Wirkus and Anor v Wilson Lawyers [2013] HCATrans 243 (11 October 2013)

Last Updated: 17 October 2013

[2013] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B19 of 2013

B e t w e e n -

MICHELLE WIRKUS

First Applicant

RANDOLF WIRKUS

Second Applicant

and

WILSON LAWYERS

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 11 OCTOBER 2013, AT 12.41 PM

Copyright in the High Court of Australia

MR N.M. COOKE, QC: If the Court pleases, I appear with my learned friends, MR S. DI CARLO and MR B. McGLADE, for the applicants. (instructed by Forbes Dowling Lawyers)

MR M.D. HINSON, QC: If the Court pleases, I appear with MR R.P.S. JACKSON, for the respondents. (instructed by Brian Bartley & Associates)

FRENCH CJ: Yes, Mr Cooke.

MR COOKE: Your Honour, this case arises out of the subdivision of two adjacent lots in the suburb of Indooroopilly in Brisbane. The council approved a subdivision for group titles of lot 2 on 9 July 1987. They were made subject to conditions, one of which is particularly relevant here. The conditions appear at page 20 of the application book at about line 40:

(b) The subdivider to grant access easement rights over the accessway required by condition (g) in favour of Lot 1 on Registered Plan 202855.

...

(g) The subdivider is to provide a single common accessway to Lots 1 and 2 on registered Plan 202855 generally as indicated on drawing - - -

FRENCH CJ: So the grant of easement was executed, the easement was not registered, the council issued its certificate, the subdivision is not reversible?

MR COOKE: Yes.

FRENCH CJ: That is the sequence that we get to?

MR COOKE: Yes. Now, your Honour, then what happened was that the body corporate landscaped the accessway and litigation resulted from that. The litigation was ultimately settled in 1907 and the body corporate agreed to provide an easement and that was done. Now, your Honour, subsequent to that it was discovered that this conditional approval and the unregistered easement existed and the applicant’s solicitors had failed to discover those facts. It was alleged then in the proceedings with which we are concerned, negligence against the solicitor, that if he had discovered the proper material the easement would have been more favourably obtained.

Your Honour, the primary judge, Justice Peter Lyons, gave summary judgment in favour of the respondents on the basis that the body corporate was never bound to grant an easement in favour of lot 1. The findings of the Court of Appeal which give rise to the application for special leave are set out in page 21 of the application book at paragraph [15], and the court says, or Justice McMurdo who wrote the leading judgment:

Prior to those enactments –

that is of 1990 and 1997 –

there was no law by which conditions of a planning or subdivisional approval were attached to the subject land and made binding upon subsequent owners. So there was no law by which the body corporate here was bound to grant a registered easement to remedy the non-registration of the instrument which had been executed by –

the development company. Your Honours, we challenge that on the basis that it seems to assume and make a decision contrary to a line of historic cases in the Land and Environment Court, both in New South Wales and elsewhere, that when an approval is granted subject to conditions, the approvals run with the land and they do not require statutory authorisation to support that proposition.

The Court of Appeal in Queensland in dealing with this case in fact became mesmerised by this legislation of 1990 as being the only first legislation which enabled approvals to run with the land, which in our submission was not the case. The case then got bogged down in the question of statutory interpretation of some of the provisions of the 1990 Act. Your Honours - - -

FRENCH CJ: Now, the approval is given as the exercise of a statutory power and the conditions - - -

MR COOKE: Under an existing town plan, yes - - -

FRENCH CJ: Yes, that is right, but we are talking about a statutory power and the conditions attaching to the approval are attached in the exercise of a statutory power. Now, the contention that, to use your expression, the approval runs with the land, that has to be a submission or a contention, does it not, about the effect of the relevant statute and/or its successors?

MR COOKE: Well, no, not entirely, your Honour, because although the approval is granted under the town plan which is a statutory instrument, there was nothing in the town plan which says that the approval ran with the land for the benefit of successors, it was the courts that imposed that as a condition that ran with the land on the basis that because these public planning authorities were exercising broad community interest legislation, but the legislation itself, prior to 1990, did not specifically provide that approvals would run with the land and a new offer for the benefit of successors and - - -

FRENCH CJ: So if there is a condition attaching to an approval that requires the owner of the land the subject of the relevant approval to do something of a continuing nature, for example, or to be subject to some covenant of a continuing nature, that condition binds a successor in title but the legal rule by which it binds the successor in title is not a common law rule, is it, it is simply something that the courts, on your submission, have found implicit in the statutory scheme?

MR COOKE: Yes.

FRENCH CJ: In other words, it is a question of statutory implication in the earlier run of decisions to which you refer?

MR COOKE: Well, that is difficult to say, your Honour, because the cases do not refer to the statute, they simply say if an approval is given under that statutory plan then it.....the benefit.

GAGELER J: How do you wish to put it in an appeal?

MR COOKE: Your Honour, we have suggested in the way in which we have formulated our special leave point. The special leave point is to determine whether an approval granted under a statutory town planning scheme can attach to the land and.....for the successors, notwithstanding that there is no specific provision in the statute providing for that situation to take place.

GAGELER J: You wish to advance that in respect of an Act enacted in 1980 and repealed in 1990?

