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Odlin v River Rd Investments Pty Ltd[2023] QSC 182

Odlin v River Rd Investments Pty Ltd[2023] QSC 182

SUPREME COURT OF QUEENSLAND

CITATION:

Odlin v River Rd Investments Pty Ltd [2023] QSC 182

PARTIES:

CHRISTOPHER BRIAN CHARLES ODLIN

(applicant)

v

RIVER RD INVESTMENTS PTY LTD

ACN 653 854 859

(respondent)

FILE NO/S:

BS No 6927 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

6 July 2023

JUDGE:

Kelly J

ORDERS:

  1. The application filed 22 June 2023 is dismissed.
  2. The application filed 22 June 2023 is dismissed.
  3. The originating application filed 8 June 2023 is dismissed.
  4. I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – AMENDMENT – ORIGINATING PROCESS, PLEADINGSETC – where the parties own adjoining properties in the suburb of Redbank – where there is a registered easement that runs through the servient tenements, the applicant’s property and the common property of a non-party, the Body Corporate for Redbank Industrial Parkland Community Title Scheme 31664 – where the dominant tenement is the respondent’s property – where the applicant commenced a proceeding against the respondent in the District Court after becoming aware of works being performed on the easement by the respondent’s agent – where there was a hearing of the District Court proceeding during which the respondent contended that the easement was obsolete – where the District Court proceedings were adjourned – where, prior to the District Court hearing, the applicant filed an originating application in this Court seekingto amend the originating application filed in the District Courtand seeking to have those proceedings transferred to this Court – where the applicant filed an interlocutory application seeking to amend the originating application – whether there should be a grant of leave to amend the originating process filed in the District Court

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – NON-PARTYINTERVENTION – where the applicant filed an interlocutory application seeking the joinder of a non-party, the Body Corporate for Redbank Industrial Parkland Community Title Scheme 31664 – whether the non-party ought be joined to the proceedings

Civil Proceedings Act 2011 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 62

Property Law Act 1974 (Qld), s 180, s 181

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Averono & Anor v Mbuzi & Anor [2005] QSC 6

Effeney v Millar Investments Pty Ltd [2011] NSWSC 708

Ex parte Proprietors of “A Veril Court” Building Units Plan No. 2001 [1983] 1 Qd R 66

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420

Re Wenck & Anor [2004] QSC 15

COUNSEL:

A Moriarty (sol) for the applicant

M D Martin KC for the respondent

SOLICITORS:

AXM Law for the applicant

Cooper Grace Ward for the respondent

An originating application and two interlocutory applications

  1. [1]
    These Reasons concern a proceeding started by an originating application and two interlocutory applications made within the proceeding. The first interlocutory application was filed by the applicant in the proceeding (“Mr Odlin”) and seeks leave to amend the originating application. The second interlocutory application was filed in the name of a non-party, the Body Corporate for Redbank Industrial Parkland Community Title Scheme 31664 (“the Body Corporate”) and seeks its joinder as a second applicant. Mr Moriarty of AXM Law acts for the applicant and submitted that he also acted for the Body Corporate.

