Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd (No 2) [2022] QCATA 24

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd (No 2) [2022] QCATA 24 PARTIES: ACTION HEALTH CENTRE PTY LTD (applicant/appellant) v SEARIPPLE HOLDINGS PTY LTD (respondent) APPLICATION NO/S: APL319-20 ORIGINATING APPLICATION NO/S: MCD49-20 Townsville MATTER TYPE: Appeals DELIVERED ON: 2 March 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: Further order that, in lieu of the decision of the Tribunal of 19 August 2020, the appellant pay to the respondent the sum of $891.30. CATCHWORDS: REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS – RIGHTS OF WAY – OTHER CASES – registered easement - covenant to contribute to rates and some costs – interpretation of grant of easement – whether covenant uncertain – whether positive covenant enforceable against successor in title APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION [1] This matter is an appeal from the decision of a Member of the Tribunal on 19 August 2020. On 24 January 2022 I granted leave to appeal, allowed the appeal and set aside the decision of the Tribunal, but did not finalise the proceeding, as I offered the respondent the opportunity to put additional material before the Tribunal, namely evidence of the actual amount paid by the respondent on account of rates during the relevant period. The appeal was adjourned to enable that to happen. -- 1 of 2 -- 2 [2] The respondent has now provided to the Tribunal, and to the appellant, copies of the rates notices issued to it in respect of Lot 1 on Registered Plan 708141, and of the easement land, Lot 2 on Registered Plan 701742, as follows: Date of Issue Rates amount Relevant period 1 February 2018 $6,428.34 January to June 2018 9 August 2018 $6,550.46 July to December 2018 31 January 2019 $6,550.46 January to June 2019 8 August 2019 $6,013.31 July to December 2019 30 January 2020 $6,013.31 January to June 2020 [3] I should say that the listed figures do not represent the total amounts charged in the rates notices by the local authority, but the amounts stated as specifically for rates in those notices. Other amounts are charges for particular services provided to the respondent by the local authority, which are not rates and are not levied in the same way as rates, and none of those services are relevant to the easement land. There is also a state government levy or two, also not relevant to the easement land. I consider that the covenant in the easement does not extend to them. [4] Total rates paid comes to $31,555.88. The notices refer to the area of the land covered by these rates as 884 square metres. The diagram in evidence showed the area of the easement land as 6.88 perches, which converts to 174 square metres. That is about 19.7% of 884 square metres. In evidence the director of the respondent gave the figure of 174 square metres for the easement land, but referred to this being 13.1% of another area. Whatever that area represented, it seems to me that the rates notices provided by the respondent apply to land of which 19.7% is the easement land. Accordingly the share of the rates attributable to the easement land is 19.7% of the total, which comes to $6,216.51. One fifth of that amount is $1,243.30. [5] As I said in my earlier reasons, the respondent should pay the filing fee for the appeal, $352, which has been paid by the appellant, so it should be deducted from that amount to leave a balance payable by the appellant of $891.30. Since the decision of the Member was stayed pending appeal by Daubney J, the then President of the Tribunal, on 22 March 2021, I assume that no payment was made by the appellant under the original decision, so I do not need to make an order for repayment of the balance. The decision of the Appeal Tribunal is therefore that, in lieu of the decision of the Tribunal of 19 August 2020, the appellant is ordered to pay to the respondent the sum of $891.30. -- 2 of 2 --