Australian Golf Management Corporation Pty Ltd v Logan City Council [2023] QSC 222

1 SUPREME COURT OF QUEENSLAND CITATION: Australian Golf Management Corporation Pty Ltd v Logan City Council [2023] QSC 222 PARTIES: AUSTRALIAN GOLF MANAGEMENT CORPORATION PTY LTD (applicant/plaintiff) v LOGAN CITY COUNCIL (respondent/defendant) FILE NO/S: BS5779 of 2019 DIVISION: Trial Division PROCEEDING: Interlocutory application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 9 October 2023 DELIVERED AT: Brisbane HEARING DATE: 27 September 2023 JUDGE: Hindman J ORDER: Rule 376(4)(b) UCPR not being satisfied, the applicant’s application for leave to amend the claim and statement of claim to include the indemnity claim is dismissed CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – AMENDMENT – where plaintiff made an application seeking the court’s leave to file an amended claim and second further amended statement of claim – where the proposed amendments introduced a new cause of action described as the indemnity claim – where the indemnity claim is out of time – where leave is required for the proposed amendments – whether the new cause of action arises out of the same or substantially the same facts as a cause of action for which relief is already claimed Baker v Hallett; Baker v Pattison; Baker v James [2004] QSC 132 Draney v Barry [2002] 1 Qd R 145 Thomas v State of Queensland [2001] QCA 336 Acquisition of Land Act 1967 (Qld) Uniform Civil Procedure Rules 1999 (Qld), rr 375, 376(4) 377, 378 COUNSEL: M Hodge KC and S Gibson for the applicant/plaintiff -- 1 of 7 -- 2 D Clothier KC and E Hoiberg for the respondent/defendant SOLICITORS: Shand Taylor for the applicant/plaintiff Clayton Utz for the respondent/defendant Introduction [1] The plaintiff made an application, inter alia, that sought the court’s leave to file an amended claim and second further amended statement of claim that included a new cause of action described as the indemnity claim. [2] The court’s leave was required for three reasons: (a) the indemnity claim is agreed by the parties to be a new cause of action that is out of time and so there is a requirement for leave pursuant to r. 376(4) UCPR; (b) any amendment of a claim (including to include a new cause of action) requires leave under rr. 375 and 377 UCPR; (c) an order of Brown J of 8 June 2023 (varied on 21 July 2023) provided that no amended statement of claim was to be filed by the plaintiff except with the leave of the court. [3] On 27 September 2023 after hearing the application, I dismissed this part of the application and indicated I would later deliver these reasons. [4] The new cause of action that is out of time, namely the indemnity claim, does not arise out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the plaintiff. For that reason, the court’s discretion to give leave to make the amendments to plead the indemnity claim does not arise under r. 376(4)(b) UCPR and the application must be dismissed. [5] If the court’s discretion had been enlivened, I would have adjourned this part of the application to allow the plaintiff additional time to replead the indemnity claim, before deciding the application. I consider that it would not have been appropriate to give leave to amend to include the indemnity claim in its presently proposed form (see r. 376(4)(a) UCPR) as it suffers from significant pleading deficiencies – particularly in respect of the pleading of causation.1 But those deficiencies may have been able to be addressed by the plaintiff in a way that would make it appropriate to further consider if leave to amend should be granted as sought by the plaintiff (noting that the other grounds advanced by the defendant for opposing the application would then also have to be decided). I appreciate that any such adjournment would have been another very significant indulgence to grant to the plaintiff against the history of the proceeding. However, I consider that the discretion then required to be exercised would be best considered in the context of a properly pleaded proposed amendment. The requirement of r. 376(4)(b) UCPR [6] It is a requirement of a grant of leave to amend to include a new cause of action where the limitation period has expired (but was current at the date the proceeding commenced) 1 Including because the defendant’s works relevant to the indemnity claim could only be a subset of the defendant’s works relevant to the existing causes of action – both in terms of time and location. -- 2 of 7 -- 3 that the new cause of action arises out of the same facts or substantially the same facts as a cause of action for which relief has already been claimed in the proceeding by the party applying for leave to make the amendment: r. 376(4)(b) UCPR. [7] The phrase “substantially the same facts” was considered by Thomas JA in Draney v Barry [2002] 1 Qd R 145 at [57]: I do not think that “substantially the same facts” should be read as tantamount to the same facts, and consider that the need to prove some additional facts is not necessarily fatal to a favourable exercise of discretion under r 376(4). If the necessary additional facts to support the new cause of action arise out of substantially the same story as that which would have to be told to support the original cause of action, the fact that there is a changed focus with elicitation of additional details should not of itself prevent a finding that the new cause of action arises out of substantially the same facts. In short, this particular requirement should not be seen as a