Factual Background

  1. [2]
    Mr Odlin and the respondent own adjoining properties in the suburb of Redbank.
  1. [3]
    In or about 1996, Mr Odlin became the registered proprietor of his property (“99 River Road”). Since then, 99 River Road has been, and remains, vacant land. Mr Odlin intends to develop 99 River Road.
  1. [4]
    On 22 January 2022, the respondent became the registered proprietor of its property (“63 River Road”), which is an industrial site with multiple tenancies.
  1. [5]
    There is a registered easement (“Easement W”) which runs through the servient tenements, 63 River Road and the common property of the Body Corporate. The dominant tenement is 99 River Road.
  1. [6]
    Easement W was registered on 19 July 1988. The schedule to the grant materially provides:
  1. “1.
    The Grantor (which expression shall include the successors and assigns of the Grantor where the context permits or requires) does hereby grant, assign, set over and transfer to the Grantee (which expression shall include the successors and assigns of the Grantee wherever the context permits or requires) and the owner or owners and occupiers for the time being and from time to time of the Dominant Tenement (which expression shall include each and every part of the Dominant Tenement and as it may be subdivided from time to time) full and free right and liberty as appurtenant to the Dominant Tenement for the Grantee and its tenants and the Grantee’s and the Tenants' servants workmen agents nominees licencees invitees and others in common with the Grantor and all persons now or hereafter authorised by the Grantor at all times hereafter by day and by night without animals but with vehicles of every description whether laden or unladen to go pass and repass to over or from the Servient Tenement for all purposes connected with the following:-
  1. (a)
    the construction of storage facilities upon the Dominant Tenement to enable the bringing upon the Dominant Tenement of coal by methods satisfactory to the Grantee;
  1. (b)
    the construction of facilities upon the Dominant Tenement to enable the distribution and transport of coal from the Dominant Tenement;
  1. (c)
    maintenance replacement or refurbishing of any such facilities as aforesaid;
  1. PROVIDED HOWEVER that the Grantee shall not be entitled or permitted at any time to bring distribute or transport over across or along the Servient Tenement coal or any other substance the product or the subject of any commercial or other activity which may at any time be carried on upon the Dominant Tenement.
  1. 2.
    The Grantor will not at any time or times obstruct the right of way hereby granted or do anything which will or may at any time or from time to time prevent or restrict the Grantee and the other persons passing and re-passing to over or from the Servient Tenement or any part thereof.
  1. …
  1. 5.1
    The Grantee acknowledges that the Grantor may wish to relocate the Servient Tenement to give the Dominant Tenement access to a dedicated road by an alternative route.”
  1. [7]
    In August 2022, Mr Odlin became aware of works being performed on Easement W by the respondent’s agent. The works involved, inter alia, the raising of surface levels and the placement of fencing. Mr Odlin deposed that the works “completely obstructed” Easement W, were performed without his knowledge or consent and “meant that 99 River Road became land locked with no access”.[1] The respondent apparently considered that Mr Odlin’s consent was not required because Easement W was not utilised by him to access 99 River Road and its purpose was limited to coal facilities.[2] In that regard, Mr Odlin’s affidavit denied that Easement W was not utilised by him to access 99 River Road.[3] However, the evidence demonstrates, and it is not controversial, that 99 River Road and 63 River Road are zoned “RBO3L- Regional Business and Industry-Low Impact Zone”. That zoning does not permit activities involving the storage, distribution and transport of coal.
  1. [8]
    By a letter from his solicitors to the respondent’s solicitors dated 9 March 2023, Mr Odlin demanded the removal of the works on Easement W. The letter referred to Clause 5.1 of the schedule to the grant and relevantly stated:
  1. “…
  1. [o]ur client acknowledges Clause 5.1 and is open to reasonable suggestions for an alternative 8.0m wide access easement to his land.
  1. …
  1. Our client and I have considered this matter and suggest that a possible alternative route could be around the eastern, riverside boundary to your client’s land. A plan of the potential alternative route is marked in red at Annexure D to this letter.
  1. …
  1. We invite your client’s urgent response to this letter and require its substantive response by no later than Friday, 17 March 2023.”
  1. [9]
    The possible alternative route for a new easement is referred to in the material before this Court as “Easement X”.
  1. [10]
    On 13 April 2023, Mr Odlin commenced a proceeding against the respondent in the District Court. He deposed that he commenced the District Court proceeding “since [his] property remained land locked by reason of the easement works”.[4] In the District Court proceeding, Mr Odlin sought orders directed to the removal of the works on Easement W and the restoration of Easement W to its original condition.[5] He also sought damages for breach of Easement W’s conditions and a permanent injunction retraining any further breach of those conditions. [6]
  1. [11]
    On 8 June 2023, there was a hearing in the District Court proceeding during which the respondent contended that Easement W was obsolete. Of that hearing, Mr Odlin deposed, in somewhat conclusionary and oblique terms, as follows:[7]
  1. “… on 8 June 2023, at the first hearing of my District Court application, the respondent opposed my application on the basis that [Easement W] and its conditions were obsolete, and accordingly costs were awarded against me and the proceedings were adjourned to a date to be fixed, in anticipation of the proceedings potentially being transferred to [the Supreme Court] with leave”.
  1. [12]
    On 8 June 2023, the District Court proceeding was adjourned.
  1. [13]
    Prior to the District Court hearing, Mr Odlin’s solicitors had filed an originating application in this Court. The originating application filed in this Court, materially provides:
  1. “TAKE NOTICE that the applicant is applying to the court for the following orders pursuant to s 27 of the Civil Proceedings Act 2011 (Qld):
  1. 1.
