedings may result in the Planning and Environment Court placing conditions on any grant of approval. The amendments in the 2FASOC and 3FASOC do not in my view render the continuation of the proceedings vexatious and oppressive.
[62]
It is unfortunate that there are two sets of proceedings on foot which potentially affect each other, but that is the result of the nature and limits of the jurisdiction of the Planning and Environment Court which were noted by Brabazon J in des Forges v Brisbane City Council.^[18]
[63]
The inclusion of paragraphs [16C]–[16H] in the 2FASOC has not rendered these proceedings unnecessary. It has expanded the basis upon which the legality of the Proposed Replacement Easement is challenged. While the defendant contends it should not be placed in the position of having to respond to the plaintiff’s allegations that the defendant does not intend to develop the Land or require the Land for construction of improvements, it is not submitted that the plaintiff has not pleaded facts upon which it relies to support those allegations.
[64]
While I share the defendant’s concern as to why this matter has been raised so late in the day given the drawn-out nature of these proceedings, particularly where the plaintiff has the benefit of a stay of the Planning and Environment Court proceedings, the inclusion of those matters does not significantly expand the matters to be determined by this Court. The factual evidence required will be of a relatively narrow scope. There is no reason why the proceeding cannot be the subject of stringent directions so it may be set down for trial and resolved.

Utility in argument as to width of the Proposed Replacement Easement and clause 5(c) of the Instrument of Easement

[65]
Nor am I satisfied that the pleaded case as to paragraph 5(c) of the Instrument of Easement has been rendered unnecessary or an abuse.
[66]
The plaintiff pleads in the alternative at paragraph [17] of the 2FASOC that the Proposed Replacement Easement is to replace the Easement. That pleading was always present in the Statement of Claim, save that it has now been stated to be in the alternative. The defendant admitted in paragraph [17] of its Defence that if the development is approved, the Proposed Replacement Easement is proposed to replace the Easement. While the plaintiff has omitted paragraph [9] of its original pleading, which alleged that the defendant proposed to develop a multi-story, residential building, it is implicit that the alternative case proceeds on the premise that the defendant does intend to carry out the development and that the First and Second Notices are valid, such that consideration of the contention as to clause 5(c) has not been rendered premature or required to be undertaken in the abstract. That position was clarified by way of oral submissions and is supported by the matters pleaded in paragraphs [10]–[16B] of the 3FASOC. That said, the defendant’s criticism is not without merit given the premise of the alternative relief sought is unclear on the face of the 3FASOC. The pleading should be amended in paragraph [17] as it is presently vague and embarrassing.
[67]
Even if I am wrong that paragraphs [16C]–[16H] and the relief sought are not hypothetical, it would not be appropriate to strike out the proceedings since the alternative case demonstrates there is still a live issue between the parties as to whether clause 5(c) of the Instrument of Easement has been complied with by the defendant.
[68]
The defendant also contends that these proceedings are unnecessary given the significant narrowing in the scope of the alleged non-compliance of the Proposed Replacement Easement by the plaintiff’s own expert, such that the Planning and Environment Court would be able to deal with the dimensions and location of the Proposed Replacement Easement as part of its considerations. While the defendant contends that the Planning and Environment Court will consider whether the configuration of the proposed development can accommodate the Proposed Replacement Easement in its proposed dimensions and space, that is a different matter from the underlying question of whether the Proposed Replacement Easement complies with clause 5(c) of the Instrument of Easement at all and is valid under the Instrument of Easement. Given the Proposed Replacement Easement underpins the Development Application, the validity of the Proposed Replacement Easement plainly has an impact on those proceedings and may render the Development Application futile.
[69]
There was no dispute between the parties when the plaintiff raised only the issue of whether clause 5(c) of the Instrument of Easement had been complied with that that was a matter which should be dealt with by this Court and a stay was granted with the agreement of the defendant. The fact that the plaintiff’s case has factually narrowed on the basis of its expert report does not mean the issue is no longer a live one which requires determination in this Court. The question remains the subject of legal controversy, albeit the issue has narrowed significantly, and its determination has a direct legal effect in terms of the Proposed Replacement Easement underlying the Development Application and the utility of that application.^[19] I do not accept that the proceedings should now be struck out given the pleading as to compliance of the Proposed Replacement Easement with clause 5(c) remains a live issue and has not been rendered otiose by the other amendments nor its determination premature.
[70]
According to the plaintiff, there is a further utility in this Court determining the question of whether the Proposed Replacement Easement does not comply with clause 5(c) of the Instrument of Easement, because if it finds that it does not comply that has a further potential legal effect on whether the Development Application was valid at all because the Development Application was made without the plaintiff’s consent. There appears to be an arguable case that the premises were not “excluded premises” under the Planning Act on the basis that the Proposed Replacement Easement was not consistent with the Instrument of Easement. The question then, however, is whether the plaintiff’s consent would have still been required if that was the case. In that regard the parties relied on divergent authorities.^[20] While it is a question of law, it is a matter for the Planning and Environment Court, not this Court, as to whether the plaintiff’s consent would be required if the premises are excluded premises. It would be inappropriate for me to venture my opinion. Nor is it necessary. Even without consideration of this argument, the defendant has not established that the determination of the clause 5(c) argument has been rendered inutile or vexatious as discussed above.