MR COOKE: Well, your Honour, the problem with that was that the town plan under which the approval was granted was 1987 and a new town plan in 1988. That was repealed by the Integrated Planning Act 1990 which was the Act which specifically provided for the title to be held for the benefit of the successors. Now, your Honour, the way the construction of the section 1990 Act it purported to preserve approvals which had been given to the town plan which was immediately enforced prior to the coming into effect of the 1990 Act and that, of course, was a later town plan from the one under which this particular approval had been granted.

So, strictly speaking, it may not have fallen under the transitional and saving provisions of the 1990 Act because it was earlier than that. With regard to the approval and the condition, in our submission, it is a continuing obligation. It is not something which was spent, as it were, once the subdivision into the group titles takes place because it is a continuing obligation on lot 2 to provide the access way from lot 1 to the road and that - - -

GAGELER J: What is the source of that continuing obligation? Is it statutory?

MR COOKE: Your Honour, it is a common law principle that where the statute is silent these approvals run with the land. The principle, if I could say the historic principle of it, has been set out in the dissenting judgment of his Honour Justice Kirby in the Hillpalm v Heaven’s Door Case reported in [2004] HCA 59; 220 CLR 472. I refer particularly to what his Honour said in paragraph 63 of his reasons which is at page 182 of the application book, section 71 which is at page 184 of the application book, paragraph 73 which is in page 185 of the application book and to the quotation that he gives from Chief Justice Spigelman in paragraph 89 of the reasons which appears in 189 of the application book, and if I can just go to that. That is not the application book, I am sorry, that is the case booklet.

GAGELER J: Page 501, I think, of the Commonwealth Law Report.

MR COOKE: Yes. I am just having a bit of trouble with my book here, 189.

GAGELER J: The passage appears to be about the construction rather than the effect of the document in question.

FRENCH CJ: The generic statement about development consents, is it not?

MR COOKE: Yes, but the question is of – but under that quotation from Chief Justice Spigelman, that part of the decision, page 501, paragraph 89, he said that it was:

“A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has . . . an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees . . . it is equivalent to a document of title. It must be construed in accordance with its enduring functions.”

So a question of construction there, your Honour, is a question of construction of the condition or the approval, not of any statute concerned with its being granted.

FRENCH CJ: Of course, there would be some conditions that, as it were, terminate. They are satisfied, and they are history, as it were, so there is no - - -

MR COOKE: Yes, there would be, but in this case it is different because you have got an obligation, continuing obligation, to provide accessway from one to the other, and that, in our submission, on the general principles of common law as enunciated in these earlier traditional cases it would mean that every part of lot 2 would have the obligation to provide the easement and the accessway which was required by the condition. The fact that the subdivision into the lots, the group title lots, has taken place, and as the court said cannot be reversed, does not attenuate the continuing obligation on the part of the current owners of that to provide the access.

Now, your Honour, in the Hillpalm Case the majority was McHugh Acting Chief Justice, Hayne and Heydon JJ; it is different from this case because their Honours in that case found that there was no condition, that it was not a conditional approval, and they dealt with it on the basis of indefeasibility of title which was not a consideration which was raised either by the primary judge or by the Court of Appeal in this case. Interestingly enough, in the majority they did refer – although they said it did not give a right in rem against subsequent owners, they did describe rights in personam in paragraph 54 of their joint judgment, so that there is still available to a person such as the applicant in this case to bring an action in personam against the body corporate who enforce the condition.

FRENCH CJ: Well, now, the condition – the owner originally executed a grant of easement but it was not registered.

MR COOKE: Your Honour, that did not satisfy the obligation to provide continuing access.

FRENCH CJ: In other words, the continuing obligation which you assert is that somebody – the current owner has a continuing obligation to grant a registrable easement?

MR COOKE: And to provide access, accessway, yes.

FRENCH CJ: But all of that arises out of the statutory scheme and it may be that some of the authorities to which you have referred are informed by a principle of construction of broad application, but it always depends upon the particular statutory setting, does it not?

MR COOKE: Well, with respect, no, your Honour, because the common law rule, if I call it that - - -

FRENCH CJ: Well, you are calling it a common law rule now?

MR COOKE: Well, a judge-made rule, anyway – does not depend on the statute in the sense that your Honour is putting it. It does depend on the statute because a planning and environment requires the town plan which is the statutory instrument, but once the decision is made under that, the approval and what the effect of the approval is, is the subject of the judge-made law which says that because of the importance of these planning aspects and community interests, it is not just the owner of the land who is concerned, but other people who are involved, and therefore because of that it is appropriate that these approvals run with the land and can be enforced for the benefit not only of the landowner but for the community at large.

GAGELER J: Now, I am trying to understand your submission. You are saying that you have a statutory approval. It gets picked up by the common law so that it runs with the land but creates rights in personam. Is that the way it works?

MR COOKE: Yes. The mere fact that the 1990 Act is the first time in which legislative imprimatur is put on the concept of the development application running with the land, does not affect the approvals that were granted prior to that because the statute does not say anything about them. They continue in force.

FRENCH CJ: I think your time is up now, Mr Cooke. Sorry, did you want to say something else? Thank you. We will not need to trouble you, Mr Hinson.

In our opinion, the decision of the Court of Appeal depends upon the construction of particular statutory provisions. The case is not one which gives rise to a question which would warrant the grant of special leave. Special leave will be refused with costs.

The Court will now adjourn until 1.30.

AT 1.03 PM THE MATTER WAS CONCLUDED