    Giving leave to the applicant to amend his originating application filed in the District Court of Queensland … in the forms set out at Annexure A to this originating application;
  1. 2.
    Transferring [the District Court proceeding] to the Supreme Court of Queensland Civil Registry;
  1. 3.
    Directions for the further conduct of the proceedings; and
  1. 4.
    Costs reserved.”
  1. [14]
    Annexure A to the originating application is in the following terms:
  1. “1. orders pursuant to section 181 of the Property Law Act 1974 (Qld) that easement ‘W’ on the respondent’s land, which easement benefits the applicant’s land, be modified as the Honourable Court deems fit (as each party’s land and easement ‘W’ is described in the supporting affidavit of Christopher Brian Charles Odlin sworn on 10 February 2023);
  1. 2.
    mandatory injunctions ordering the respondent to remove its trespassory works on the applicant’s land and easement ‘W’ (as modified pursuant to order no. 1), and to restore access to easement ‘W’ to its original condition (as each of the trespassory works, land and easement ‘W’ is described in the supporting affidavit of Christopher Brian Charles Odlin sworn on 10 February 2023);
  1. 3.
    permanent injunctions restraining the respondent from further breach of easement ‘W’s conditions trespass on the applicant’s land and easement ‘W’;
  1. 4.
    damages, including mesne profits as damages, as compensation for the respondent’s breach of easement ‘W’’s conditions trespass, in an amount to be determined by the Court;
  1. 5.
    such further or other orders as this Honourable Court sees fit;
  1. 6.
    interest; and
  1. 7.
    costs on an indemnity basis.”
  1. [15]
    Mr Odlin deposed that, as at 21 June 2023, he had “instructed his lawyers to withdraw paragraphs 2, 3, 4, 6 and to seek only standard costs against the respondent”.[8] He also deposed that this meant that “the only remaining substantive issue to be determined by my originating application is the section 181 application”. [9]
  1. [16]
    By letter dated 21 June 2023, the respondent’s solicitors wrote to Mr Odlin’s solicitors as follows:
  1. “We refer to the application your client has filed in the Supreme Court of Queensland (proceedings number 6927/23) returnable on 6 July 2023.
  1. This letter is written on an open basis.
  1. Your client's Supreme Court application
  1. 1.
    Your client's Supreme Court application (like the one filed in the District Court) is doomed to fail.
  1. 2.
    By the application your client seeks leave to amend the originating proceedings filed in the District Court to include 'orders pursuant to section 181 of the Property Law Act 1974 (Qld) that Easement W)... be modified as the Honourable Court deems fit’.
  1. 3.
    Your client does not specify the way in which the easement is to be ‘modified’.
  1. 4.
    As we have been telling you for some time, … , easement W is of limited or no use. Accordingly, the only way in which it could be ‘modified’ would be to significantly alter the terms of the easement to give your client an unrestricted right of way.
  1. 5.
    However, ‘modify’ has a particular meaning for the purposes of section 181 of the Property Law Act 1974 (Qld) (the Act) only enabling the court to limit or restrain rights given under an easement.
  1. 6.
    Accordingly, the application under section 181 of the Act is entirely misconceived.
  1. Section 180 of the Act
  1. 7.
    It seems that your client should be seeking relief pursuant to section 180 of the Act.
  1. 8.
    However, the Supreme Court will not make orders under section 180 unless evidence is adduced that our client has refused to agree or accept the imposition of a statutory right of user - see section 180(3).
  1. 9.
    Our client has made it clear on numerous occasions that it is prepared to grant your client a right of way and seeks to have negotiations and discussions with your client in this regard.
  1. 10.
    You and your client have obstinately refused to have any discussions
  1. 11.
    Accordingly, your client is not at the present time entitled to any relief under section 180 of the Act.
  1. Offer in relation to your client’s Supreme Court application
  1. 12.
    With all due respect, your client’s approach to resolving this matter is not constructive.
  1. 13.
    We suggest that your client abandon all litigation and instead engage in reasonable and sensible discussions to resolve this matter.
  1. 14.
    We hereby offer that your application returnable before the Supreme Court of Queensland on 6 July 2023 be dismissed with no order as to costs. This offer will remain open until 4.00pm Friday 23 June 2023, following which counsel will be briefed for the application and material prepared. This letter will be used in support of an argument for indemnity costs against your client.
  1. 15.
    We await your prompt response. In the meantime, we reserve our client’s rights in all respects.”
  1. [17]
    The next day, on 22 June 2023, the two interlocutory applications were filed.
  1. [18]
    By the first application, Mr Odlin relevantly seeks leave to amend Annexure A to the originating application as follows:
  1. “AMENDED ORIGINATING APPLICATION
  1. To the respondent: TAKE NOTICE that the applicant is applying to the Court for the following orders:
  1. 1.
    orders pursuant to section 181 (1)(d) of the Property Law Act 1974 (Qld) that [Easement W]… be extinguished conditional upon the respondent granting the alternative easement as described by paragraph 15 of the affidavit of Christopher Brian Charles Odlin sworn 21 June 2023 and filed 22 June 2023;
  1. 2.
    in the alternative to order no. 1, orders pursuant to section 180(1) of the Property Law Act 1974 (Qld) that the Court declares the alternative easement as described by paragraph 15 of the affidavit of Christopher Brian Charles Odlin sworn 21 June 2023 and filed 22 June 2023;
  1. ….. .”
  1. [19]
    The alternative easement as described by paragraph 15 of the affidavit of Christopher Brian Charles Odlin filed 22 June 2023 is a reference to Easement X.
  1. [20]
    The second interlocutory application seeks the joinder of the Body Corporate “…. as a second applicant to the proceedings” pursuant to r 62 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”).
  1. [21]
    Following the filing and service of the interlocutory applications, there was an exchange of correspondence between the parties’ solicitors.
  1. [22]
    By a letter dated 23 June 2023, Mr Odlin’s solicitors relevantly repeated what was described as “our client’s earlier offer of an alternative easement” being Easement X.[10] The letter relevantly continued:[11]