Basis of stay

[71]
The defendant raises an additional basis for a stay, namely that the proceedings are an abuse of process or vexatious and oppressive. It contends that the change in the plaintiff’s case means that clause 5(c) of the Instrument of Easement has not been invoked and therefore cannot materially affect the appeal such that the basis for the stay granted by the Planning and Environment Court no longer exists. I have not found that to be made out notwithstanding the amendments made to the plaintiff’s case for the reasons set out above. Further, I note that the stay was a matter consented to by the defendant and if it contends that those proceedings should no longer be stayed given the developments in these proceedings, that is a matter which would properly be dealt with by the Planning and Environment Court.
[72]
While the defendant contends that the purpose of these proceedings was said to be to resolve underlying issues affecting the Planning and Environment Court proceedings, which is no longer the case given the change in the plaintiff’s case, I am satisfied for the reasons set out above that the outcome of the proceedings as contained in the 3FASOC having an impact upon the Planning and Environment Court proceedings has not been excluded by the defendant. I am therefore not satisfied that the continuation of these proceedings is vexatious and oppressive.
[73]
I am not satisfied that the proceedings should be struck out in their entirety and the proceedings dismissed.

Should paragraphs [16C]–[16H] of the 2FASOC be struck out?

[74]
The defendant contended, in the alternative to its application to strike out the whole of the proceedings, that paragraphs [16C]–[16H] of the 2FASOC should be struck out on the basis that they are not relevant to the plaintiff’s Prayer for Relief. The plaintiff sought to address the complaint by further amendments to the relief to include paragraphs [1B] and [2A] in the Second Further Amended Claim, by which it sought a declaration and alternatively an injunction to restrain the defendant from granting or purporting to grant the plaintiff the Proposed Replacement Easement. In oral submissions, the plaintiff clarified that the injunctive relief in paragraph [2A] is only sought if the First and Second Notices purporting to replace the Easement are upheld as valid.
[75]
The defendant contended that the further relief was still plagued by difficulties meaning it could not be sustained. In particular, it contended that the declaration in paragraph [1B] of the Second Further Amended Claim was not a real question in dispute between the parties. I have dealt with the question of extinguishment of the Easement above. In my view, it is not inarguable that the Proposed Replacement Easement may be enforced in equity and relief obtained that the plaintiff execute the relevant documents for the surrender of the Easement and registration of the Proposed Replacement Easement. There is therefore a basis for paragraph [1B(b)(i)] of the Second Further Amended Claim. As set out above, there is at least an arguable case justifying the relief in terms of the other matters the subject of the declaration which are sought. I accept that the injunctive relief in paragraph [2A] of the Second Further Amended Claim is standalone relief not reliant on paragraph [1B]. Whether that relief is likely to be granted is not a matter to be determined as part of this application.
[76]
I find that the pleading in paragraphs [16C]–[16H] is not irrelevant and does disclose a reasonable cause of action.
[77]
The defendant further contends that the basis of the pleaded case in paragraphs [16C]–[16H] cannot succeed because the defendant’s intention is irrelevant given the ordinary meaning of “propose”, which it says relevantly means “to put forward or suggest as something to be done”.^[21] The plaintiff, however, contends that when regard is had to the terms of clause 5(a) of the Instrument of Easement as a whole, it is not inarguable that intention is relevant to the reference to “propose” and the operation of the clause. This argument was raised and dealt with by both sides in a fairly superficial way. I will dispose of it shortly.
[78]
While “propose” includes the meaning relied upon by the defendant, it bears a number of meanings including:^[22]

“1.
to put forward (a matter, subject, case, etc.) for consideration, acceptance, or action: to propose a new method; to propose a toast.