straitjacket. [8] Holmes J approved of that approach in Baker v Hallett; Baker v Pattison; Baker v James [2004] QSC 132 at [43], granting leave to amend where it was considered that the additional cause of action was “of substantially the same story with additional facts and a change of focus”. See also what is meant by “story” in Thomas v State of Queensland [2001] QCA 336 at [19]. The relevant facts pleaded in relation to the existing cause of action [9] The plaintiff’s existing causes of action contained in the pleadings are for breach of lease (namely, the covenant of quiet enjoyment) and trespass. [10] The existing pleadings disclose: (a) the plaintiff was the lessor of land comprising a golf course; (b) the defendant carried out works associated with the installation of sewer lines through part of the land between 31 May 20132 and November 20153; (c) key to the allegation of breach of lease and trespass: (i) the plaintiff says the defendant had no lawful entitlement to carry out those works; (ii) the defendant says it was lawfully entitled to carry out those works under the terms of an easement (the Second Easement) that it acquired under the provisions of the Acquisition of Land Act 1967 (a notice of intention to resume was dated 13 December 2013; gazettal of that notice occurred on 14 September 2014); (iii) the plaintiff denies the validity of the Second Easement, (d) the plaintiff alleges the conduct of the defendant about the defendant’s works4 constituted a breach of lease and a trespass (FASOC, [67A] and [68]); 2 FASOC, [21]. 3 FASOC, [65]. 4 Identified in FASOC, [67A] and [68] but query whether the references to [47B], [47C(c)] and [61] are properly included as those paragraphs do not appear to be relevant conduct by the defendant. -- 3 of 7 -- 4 (e) the consequences of that conduct are pleaded by the plaintiff in FASOC [68A] and [69]; (f) one of the consequences of that conduct is pleaded by the plaintiff in FASOC [69(i)] to be that particular parts of the golf course affected (damaged) by the defendant’s works were only partly, and not fully, rectified by the defendant;5 (g) the consequences pleaded at FASOC [69(a) to (i)] seem to lead to the matters pleaded in FASOC [69(j) to (n)] (although only expressly stated in FASOC [69(j)]), which appear to be more indirect losses; (h) the FASOC then identifies certain rectification costs incurred, namely: (i) rectification costs incurred by the plaintiff of approximately $2.1m (FASOC, [69A]); (ii) rectification costs incurred by Meadowbrook of approximately $6.1m (FASOC, [70]), (i) the first of those rectification costs finds it way into the plaintiff’s claim for loss and damage at FASOC [70B]; (j) there is then a claim for some unpaid rent (FASOC, [71(a)]) and I have permitted an amendment which claims, effectively, a loss of market rent (FASOC, [71(b)]) (which would encompass any reduced rent accepted in the early lease period as set out in FASOC, [71(b)(ii)] particulars). That latter claim is as yet unquantified. The indemnity claim [11] The plaintiff’s alleged right to indemnity arises pursuant to the terms of the notice of intention to resume dated 13 December 2023 and the subsequent gazettal of that notice on 14 September 2014 pursuant to which the Second Easement was taken. [12] As identified at paragraph [10](c) above, the existence and some of the terms of the notice to intention to resume are presently pleaded in both the further amended defence6 and the reply to the further amended defence.7 However, the indemnity term is not presently pleaded. The relevant term is clause 6 that provides: Council may use adjacent land 6.1 The registered proprietor hereby gives express permission (which permission is hereby declared to be irrevocable) to the Council and the Council’s agents and if necessary with vehicles, machinery and equipment of any description whatsoever and whether laden or unladen to come onto and use such land of the registered proprietor immediately adjacent to the easement as may be occasionally required by the Council in the exercise of or incidental to its sewerage powers and in this regard the registered proprietor hereby confers on the Council and the Council’s agents all of the rights, powers and liberties mentioned in clauses 1 and 5 of this easement, so long as such rights, powers and liberties are not exercised or utilised on a permanent or prolonged basis. 5 It is difficult to see how that is a consequence of the alleged unlawful conduct – it seems to be more in the nature of a material fact which might have appeared in the FASOC under the heading construction of the pipeline, near to [65]. 6 [13]. 7 [4]. -- 4 of 7 -- 5 6.2 If the Council or the Council’s agents exercise any rights pursuant to clause 6.1, the Council undertakes to indemnify and save harmless the registered proprietor as a result of exercising those rights, powers and liberties and it agrees to make good and restore to a reasonable condition (having regard to its original condition) the surface of that part of the land utilised by the Council pursuant to such rights, powers or liberties unless the exercise of such rights, powers and liberties were occasioned by the wilful or neglectful act of the registered proprietor, its employees, agents, invitees or licenses or the occupier of the registered proprietor’s lands, or any part of them, adjacent to the easement. [13] The plaintiff now seeks to plead the indemnity term of the notice of intention to resume (at proposed 2FASOC, [47A-D]) and the facts that otherwise give