“As to the directions sought for the conduct of our client’s section 181 application, we consider that this is a matter where the Court is likely to order, as is appropriate, the parties to attend mediation, and also to consult with Council as to any proposed alternative easements.

However, there is little point consulting with Council whilst your client’s position remains unclear, or if your client intends to oppose the proposed Easement X, or if it wishes to agitate for a different route, or even for Easement W to be restored. Should the matter fail to settle at mediation, it will then be appropriate for the Court’s consultative jurisdiction under section 181 to be engaged and for it to express a view on the alternative easement route that it intends to order upon extinguishment of Easement W”.

  1. [23]
    By a letter dated 30 June 2023, the respondent’s solicitors relevantly stated:[12]

“Our client has already indicated on numerous occasions that it is prepared to consider an alternative path that is similar to the path of Easement W or an existing path that your client has utilised in recent times which was identified in our earlier correspondence. That remains our client’s position. Your client refuses to engage with our client in relation to this sensible and fair position. Instead, your client puts forward a proposal that grants your client expansive new rights over an entirely different part of our client’s land, parallel to the Brisbane River.”

  1. [24]
    On 6 July 2023, the interlocutory applications came on for hearing in the applications list. By the time of their hearing, it had become common ground that Easement W is obsolete.[13] In this area of the law, easements are deemed obsolete within the meaning of that expression as it appears within s 181(1)(a) of the Property Law Act 1974 (Qld) (“the Property Law Act”), where an easement has become “impossible or impractical”[14] or where it had initial utility but has since fallen into disuse and lacks utility.[15] Hence, broadly put, an easement may be regarded as obsolete where it no longer fulfills a useful purpose.[16] It was also common ground that 99 River Road is relevantly land locked.[17]
  1. [25]
    The respondent’s position was that the two applications and the proceeding should be dismissed.[18]

