Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd [2022] QCATA 7

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Action Health Centre Pty Ltd v Searipple Holdings Pty Ltd [2022] QCATA 7 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 MATTER TYPE: Appeals DELIVERED ON: 24 January 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member D J McGill SC ORDERS: Leave granted to appeal from the Decision of the Tribunal in this matter of 19 August 2020. Appeal allowed. Decision of the Tribunal set aside. Further hearing and determination of the respondent’s claim adjourned to a date to be fixed, to be determined by the Appeal Tribunal on the papers. 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 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13(1) Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Cavalliotis v Rizio [2013] QCATA 201 Crime and Corruption Commission v Lee [2019] QCATA 38 -- 1 of 13 -- 2 Currumbin Investments Pty Ltd v Mitchell Park Parkwood CTS [2012] QCA 9 Fanigun Pty Ltd v Woolworths Ltd [2006] 2 Qd R 366 Gerhardt v Hanlon [2011] QCATA 356 Greenslade v Perry [2017] QCATA 10 Kellogg v Board of Trustees the Ipswich Girls’ Grammar School [2011] QCATA 210 Mount Cathay Pty Ltd v Lend Lease Funds Management Ltd [2012] QCA 274 Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202 Ormiston College v Avent [2018] QCATA 103 Rufa Pty Ltd v Cross [1981] Qd R 365 Rural View Developments Pty Ltd v Fastfort Pty Ltd [2011] 1 Qd R 35 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 Water Board v Moustakas (1988) 180 CLR 491 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented 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] An easement is the right to use the land of another for a particular, limited purpose.1 It is a concept of some antiquity at common law, but for present purposes it is provided for and regulated by the Land Title Act 1994 (Qld) (“the Act”), in particular Part 6 Division 4. The parties are owners of adjacent parcels of land in Townsville, one of which, the servient tenement, is subject to a registered easement of way in favour of the other, the dominant tenement. The appellant is the owner of the dominant tenement; the respondent, of the servient tenement. The easement was registered in 1925 under the Real Property Act 1861 (Qld) but now takes effect under the Act.2 [2] The grant of easement provided for the owner of the dominant tenement to pay to the owner of the servient tenement contributions to certain costs incurred by the latter. On 18 March 2020 the respondent filed in the Tribunal an application for a minor debt claim, seeking payment of $9,564.58 as money payable pursuant to the easement. On 19 August 2020, following a hearing, a Member in an ex tempore decision ordered 1 Multiplex Bluewater Marina Village Pty Ltd v Harbour Tropics Pty Ltd [2017] QCA 202 at [19]. 2 The Act s 200, s 201. -- 2 of 13 -- 3 the appellant to pay that amount to the respondent, together with a filing fee of $123.20. This is an application for leave to appeal from that decision. [3] The application for leave to appeal was filed on 16 October 2020.3 On 22 March 2021 Daubney J, then President of the Tribunal, stayed the decision of 19 August 2020 pending the outcome of the application for leave to appeal. Neither party has filed an application for leave to rely on the appeal on any evidence or document not before the Tribunal at first instance, as required by directions made 23 October 2020. [4] Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.4 As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.5 In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29. The easement land [5] The grant of easement is old, and the copy provided to the Tribunal is in poor condition, and has an illegible strip running down the middle of the page. I assume it is a victim of the computerisation of the Land Title Office. As well, only the first page is on the file. So far as I can make out from the copy on the file, it was dated 6 July 1925, and granted an easement of way in favour of the grantees and their heirs and successors as owners of a parcel of land, described as Subdivision 2 of Allotment 15 of [unintelligible] being the whole of the land contained in certificate of title N17319 Volume 188 Folio [unintelligible] over the piece of land described in the schedule (in common with the owner of that land and others entitled to use it). It is clear from this that the land in the schedule is the strip of land which is the easement. [6] The schedule was not reproduced in the document on the file.6 There is on the file a plan of survey showing the easement as subdivision 2 of allotments 1 and 2 of section 12. The easement ran along the rear of allotments 1 and 2, northeast from Blackwood Street, and the plan shows that the easement abutted parcels of land numbered 15 and 16, the former presumably the allotment 15 referred to in the grant of easement, which is separated from Blackwood Street by the parcel of land numbered 16. That plan does not show all of allotment 15, but I assume it ran through to Flinders Street, since another document on the file shows an address in Flinders Street for the appellant’s land. 3 Any extension necessary of the time for filing the application was granted by the Tribunal on 23 October 2020. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142(3)(a)(i). 5 Crime and Corruption Commission v Lee [2019] QCATA 38 at [12], citing appellate authority. See also Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. 6 A copy attached to the appellant’s submissions on appeal included the schedule, which confirmed that the schedule described the land shown as the easement on the survey plan in evidence. It is also more clear than the copy forming part of the copy of the file provided by the registry in Townsville. -- 3 of 13 -- 4 [7] I cannot find a date on that plan, but it has numbers “Cat No T1-204”, 1742 and 701742. Although the easement land was a subdivision of allotments 1 and 2, it appears from the evidence at the hearing that at some point the easement land was separated from the title to the balance of allotments 1 and 2, and became attached to the land forming all or part of allotment 16. The document of title to the respondent’s land, also on the file, identifies the land by means of a registered plan not in evidence, but refers to the reservations in the Crown Grants of allotments 1, 2 and 16. The respondent’s land is one of four parcels of land which together constituted the original allotments 15 and 16. The appellant’s land is part of allotment 15, which had been subdivided before the grant of the easement in 1925. [8] From the evidence at the hearing, the balance of allotments 1 and 2 is now occupied by a cinema. The title to the respondent’s land shows an easement registered in 1913 over the easement land in favour of the balance of allotments 1 and 2, now the cinema land, but the terms of that easement are not in evidence. The end of the easement land abuts what would have been allotment 3, but that land was not mentioned in evidence, and presumably the occupants of it make no use of the easement. The respondent said that in practice the easement is used by the appellant and the occupants of the two other parcels of land abutting the south east side of the easement. It is not apparent whether the owners of those two parcels have easements over the easement land. The covenant in the easement [9] The grant of easement contained a covenant on the part of the grantees and their successors with the grantor “that they w[ill at all ti]mes7 hereafter pay a proportionate part of the upkeep [unintelligible] the fences and gates erected on the land mentioned i[n the schedul]e8 hereto and also a proportionate part of the rates p[aid with res]pect9 to the said land.” The respondent in evidence at the hearing said (p 1-8) he assumed that the unintelligible part after the word “upkeep” was “which would include” but those words contain too many letters to fit in the available space.10 They have 18 letters, but the other unintelligible parts have 12 or 13 missing letters. I suspect that the missing words are “and repair of”,11 13 letters and consistent with the drafting style at the time, but the appellant can be bound only by what is able to be read of the document. The decision of the Member [10] The Member, in an ex tempore decision, identified the nature of the dispute, and said that the appellant disputed the respondent’s claim on the basis that it was excessive, covering costs not covered by the grant of the easement. The appellant sought to confine the liability strictly to those matters covered by the terms of the easement, whereas the respondent sought a liberal interpretation of the document, so that the owner of the servient tenement would not suffer financial expense because of the land which could not be used because of the existence of the easement.12 7 Text in brackets unintelligible and assumed. 8 Text in brackets unintelligible and assumed. 9 Text in brackets unintelligible and assumed. 10 In 1925 typewriters used the same amount of space for every keystroke. 11 On the copy of the grant attached to the appellant’s submissions, the first letter of the word after “upkeep” seems to be “a”. 12 Transcript p 1-27. I shall refer to transcript references as just the page number concerned. -- 4 of 13 -- 5 [11] The Member said that he accepted that there were now a number of additional expenses incurred by landowners in the circumstances of the respondent, and that the intent of the clause was to reduce the financial burden of the landowner for the portion of the property used by others. The Member accepted the evidence of the respondent that there were only three parties who made significant use of the easement, and who therefore should share the costs. The Member referred in general terms to the evidence of the respondent as to such costs as were included in the claim. Without dissecting the costs claimed in detail, the Member found them fair and reasonable, and found that the respondent had proved its claim. He therefore gave judgment for the amount claimed. Submissions of the parties [12] The appellant submitted that the Member had acted beyond the jurisdiction of the Tribunal in adding expenses beyond the payment obligations expressed in the grant of easement. Only the Supreme Court has power to amend an easement.13 The Member had erred further in basing obligations to pay expenses on usage, rather than on the terms of the easement document. The respondent had not had regard to the terms of the easement, and had not taken into account that the respondent also had