rise to the indemnity claim (at proposed 2FASOC, [72]). The plaintiff says the defendant is liable to indemnify it for losses flowing from the defendant’s failure to make good the land immediately adjacent to the Second Easement where it had undertaken works. The applicant’s submissions [14] The applicant submitted that the indemnity claim arises out of substantially the same facts as the presently pleaded case and the only “new” facts relevant to the indemnity claim are facts that would also be relevant to the plaintiff’s trespass claim and which the plaintiff would seek to prove in any event. [15] In that respect, the applicant submitted (at [48]-[49] of its written submissions): [48] Here, the indemnity arises out of substantially the same facts as the plaintiff’s presently pleaded case. Relevantly: (a) the existence and some of the terms of the NIR and the Second Easement have already been pleaded; (b) the defendant’s failure to make good and restore to a reasonable condition the land adjacent to the Second Easement is alleged by reference to matters which have already been pleaded at paragraph 69(i); (c) the loss and damage suffered by the defendant’s failure to make good and restore to a reasonable condition the land adjacent to the Second Easement is alleged by reference to matters which have already been pleaded at paragraph 69(k) to (m). (d) the indemnity is pleaded as an alternative, so the quantum of the indemnity claim is identical to the plaintiff’s presently pleaded claim. [49] The only "new” facts that the plaintiff relies upon in support of its indemnity claim is whether the defendant undertook work on the land immediately adjacent to the Second Easement, as particularised at proposed paragraphs and (sic) 49(c), (g), (h) and (i) of the FASOC and the 2FASOC. Those facts are relevant to the plaintiff’s trespass claim and are facts that the plaintiff would seek to prove in any event. Analysis [16] I do not accept that the indemnity claim arises out of the same or substantially the same facts as the current causes of action pleaded by the plaintiff. It does not involve telling substantially the same story as the existing pleading requires. It is of a different character involving facts of a different nature (although new facts of itself will not necessarily result in a leave application of this nature being unsuccessful). I accept the defendant’s submissions ([55] of the defendant’s written submissions) that: -- 5 of 7 -- 6 [55] … A claim under clause 6.1 of the Second Easement involves the following facts: (a) that the Second Easement is valid and provided a lawful authority for the Council to come onto and use the land the subject of the Second Easement as well as land immediately adjacent to the Second Easement; (b) the Council came onto and used land immediately adjacent to the Second Easement; (c) the Council did not make good and restore to a reasonable condition the surface of the land immediately adjacent to the Second Easement; (d) AGMC suffered loss as a result of the Council exercising its right to come onto and use the land immediately adjacent to the Second Easement. [17] That is a substantially different “story” to the existing pleading particularly where: (a) in the existing pleading the plaintiff does not rely upon the validly of the Second Easement at all, but specifically says the defendant’s use of the relevant land was without lawful authority; (b) in the existing pleading there is no distinction as to works carried out on land immediately adjacent to the Second Easement and elsewhere; (c) in the existing pleading there is no distinction made about whether the loss is suffered because of a failure of the defendant to carry out restoration works (which is not a necessary part of the existing pleaded causes of action) and the defendant’s works;8 (d) the existing pleading does not rely upon specific terms of an indemnity being enlivened in fact; (e) the existing pleading does not rely upon there being a failure of the defendant to carry out restoration works to an identified contractual standard (that is, “make good and restore to a reasonable condition (having regard to its original condition)” as per clause 6.2) (f) in the existing pleading the timing of the acts of the defendant are not relevant (whereas for the indemnity claim given the indemnity only took effect on 12 September 2014, the timing of the defendant’s acts would be important in the context of the indemnity claim). [18] Nor is it clear from the proposed 2FASOC that the indemnity claim is only concerned with areas of land that were already the subject of existing claims (although that may be the intention). In that respect: (a) proposed 2FASOC, particulars to [72(a)] identifies the work undertaken on the land immediately adjacent to the Second Easement as that at [49(c), (g), (h) and (i)]; (b) each of [49(g), (h) and (i)] and part of [49(c)] of the proposed 2FASOC appear to identify previously unidentified parts of the land; 8 Except to a very limited extent in FASOC, [69(i)]. -- 6 of 7 -- 7 (c) it is not clear how those newly identified parts of the land correspond with the particulars of damage not fully rectified appearing at FASOC [69(i)], except that proposed 2FASOC, [72(b)] says in general terms that the defendant failed to rectify the land immediately adjacent to the Second Easement as particularised at FASOC, [69(i)]. [19] Rule 376(4)(b) UCPR not being satisfied, the applicant’s application for leave to amend to include the indemnity claim is dismissed. -- 7 of 7 --