Consideration

  1. [26]
    The proceeding in this Court is concerned with whether there should be a grant of leave to amend an originating process filed in the District Court. In the event leave is granted, an order is sought transferring the District Court proceeding to this Court. The High Court has observed that what ordinarily needs to be shown for leave to amend to be given “is that the controversy or issue [is] in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it”.[19]
  1. [27]
    As will be apparent, within a matter of a few months, Mr Odlin’s contentions have oscillated. Mr Odlin’s conduct of the District Court proceeding, and this proceeding, have not involved the expeditious and cost-efficient identification of real issues in dispute. The remedies he seeks in this Court bear no resemblance to the remedies he seeks in the District Court proceeding. He has relied upon two affidavits, none of which provide a cogent, readily understandable explanation for his changes in position within such a short period of time. In his first affidavit, he deposed that the contemplated transfer to this Court “… will mean that the only remaining substantive issue to be determined by my originating application is the section 181 application”.[20] It is inapt to describe that issue as a “remaining issue”. The District Court proceeding does not involve any issue under s 181, or indeed s 180, of the Property Law Act. In the District Court proceeding, injunctions are sought requiring the respondent to remove works from Easement W, precluding the performance of any further works and restoring access to Easement W. Compensation is sought for breaches of Easement W’s conditions. The proposed amendments said to justify a grant of leave and transfer to this Court, involve statutory remedies under the Property Law Act which, if available, would extinguish Easement W on conditions (s 181(1)(d)) or declare an alternative easement (s 180(1)). The statutory remedies are sought on the basis that Easement W is obsolete.
  1. [28]
    The proposed amendments to the originating application filed in the District Court do not involve or arise out of a controversy or real issue in existence in the District Court. It would be inconsistent with the objects of rule 5 to give leave to amend the originating application filed in the District Court to delete what is presently in contest about Easement W and add new causes of action based upon a different factual premise, namely that Easement W is obsolete. As Mr Odlin has effectively abandoned his contentions and claims in the District Court proceeding, it is more appropriate for the final disposition of that proceeding to be dealt with by the District Court. It would be contrived and artificial for this Court to grant leave to amend to run new cases in an effectively abandoned District Court proceeding and for the resurrected, amended proceeding to be then transferred to this Court.
  1. [29]
    There are other reasons why the relief sought by the interlocutory applications should be refused.
  1. [30]
    The proceeding in this Court seeks an order pursuant to s 27 of the Civil Proceedings Act 2011 (Qld) (“the Civil Proceedings Act”). Whilst r 10 UCPR may have required the proceeding to start by way of originating application, this Court retains a discretion under r 14 to require the proceeding to continue as if started by claim.[21] That discretion is clearly engaged where a proceeding is likely to involve substantial disputes of fact. In the present case, Mr Odlin sought leave to amend but on the stated basis that the proceeding “was a very simple matter”[22] and involved “no substantial factual dispute.”[23] He was adamant that the grant of leave to amend was to be made on the basis that it was inappropriate for the proceeding to be conducted in accordance with pleadings.[24] However, the affidavit material, and indeed some of Mr Odlin’s submissions, demonstrated that the proposed amendments might give rise to substantial disputes of fact. In this regard, the oral submissions made on behalf of Mr Odlin acknowledged that there was an unresolved issue as to the preferable route of any future easement and as to the amount of compensation that should be paid in respect of any future easement.[25] Mr Odlin’s affidavits described a proposal for an easement that had been prepared by him (a civil engineer) “and his other expert advisers” after they had spent “considerable time examining … access issues and [the respondent’s] interest in minimising disruption to its tenancies”.[26] That proposal did not involve any compensation being paid to the respondent and was put forward on the stated basis that the respondent may wish “to agitate for a different route or even for easement W to be restored”.[27]
  1. [31]
    Not only did a substantial factual controversy potentially await, but difficult legal issues might emerge, depending on the facts found. Mr Odlin’s claimed entitlement to an order under s 181(1)(d) of the Property Law Act was expressed in terms that Easement W be extinguished “conditional upon the respondent granting [an alternative easement]”. Mr Odlin submitted that the availability of that form of relief was countenanced by Manly Properties Pty Ltd v Castrisos.[28] That case involved a similar provision to s 181 of the Property Law Act, s 89 of the Conveyancing Act 1919 (NSW). The facts involved an application by an owner of servient tenements to extinguish easements of right of way on the basis that another easement would be substituted or on the condition that the servient tenements granted a different easement. In that case, the plaintiff did not seek a formal order.
  1. [32]
    Holland J there observed:[29]

“The plaintiff desires to have the view of the court as to what would be considered in the circumstances of the case a fair substitution for the existing easement which would both advance the interests of the plaintiff and fully protect the interests of the defendants. That being so, the jurisdiction to make the actual order is not presently invoked. I can see no sensible reason why the court should not be prepared to entertain an application put on this basis.

In my opinion, it is open to the court to deal with an application so put and to indicate what order the court would be prepared to make in the event that certain conditions were fulfilled. I think that that is only procedurally different from an order that an easement be extinguished subject to certain events occurring, such as by postponing the date on which the extinguishment should take effect or by ordering extinguishment subject to certain specified events that were capable of being certainly established having taken place. I think it would be an undue restriction on the jurisdiction of the court under a section such as this to hold that the only order that in effect the court could make would be an order for extinguishment after the circumstances justifying it had already occurred.”