2.
to put forward or suggest as something to be done: he proposed that a messenger be sent.

……

4.
to put before oneself as something to be done; to design; to intend.

5.
to present to the mind or attention; state.

…”

[79]
The meaning of “proposes” has to be determined in the context of the clause in which it appears. The principles of construction of a commercial contract were set out by the High Court in Electricity Generation Corporation v Woodside Energy Ltd,^[23] and would be relevant to the present context. In that regard, the plaintiff relies on a number of features to support its proposition that the defendant’s intention is relevant under clause 5(a) of the Instrument of Easement. It contends that if it were otherwise the plaintiff would be put to unnecessary time and cost, the defendant being empowered to move the Easement regardless of any intention to proceed with any development necessitating its relocation. Further it contends that the objective purpose of the clause is to confine the defendant’s ability to relocate the Easement to only those occasions where the defendant actually intends to develop the Land. It contends that is further supported by the reference in clause 5(a) to “… the Servient Tenement shall be required by the Grantor for the construction of improvements … rendering it impossible for the Grantee to exercise its right of way over the servient tenement.” The latter part of the clause does lend support to a construction of clause 5 whereby a reasonable businessperson would have understood that to propose to redevelop includes an actual intention to redevelop before clause 5 of the Instrument of Easement could be invoked and notices issued under clause 5(b). That is lent some support by clause 5(b) which refers to “the purposes of redevelopment”. Paragraph [16E] of the 2FASOC (and in its amended form in the 3FASOC) is not therefore irrelevant. To that extent, the matters pleaded in paragraphs [16F] and [16G] as to the defendant’s actual intention are not irrelevant to the extent they seek to plead a different intention which the plaintiff contends is outside of clause 5 although of tenuous relevance.
[80]
The pleading in paragraphs [16C]–[16H] of the 2FASOC is therefore not inarguable and I am not satisfied that it does not disclose a reasonable cause of action.

Conclusion

[81]
Given the above, the defendant’s application should be dismissed.
[82]
I consider it is necessary for the plaintiff to amend its relief in order to support the relevance of paragraphs [16C]–[16H] as contained in its Second Further Amended Claim and 3FASOC. The plaintiff’s application should be allowed and leave should be given to file the 3FASOC subject to the plaintiff inserting the words “if the defendant proposes to carry out the proposed development” after “alternatively” in paragraph [17] to make clear the basis of the alternative argument, which the plaintiff’s counsel in argument stated he was prepared to do.

Orders

The defendant’s application is dismissed.
The plaintiff is given leave to file the Second Further Amended Claim and the Third Further Amended Statement of Claim, subject to making the amendment identified in paragraph [82] of these reasons.
I will hear the parties as to costs.

Footnotes

[1] Exhibit DT16 to the Affidavit of David Taylor affirmed 2 March 2023 at paragraph [25] (CFI 39–40).

[2]Land Title Act 1994 (Qld) s 90(2)(a).

[3]Land Title Act 1994 (Qld) s 82.

[4]Land Title Act 1994 (Qld) s 83(1)(b).

[5]Planning Act 2016 (Qld) s 51 and sch 2: supported by Howard Street Developments Pty Ltd v Maroochy Shire Council & Anor [2002] QPELR 423 at [3]–[8] where the consent of the owner of the dominant tenement was not required for the lodgement of a development application.

[6] Exhibit DT40 and DT41 to the Affidavit of David Taylor affirmed 2 March 2023 (CFI 39–40).

[7] [2020] QSC 225 at [40]–[43]. See also Beach J in Webster (Trustee) v Murray Goulburn Co-op Co. Ltd (No 2) [2017] FCA 1260 at [47]–[50].

[8] Exhibit DT16 to the Affidavit of David Taylor affirmed 2 March 2023 at paragraph [25] (CFI 39–40).

[9] See for example Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 at [14]–[15].

[10] [2018] NSWSC 52.

[11] Exhibit DT16 to the Affidavit of David Taylor affirmed 2 March 2023 (CFI 39–40).

[12] As to which see Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 at 266–67 [14]–[15].

[13] See CE Heath Casualty & General Insurance Ltd & AMP General Insurance Ltd v Pyramid Building Society (in liq) [1997] 2 VR 256 at 282 (per Ormiston JA) referred to in Webster (Trustee) v Murray Goulburn Co-op Co. Ltd (No 2) [2017] FCA 1260 at [49] (per Beach J).