the use of the easement, and was liable for a proportionate part of the relevant expenses. There was no evidence of expenditure on the upkeep or maintenance of fences or gates erected on the land, and the only liability was to pay a share of the rates. [13] The appellant relied on a passage said to be from a High Court decision on the interpretation of a contract,14 but in fact appearing in a decision of the New South Wales Court of Appeal:15 A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and businesslike operation if an interpretation different to that dictated by the language were adopted. [14] The respondent submitted that the spirit of the deed is for the beneficiaries to pay for the associated operating costs of the easement. The standards of operation have evolved since 1925, and the costs claimed reflect current standards of liability, maintenance, security and safety. As for the easement in favour of another parcel of land, the cinema complex, that is used only for the purposes of a fire escape and does not generate costs. Three properties in fact use the easement for vehicular traffic, and the other two properties have accepted a shared expenses approach. It was submitted that evidence of expenditure had been produced to the Member, but that the appellant should not have access to rates notices and the like, because these were commercial- in-confidence.16 Further it was said that this was the third decision of the Magistrates Court of Townsville confirming that payment is due to the respondent for easement charges. 13 Under the Property Law Act 1974 (Qld) s 181, and the Act s 92. 14 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at [39]. 15 Jireh International Pty Ltd v Western Exports Services Inc [2011] NSWCA 137 at [55]. I am indebted to the last associate of Daubney J, Ms M Behne, for this identification. 16 This reflected an objection the respondent took at the hearing to disclosing original documents such as rates notices to the appellant: p 1-11. There was no legitimate basis for the Tribunal to receive evidence which had not been disclosed to the appellant: the QCAT Act s 28(3)(a). If the Member allowed this, it was an error. All documents relied on to prove the claim should have been disclosed. -- 5 of 13 -- 6 Nature of the Tribunal’s function [15] This is a minor civil dispute, being a claim for a liquidated sum of less than $25,000. It is therefore subject to the QCAT Act s 13(1), and the obligation on the Tribunal was to “make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute… .” That does not mean however that a Member deciding a minor civil dispute can ignore the law, and simply give effect to whatever subjective view the Member has as to what is fair and equitable in the circumstances.17 The respondent relied on Cavalliotis v Rizio [2013] QCATA 201 at [15], where Member Forbes said that s 13(1) “releases the Tribunal from mandatory adherence to the rules of common law and equity, and confers a ‘broad jurisdiction to make orders that it considers fair and equitable’ ….” For this he cited two decisions of the Appeal Tribunal, The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 at [8] per Wilson J, and Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 at [9], per Wilson J. [16] These decisions concerned applications for leave to appeal by parties who had not appeared at the original hearing, and are relevant to the approach to be adopted in such circumstances. The terms of s 13(1) were quoted in each, but in neither case was there any exposition of their effect. Neither supports the proposition that they release the Tribunal from the rules of common (or statute) law and equity. In Kellogg (supra), an appeal from a decision in a minor civil dispute, the Appeal Tribunal said at [6]: “The inescapable conclusion from reading the Act as a whole is that the decision must be made by applying the relevant law.” That appeal did turn on the effect of s 13(1). That proposition was repeated by Wilson J, the then President of the Tribunal, in Gerhardt (supra) at [7], and endorsed in the other two decisions cited. I do not regard the approach in Cavalliotis (supra) as correct. [17] In the present case, the respondent was claiming an entitlement to payment based on a covenant in a grant of easement registered under the Act. The relevant question for the Member to consider was therefore what entitlement arose as a matter of law under that grant. The issue was not what payment would it be fair and equitable for the appellant to make for the use of the easement, as if the appellant had no existing legal right to use it. That would deny the appellant’s property right in the benefit of the registered easement, which is protected indefeasibly by the Act. It is not a matter of compensating the respondent for the existence of the easement. The respondent knew the easement was there, and its terms, when it acquired the land, and no doubt the price paid was determined accordingly. Interpretation of an easement [18] The first issue is, what is the true interpretation of the covenant in the grant of easement. The interpretation of the grant of a registered easement is more limited than the construction of an ordinary commercial contract, in that extrinsic evidence admissible in the latter case is generally not admissible in the former.18 The intention 17 Kellogg v Board of Trustees the Ipswich Girls’ Grammar School [2011] QCATA 210 at [6]; Gerhardt v Hanlon [2011] QCATA 356 at [7]; Greenslade v Perry [2017] QCATA 10 at [10]; Ormiston College v Avent [2018] QCATA 103 at [33]. 