  1. [33]
    Later, Holland J continued:[30]

“That brings me to the question of what course the court ought to take in the circumstances that presently exist in these proceedings. I would indicate that, in my view, the court would be justified in extinguishing the existing easement, if it were replaced by an easement as set out in the plan 314/18 subject to there being no column supporting the building at the southern or the western section of the boundaries of lot 1 that are shown on the plan without the consent of the defendants; subject to there being no constructions on or at the periphery of the turning area as shown in the plan which would impede the manoeuvring of vehicles within that area; and subject to a 12 feet minimum height limitation. I would reserve for the present the question whether any provisions ought to be made or conditions laid down in respect of lighting of the covered areas.

It would also be a condition of any order being made that at the time it was made either the consents of all those affected by the extinguishment of the existing easement were forthcoming or full notice of the proposals had been given to them with an invitation to appear and present any objections, if the objectors wished so to do.

…

It would seem to me, therefore, that the appropriate course to take is simply to adjourn these proceedings either to a date to be fixed or generally, with liberty to restore, in order to give the plaintiff such time and opportunity as the plaintiff needs to endeavour to obtain the appropriate approval of the local council.”

  1. [34]
    In Ex parte Proprietors of “A Veril Court” Building Units Plan No. 2001,[31] Matthews J considered an application by the owner of a servient tenement to extinguish or modify a registered easement subject to further provisions restricting the user of the land subject to the easement. His Honour relevantly observed:

“I am satisfied that the easement does secure to the respondent practical benefits of substantial value and I am not satisfied that money would be an adequate compensation for the loss of it. I therefore think that if relief is to be granted it must be granted pursuant to s 181(1)(d) of the Act with some provision made pursuant to s 181(3). In contemplating that s 181(1)(d) is available in this way, I am not necessarily disagreeing with the decision of Menhennitt J in Re Alexandra [1980] VR 55 wherein His Honour accepted the earlier decision of the Victorian Full Court to the effect that the test in relation to provisions comparable with s 181(1)(b)(i) and s 181(1)(d) is similar. I think that the two sections may be considered from different points of view and that s 181(1)(d) has room for application in circumstances not available in respect of the other subsection. This is because I have accepted the correctness of the decision of Holland J in Manly Properties Pty Ltd v Castrisos [1973] 2 NSWLR 420. In that case His Honour came to the conclusion that the comparable section of the Conveyancing Act 1919 (s 89) gave to the Court, jurisdiction to indicate that it would order extinguishment of an existing easement if it were replaced by another easement subject to suitable conditions. At first sight this seems to involve a very liberal construction of the section, but in my view with respect, such a construction is necessary to prevent the legislative intent as expressed in s 181(1)(d) from being stultified.

The applicant’s position, it may be said, is brought about by its own act and Fletchers should be considered as being the author of its own wrong. It has acquired properties one of which is subject to the relevant easement and it has now found that the easement is an obstacle to the proposed high rise planning. Section 181 is sought to be used to overcome that obstacle. One might ask the question ‘was it intended that the section be permitted to so operate?’. The terms of the section are certainly wide enough, if one of the conditions of its operation be satisfied, but there is still, before grant of relief pursuant to it, a discretion, and obviously what has been done by Fletchers is one of those matters which should be considered before that discretion is exercised in favour of an applicant in the position of the present applicant. Having regard to the proprietary right of the respondent, I would add that before the discretion be exercised in an applicant’s favour, there should be a significant preponderance of circumstance on its side. In this particular case and when one bears in mind the relevant positions of the parties and the offer made by the applicant, I think that there is such a significant preponderance; an easement located and widened as proposed will serve the respondent almost if not as well as the present easement, and the $15,000 proposed to be paid by the applicant to the respondent represents on the evidence before me, the value of the easement. I propose therefore, subject to performance of the conditions involved in the applicant’s offer, to order extinguishment of the easement and I will further order that the applicant pay the respondent’s costs of and incidental to application to this date to be taxed.”