[14]Webster (Trustee) v Murray Goulburn Co-op Co. Ltd (No 2) [2017] FCA 1260 at [50] (per Beach J).

[15] (1983) 2 Qd R 86.

[16]Walker v Noosa Shire Council [1983] 2 Qd R 86 at 89.

[17]Walker v Noosa Shire Council [1983] 2 Qd R 86 at 88–89.

[18] [2001] QPEC 61 at [18]–[19].

[19] If the proposed relocation of the easement was not legally effective, it would be open to the Planning and Environment Court to consider whether it is futile: Walker v Noosa Shire Council [1983] 2 Qd R 86.

[20]Planning Act 2016 (Qld) s 51(2)(c).

[21] At paragraph [52] of the Outline of Submissions of the Applicant/Defendant.

[22]Macquarie Dictionary (online at 28 July 2023) ‘propose’.

[23] (2014) 251 CLR 640 at [35].

Editorial Notes

Published Case Name:
Body Corporate for Ye Olde Avalon Community Titles Scheme 2787 v Dorchester Nominees (No 1) Pty Ltd
Shortened Case Name:
Body Corporate for Ye Olde Avalon Community Titles Scheme 2787 v Dorchester Nominees (No 1) Pty Ltd
MNC:
[2023] QSC 180
Court:
QSC
Judge(s):
Brown J
Date:
17 Aug 2023
White Star Case:
Yes

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Batistatos v Roads and Traffic Authority (NSW)	View on:JADE(2006) 226 CLR 256	3 citations Jump To Cite 1 - (2006) 226 CLR 256 Cite 2 - (2006) 226 CLR 256 Cite 3 - (2006) 226 CLR 256
Bowyer Group Pty Ltd v Cook Shire Council	[2019] 1 Qd R 556; [2018] QCA 159	1 citation Jump To Cite 1 - [2019] 1 Qd R 556
C. E. Heath Casualty & General Insurance Ltd v Pyramid Building Society (In liquidation)	View on:VR[1997] 2 VR 256	2 citations Jump To Cite 1 - [1997] 2 VR 256 Cite 2 - [1997] 2 VR 256
des Forges v Brisbane City Council	[2001] QPEC 61	2 citations Jump To Cite 1 - [2001] QPEC 61 Cite 2 - [2001] QPEC 61
Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd and Ors	View on:JADE(2014) 251 CLR 640	2 citations Jump To Cite 1 - (2014) 251 CLR 640 Cite 2 - (2014) 251 CLR 640
Howard Street Developments Pty Ltd v Maroochy Shire Council	[2002] QPEC 15	1 citation Jump To Cite 1 - [2002] QPEC 15
Howard Street Developments Pty Ltd v Maroochy Shire Council	(2002) QPELR 423	1 citation Jump To Cite 1 - (2002) QPELR 423
Nerang Subdivision Pty Ltd v Hutson	[2020] QSC 225	2 citations Jump To Cite 1 - [2020] QSC 225 Cite 2 - [2020] QSC 225
Re: Tooth & Co Limited	(1978) 31 FLR 314	1 citation Jump To Cite 1 - (1978) 31 FLR 314
Sandersons Eastern Suburbs v Mercedes-Benz Australia/Pacific	View on:JADE[2018] NSWSC 52	2 citations Jump To Cite 1 - [2018] NSWSC 52 Cite 2 - [2018] NSWSC 52
Scherbakov v Brisbane City Council	[2020] QPEC 29	1 citation Jump To Cite 1 - [2020] QPEC 29
Walker v Noosa Shire Council	[1983] 2 Qd R 86	5 citations Jump To Cite 1 - [1983] 2 Qd R 86 Cite 2 - [1983] 2 Qd R 86 Cite 3 - [1983] 2 Qd R 86 Cite 4 - [1983] 2 Qd R 86 Cite 5 - [1983] 2 Qd R 86
Webster (Trustee) v Murray Goulburn Co-op Co. Ltd (No 2)	View on:JADE[2017] FCA 1260	4 citations Jump To Cite 1 - [2017] FCA 1260 Cite 2 - [2017] FCA 1260 Cite 3 - [2017] FCA 1260 Cite 4 - [2017] FCA 1260

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Body Corporate for Ye Olde Avalon Community Titles Scheme 2787 v Dorchester Nominees (No 1) Pty Ltd[2023] QSC 180