18 Westfield Management Ltd v Perpetual Trustee Company Ltd (2007) 233 CLR 528 at [37]. An exception was recognized for evidence to make sense of the terms or expressions used in the registered document, such as the interpretation of surveying terms: [44]. See also Multiplex Bluewater Marina -- 6 of 13 -- 7 or contemplation of the parties to the grant can be ascertained only from its terms. The use made of a dominant tenement may change with the nature of the dominant tenement, so long as the use is within the terms of the grant.19 It follows that, in the interpretation of a grant of easement, what matters is very much the actual words used, although a court can also look at the physical circumstances of the dominant and servient tenements.20 [19] It is quite clear that the Member made no attempt to address the actual wording of the grant of easement. That was an error, and meant that the decision of the Tribunal was not in accordance with the law. It was therefore necessarily not just and equitable. For that reason, and because the appeal raises questions of general importance, it is appropriate to grant leave to appeal. [20] The covenant by the grantees in the grant of easement covered two matters: the upkeep of the fences and gates erected on “the land mentioned in the schedule hereto” and the rates in respect to “the said land”. The schedule described the land covered by the easement. It follows that it is only the upkeep costs of fences and gates erected on the easement land which are relevant. That means the actual upkeep costs, of which there was no evidence. There is no obligation to contribute to costs associated with any fences or gates erected anywhere else, or any other costs of maintaining the easement.21 The respondent sought a contribution to land tax, public liability insurance, security costs, a sinking fund for resurfacing costs, a fee for another company which managed the site, and charges for hotel parking relocation.22 [21] The same applies to the rates; the starting point is that the covenant refers to the rates on the easement land. I assume that rates are not levied on that land separately. If as I expect rates are levied on the whole of the servient tenement, or on a larger parcel of land including the whole of the servient tenement, the rates levied on the easement land could be ascertained by taking the proportionate part of the rates levied on the larger parcel according to the areas of it and of the easement. A proportionate part? [22] That is the starting point. But the covenant does not require the grantees to pay the whole of the rates levied on the easement land, but “a proportionate part” of them. This gives rise to the next difficulty: what is the relevant proportion? The grant of easement does not say. It is clear however that the right of way of the grantees over the easement is held in common with the owner for the time being of the servient tenement, and anyone else who has “by way of grants of consent or otherwise” the right to pass over the easement. [23] In this context it is relevant to note that the easement land as an identified parcel of land did not come into existence in 1925 when this easement was granted. The title to the respondent’s land shows that an easement was granted in 1913 by reference to registered plan 1742, one of the numbers on the plan a copy of which is in evidence. Village Pty Ltd v Harbour Tropics Pty Ltd (supra) at [34], [35]; Mount Cathay Pty Ltd v Lend Lease Funds Management Ltd [2012] QCA 274 at [14]. 19 Westfield Management (supra) at [42]. 20 Currumbin Investments Pty Ltd v Mitchell Park Parkwood CTS [2012] QCA 9 at [48], [49]. 21 The grant of easement suggests that it was originally a family arrangement, and such an arrangement is not necessarily strictly commercial. 22 See pp 1-8, 1-10, 1-12. The last was for the cost of employees parking in the street. I cannot understand how this and some other costs could be seen as reasonable. -- 7 of 13 -- 8 The matter is not entirely clear, because I cannot locate a date of registration on that plan, but it appears that there was an easement, registered over the easement land in 1913, in existence when the 1925 grant was registered. The Member had no evidence about that easement, or of its terms, but presumably it was also an easement of way. As mentioned earlier, there are two other properties which abut the easement; the evidence did not disclose whether they have the benefit of an easement, but the respondent said they are making the payments it sought: p 1-19. [24] There are several possible ways in which one could derive “a proportionate part” of the rates levied on the easement land: it could be a share based on the number of parcels of land with a right to use the easement;23 or a share based on the respective areas of the parcels of land having a right to use the easement; or it could be that the parties intended that the proportion would depend on the number of owners who in fact made use of the easement from time to time,24 or in proportion according to the actual use made of the easement from time to time. The approach