In brief

The case of Lambert Property Group Pty Ltd v SJ Daly & Ors [2015] QPEC 4 concerned an application by the Dalys to strike out an originating application made by Lambert Property Group Pty Ltd on the basis that its originating application had not been progressed. Lambert opposed the application on the grounds that it lacked merits or, alternatively should be done formally including a timetable for filing and serving of material by both parties.

The court found that a timetable such as that proposed by Lambert would involve the parties in further delay and expense. Given that Lambert would have been aware of the factual matters and that there was no material surprise or prejudice on Lambert, the court accepted that the Dalys could make this application.

The court concluded that Lambert’s originating application should be struck out since it would not be able to sensibly prosecute its application until its Supreme Court action had resolved and it would be unfair to the Dalys by keeping the legal proceeding on foot with such uncertainty particularly where there was no fault of the Dalys.

Lambert considered making changes to its development involving land owned by the Dalys and sought declaratory relief that it did not require owner’s consent from the Dalys for its lodgement of a development application or changes to the development

Lambert was carrying out a major multi-unit residential development at Kangaroo Point. The development land owned by Lambert had the benefit of an easement for a right of way over land owned by the Dalys.

The proposed development was the subject of two Planning and Environment Court appeals in which the Dalys were submitters opposing to the proposed development. Both appeals were ultimately resolved through negotiations.

After the resolution of the appeals, Lambert considered making changes to stage 3 of the proposed development by way of a permissible change application. The Dalys made it clear that it would oppose any such application and would not consent to the changes or any new development application involving its land the subject of the benefiting easement.

Lambert by way of an originating application in the Planning and Environment Court sought declaratory relief that owner’s consent from the Dalys was not required “for the lodging of a development application nor for the lodging of an “alternative” development application as particularised … or some further iteration of that development”.

The Dalys’ strike out application was dismissed by the court but the court foreshadowed that it may end the proceedings if the nature of the actual form of the development Lambert intended to rely upon for its application remained uncertain when it next came back before the court

Since Lambert's application was made, it had been adjourned with the Daly’s consent on a number of occasions. In July 2014, Lambert was advised by the Dalys that it would not consent to any further adjournments and would bring a strike out application if the application was not withdrawn.

The Dalys subsequently brought a strike out application which was heard by the court in August 2014. Whilst the strike out application was dismissed, the court foreshadowed that if the nature of the actual form of the development Lambert intended to rely upon for its application remained uncertain when it next came back before the court, the court may end the proceedings and would be minded to do so based on an oral strike out application.

The court accepted the Daly’s renewed application since Lambert would have been aware of the factual matters and that there was no material surprise or prejudice on Lambert

In February 2015, the Dalys made an application to renew the strike out proceeding. The Dalys’ application was premised on the allegations that Lambert still had not properly identified a defendable form of the development, there had been little progress made by Lambert on its application and the Dalys suffered prejudice by continuing to incur costs of the proceeding.

It was further alleged by the Dalys that Lambert's application would be further delayed as it seemingly depended upon a proceeding in the Supreme Court for a statutory easement against the Body Corporate for the neighbouring land filed by Lambert in November 2014.

Lambert resisted the application and submitted that it denied Lambert's ability to fairly consider its position and evidence it required to call in response. It was further submitted that the strike out application should be done formally including a timetable for filing and serving of material by both parties.

The court disagreed with Lambert's submissions and considered that the proposed timetable would involve the parties in further delay and expense. Further, the court was of the view that Lambert would have been aware of the factual matters, in particular the Daly’s position and that there was no material surprise or prejudice on Lambert.

The court accepted the strike out application be made by way of an oral application.

Lambert's application was struck out as it would be unfair to the Dalys to allow the proceeding to continue with a state of uncertainty where the delay was of no fault of the Dalys

The court proceeded to consider the merits of the strike out application. In doing so, it considered the relevant factors outlined in the Queensland Court of Appeal decision in Tyler v Custom Credit Corp Ltd & Ors [2008] QCA 178 that the court took into account when determining whether the interests of justice required a case to be dismissed.

It was observed by the court that Lambert's application would be expected to have been prosecuted and determined. The Dalys had been prejudiced by the continued delay by incurring costs of the proceedings. The court agreed with the Dalys' submissions that “the Dalys are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its potential consequences hanging over their heads … in circumstances where the facts that are intended to be relied on by LPG in support of its application are in apparent continual state of flux”.

In the court's view, the continued delay in prosecuting Lambert's application was mainly attributed to its difficulty in identifying a defendable form of the development and was of no fault of the Dalys. Lambert had not provided a satisfactory explanation for the delay and by implication was in breach of its implied undertaking to the court and to the Dalys to proceed with the matter expeditiously.

Based on the material before the court, it was concluded that Lambert's application would not be able to be sensibly prosecuted until the Supreme Court action was resolved, which could take over several months. The outcome of the Supreme Court action would also affect the factual matters which Lambert's application was relied on.

Given that it would be unfair to the Dalys to allow the proceeding to continue with a state of uncertainty, and that the strike out application would not prevent Lambert to commence fresh proceedings in the future, the court dismissed Lambert's application.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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