  1. [35]
    I was not able to find a case where an obsolete easement has been extinguished under s 181 of the Property Law Act at the behest of the owner of the dominant tenement on the condition that the servient tenement grant a new easement. There must be some doubt as to whether the jurisdiction recognised in Proprietors of “A Veril Court” would extend to the present situation. In any event, if it does, the power conferred by s 181 is discretionary. At the discretion stage, it would be necessary for Mr Odlin, having regard to the proprietary rights of the respondent over its land affected by the proposed easement, Easement X, in circumstances where easement W is obsolete, to demonstrate a significant preponderance of facts in favour of the grant of Easement X. However, Easement X is proposed by Mr Odlin in circumstances where he does not propose to pay any compensation and accepts that the respondents’ position is yet to be clarified and it remains appropriate for the parties to consult with Council as to any proposed alternative easements. Mr Odlin’s affidavit material does not reveal a significant preponderance of facts in favour of the grant of Easement X. On the basis of the affidavit material, and noting that he disclaimed any intent to conduct the proceeding by way of pleadings, there is a fanciful prospect that the Court would exercise the so-called consultative jurisdiction in favour of Mr Odlin’s Easement X. He should not be given leave to amend to run the case presently revealed by his affidavit material because I consider the case as presently formulated to be obviously untenable and bound to fail. [32] To the extent that Mr Odlin seeks to engage the consultative jurisdiction of the Court, his attempt is clearly premature. The issues as between the parties have not crystallised through discussion and negotiation. Mr Odlin’s solicitors’ correspondence expressly acknowledged that the consultative jurisdiction might be appropriately engaged at a future point in time after the respondent’s position had been clarified and the Council’s views ascertained.[33] Further, Mr Odlin’s affidavits do no address the fundamental requirements of s 180(3) of the Property Law Act.
  1. [36]
    A striking aspect of the application to join the Body Corporate as an applicant was that it was not supported by an affidavit sworn by any member of the Body Corporate.
  1. [37]
    In his first affidavit, Mr Odlin materially deposed:

“I am on good terms with the members of the [Body Corporate]. I have come to [sic] arrangement with them, and with my solicitors, for them to be joined as a party to the proceedings, and that they will also be represented by my solicitors, on the basis that there is no actual conflict as they will most likely consent to any section 181 orders regarding the disposition of Easement W”.[34]

  1. [38]
    In his second affidavit, Mr Odlin deposed “I am also authorised to swear this affidavit on behalf of [the Body Corporate] in support of its application to join these proceedings as the second applicant”.[35] The basis for Mr Odlin’s authority was not explained. He further relevantly deposed:[36]

“On 30 June 2023 at approximately 1.40pm, I telephoned Steven Leslie Hoye, who was the Chairman of the Body Corporate and whom I have personally known for over 20 years, and he told me, and I believe it to be true, that:

  1. All Body Corporate members (four in total) had passed a special resolution and voted unanimously in favour of joining these proceedings.
  2. The Body Corporate wishes to join as a second applicant and seeks the same relief as me, namely orders pursuant to section 181(1)(d) of the Property Law Act… extinguishing obsolete Easement W on its and the respondent’s land, on the condition that a new access and services easement, described by me as Easement X be granted in favour of my property at 99 River Road…; and
  3. The Body Corporate is also the Dominant Tenement of existing Easement P on the respondent’s land, which, as deposed to below is proposed to be utilised by an overlap with Easement X, and it also consents to any orders to that effect Affecting Easement P.”
  1. [39]
    No explanation was offered as to why an affidavit sworn by a member of the Body Corporate was not provided to the Court. The respondent’s solicitors’ correspondence dated 28 June 2023 had noted the absence of any such affidavit.[37] In my consideration, the state of the evidence in support of the application for joinder was unsatisfactory. Although Mr Odlin submitted that he and the Body Corporate sought the same relief, the evidence did not directly address whether the Body Corporate sought the alternative order pursuant to s 180 of the Property Law Act. Further, it was unclear as why it was in the Body Corporate’s interests to positively contend for the orders sought by Mr Odlin, as distinct from being a respondent to the proceeding. I am not satisfied that the Body Corporate has authorised the application and/or given proper consideration to whether the Body Corporate’s interests are likely to align with Mr Odlin’s interests in all respects. I am further not satisfied that the Body Corporate has been properly informed about the likely issues involved in the proceeding and understands the possible costs consequences of being joined as an applicant, rather than as a respondent, to the proceeding.