to the interpretation of easements referred to above suggests that the last two possible meanings should to be excluded, because they could not be ascertained just by an inspection of the registered document. That still leaves at least two possible meanings; and there may be other ways to determine a proportionate part. One thing that is clear is that it was not an obligation to pay all of the rates for the easement land. If the intention were that the owners of the servient and dominant tenements would share the burden equally, it would have been easy enough to say so. [25] The same issue arises in relation to the cost of the upkeep of the fences and gates on the easement, although the issue may not be as acute, because there may be none. In these circumstances, a major problem with the enforcement of this covenant is uncertainty as to the actual amount payable. The proposition that a covenant is void for uncertainty is one that is reached only with the greatest reluctance, but it is at least very difficult, if not impossible, to attribute any meaning to the concept of “proportionate part” in this covenant simply by reference to the terms of the grant, and such other limited material properly available for that purpose, such as other registered instruments. It is possible that this situation was the result of an error in drafting the document, but a court cannot amend a covenant to correct suspected drafting errors.25 [26] The question of the meaning of the term “proportionate part” and the uncertainty of its meaning were raised at first instance, but the appellant did not contend that it was void for uncertainty. The appellant contended there that it should be one fifth of the relevant costs, on the basis that there were five people with a right to use the easement, including the cinema owner who was apparently the beneficiary of the easement from 23 The appellant said that the 1913 grant of easement did not contain any covenant to contribute to rates. This is not apparent from the evidence before the Member, but if true, it would introduce another possibility, the number of owners liable to contribute. 24 That appears to have been the basis in fact used by the respondent in advancing its claim: p 1-12. In further submissions to the Appeal Tribunal made after it was invited to address this issue, the respondent suggested the same proportion as the areas of the dominant and servient tenements, citing Re Tiki Village International Ltd [1993] QSC 211, a lease dispute where a “fair proportion” of land tax assessed on on the whole of the landlord’s land was determined on a ratio of areas. 25 See the quote earlier from Jireh International, which would apply with greater force to a registered covenant. -- 8 of 13 -- 9 1913 and the respondent who retained the right to pass over the land, as well as the two other owners who have apparently been allowed to use the easement land, with or without a registered easement. The fact that the building currently erected on the servient tenement does not take advantage of access over the easement is irrelevant to its interpretation, since the correct interpretation must be one capable of applying in 1925 as well as today, or at any time in the future.26 The respondent claimed one third of the allocated costs, on the basis that three occupiers actually used the easement. [27] I understand there is authority in the United States of America that in a situation like this a court can interpret a covenant in an easement as meaning whatever is a reasonable proportion in the circumstances prevailing from time to time. Such an approach may be difficult to reconcile with Australian authority on the interpretation of grants of easements, but it may be noted that the grant did provide expressly that the right of way was to be enjoyed in common with the owner and anyone else who has the right to pass over the easement. That suggests a proportion based on the number of parties, including the owner of the servient tenement, who have a right to use the easement, whether or not it is exercised. As submitted by the appellant to the Member, that is five: the appellant, the respondent, the holder of the other registered easement, and the owners of the other two parcels of land who in fact make use of the easement, on whatever basis. Covenants to contribute to costs [28] One matter which was not covered expressly by the grant of easement was any contribution to the cost of maintaining it as a usable right of way. That would not have been seen as a difficulty in 1925, because the assumption would have been that the common law position would apply. At common law, there was no implied covenant to maintain an easement, although the owner of either the dominant or the servient tenement had a right to undertake maintenance works.27 In the case of the owner of the dominant tenement, this was only such works as would permit the reasonable exercise of the easement rights. If any such works were undertaken by either owner, neither had at common law a right to contribution from the other.28 [29] This position was not easily modified by an express covenant to maintain, because of the limitations at common law on the enforcement of rights under covenants against persons not parties to the covenant, in particular successors in title.29 At law they were not enforceable; negative