Orders

  1. [40]
    The orders I make are as follows.
  1. The application filed 22 June 2023 is dismissed.
  1. The application filed 22 June 2023 is dismissed.
  2. The originating application filed 8 June 2023 is dismissed.
  1. [41]
    I will hear the parties as to costs.

Footnotes

[1]Affidavit of Christopher Brian Charles Odlin filed 22 June 2023 [9].

[2]Ibid [13].

[3]Ibid [13].

[4]Ibid [18].

[5]Ibid [19]; Annexure A to Originating Application filed 8 June 2023 [2] (the relief sought in the District Court being apparent from the amendments sought to be made with leave).

[6]Annexure A to Originating Application filed 8 June 2023 [3] and [4] (the relief sought in the District Court being apparent from the amendments sought to be made with leave).

[7]Affidavit of Christopher Brian Charles Odlin filed 22 June 2023 [18].

[8]Ibid [21].

[9]Ibid.

[10]Affidavit of Christopher Brian Charles Odlin filed 5 July 2023, Ex CBCO-4 p 14.

[11]Ibid p 17.

[12]Affidavit of Angus Hay Campbell filed 5 July 2023 Ex AHC-5.

[13]T1-6.27; T1-19.05.

[14]Re Wenck & Anor [2004] QSC 15.

[15]Averono & Anor v Mbuzi & Anor [2005] QSC 6.

[16]Effeney v Millar Investments Pty Ltd [2011] NSWSC 708 at [207].

[17]T1-19.22; T1-7.27.

[18]T1-25.27.

[19]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 208–9 [82].

[20]Affidavit of Christopher Brian Charles Odlin filed 22 June 2023 [21].

[21]UCPR r 14(2).

[22]T1-7.28.

[23]T1-6.11.

[24]T1-5.36.

[25]T1-6.40-T1-7.05.

[26]Affidavit of Christopher Brian Charles Odlin filed 5 July 2023 [14].

[27]Ibid Ex CBCO-4 p 17.

[28][1973] 2 NSWLR 420.

[29]Ibid at 425.

[30]Ibid at 425–426.

[31][1983] 1 Qd R 66.

[32]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128–9.

[33]Affidavit of Christopher Brian Charles Odlin filed 5 July 2023, Ex CBCO-4 p 17.

[34]Affidavit of Christopher Brian Charles Odlin filed 22 June 2023 [22].

[35]Affidavit of Christopher Brian Charles Odlin filed 5 July 2023 [1].

[36]Affidavit of Christopher Brian Charles Odlin filed 5 July 2023 [2].

[37]Affidavit of Christopher Brian Charles Odlin filed 5 July 2023, Ex CBCO-4 p 35.

Close

Editorial Notes

  • Published Case Name:

    Odlin v River Rd Investments Pty Ltd

  • Shortened Case Name:

    Odlin v River Rd Investments Pty Ltd

  • MNC:

    [2023] QSC 182

  • Court:

    QSC

  • Judge(s):

    Kelly J

  • Date:

    18 Aug 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
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
1 citation
Jump To
Cite 1 - (2009) HCA 27
Averono v Mbuzi [2005] QSC 6
2 citations
Jump To
Cite 1 - [2005] QSC 6
Cite 2 - [2005] QSC 6
Effeney v Millar Investments Pty Ltd [2011] NSWSC 708
2 citations
Jump To
Cite 1 - [2011] NSWSC 708
Cite 2 - [2011] NSWSC 708
Ex parte Proprietors of "Averil Court" [1983] 1 Qd R 66
2 citations
Jump To
Cite 1 - [1983] 1 Qd R 66
Cite 2 - [1983] 1 Qd R 66
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
2 citations
Jump To
Cite 1 - (1964) 112 CLR 125
Cite 2 - (1964) 112 CLR 125
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
1 citation
Jump To
Cite 1 - [1964] HCA 69
Manly Properties Pty. Ltd. v Castrisos [1973] 2 NSWLR 420
3 citations
Jump To
Cite 1 - [1973] 2 NSWLR 420
Cite 2 - [1973] 2 NSWLR 420
Cite 3 - [1973] 2 NSWLR 420
Re Alexandra (1980) VR 55
1 citation
Jump To
Cite 1 - (1980) VR 55
Re Wenck [2004] QSC 15
2 citations
Jump To
Cite 1 - [2004] QSC 15
Cite 2 - [2004] QSC 15

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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