covenants were enforceable in equity, but not positive covenants.30 A covenant to pay money is a positive covenant,31 even if it is a covenant related to the grant of an easement. This has been recognised as a deficiency in the law for a long time,32 and it has been remedied by legislation in the United Kingdom, 26 For example, if in the future the site were redeveloped, the easement could be used to gain access to an underground car park on the balance of the site. 27 Butt P, Land Law (5 th Ed 2006) para 16107; Bradbrook MacCallum & Moore, Australian Real Property Law, (4 th Ed 2007) para 18.110. The owner of the dominant tenement (and hence its contractors) had the right to enter the land for this purpose: Timpar Nominees Pty Ltd v Archer [2001] WASCA 430 at [43]; Mantec Thoroughbreds Pty Ltd v Batur [2009] VSC 351 at [90] – [94]. 28 Gale on Easements (18 th Ed, 2008) para 1-94, 1-95. 29 Butt, op cit, para 16110; para 1704; para 1719. 30 Megarry & Wade, the Law of Real Property (3 rd Ed 1966) p 756. 31 Body Corporate 341188 v Auckland District Court & ors [2015] NZCA 393 at [48], [49]. 32 Megarry & Wade, op cit, p 757. -- 9 of 13 -- 10 and in New South Wales.33 In Queensland the Act provides for the registration of covenants only in limited circumstances,34 which do not apply here, and as a general proposition positive covenants are not enforceable against successors in title to the covenantor. [30] Without the benefit of authority, one might be tempted to assume that the fact that the covenant was included in a registered easement expressed to apply to successors in title of the parties, and related to the grant of the easement, meant that the covenant had the benefit of the protection of the indefeasibility of title bestowed by the Act. There have however been a number of decisions dealing with Torrens title land which have rejected that approach. [31] That was shown most clearly by the decision of McMurdo J (as his Honour then was) in Rural View Developments Pty Ltd v Fastfort Pty Ltd [2011] 1 Qd R 35. The facts were complicated, but in essence the defendant resisted an action for specific performance of a contract for the sale of land on the basis that it was a condition of the contract that the land have the benefit of a registered easement of way as a means of access, the local authority having imposed a condition on the subdivision that access to the land be only over such an easement. Such an easement was in place, registered by the vendor, but it contained a covenant for the owner for the time being of the dominant tenement to contribute half the cost of construction repair or maintenance of the roadway and other improvements on the easement. The defendant claimed that it had not agreed to pay such a contribution, and as a result the easement did not satisfy the vendor’s obligation in the contract. [32] That defence was rejected by his Honour, on the ground that this covenant in the easement was unenforceable: [33]. His Honour’s reasoning was detailed, and included a careful analysis of relevant authorities.35 The proposition that the burden of a positive covenant such as this was enforceable against the successor in title of the grantee (here the appellant) pursuant to the provisions of the Property Law Act 1974 (Qld) s 53(2) was rejected by his Honour at [17], following the decision of the House of Lords in Rhone v Stephens [1994] 2 AC 310 in relation to the equivalent English legislation.36 His Honour also noted that the covenant in that case was not expressed to be a condition of the grant of the easement, which is also the case here. [33] His Honour noted the decision in Fanigun Pty Ltd v Woolworths Ltd [2006] 2 Qd R 366, where an exception to the general principle, known as the conditional benefit principle, was held to apply: [98]. That principle is discussed in a text book,37 where it is said that the following requirements must be satisfied: (a) The positive obligation must be a condition of the exercise of the power. (b) The condition must be relevant to the exercise of the power or right and must not be an independent provision – that is, there must be reciprocity – the benefit given in exchange for the right. 33 Conveyancing Act 1919 (NSW) s 88BA, inserted in 1995. See Butt, op cit, para 1719. 34 See Part 6 Division 4A, covenants in favour of the state or local government or a government body. 35 Including a rejection of the authority of Frater v Finlay (1968) 91 WN (NSW) 730, as to which see also Butt, op cit, para 1715. 36 See also Butt, op cit, para 1706. 37 MacDonald et al, Real Property Law in Queensland (4 th Ed 2015) at paragraphs 17.150 – 17.200. -- 10 of 13 -- 11 (c) There must be a free choice as to whether the right is to be exercised – that is the person who is subject to the obligation must have the option not to exercise the right so that he or she does not have to assume the burden. [34] In Fanigun those conditions were found to be satisfied. In Rural View, it was found that neither the first nor the third was satisfied, the latter because of the requirement of the local authority that access to the land be only over the easement. In the present case, it is not possible on the basis of the evidence presently available for me to tell whether there is access to the appellant’s land other than by the easement, but if the only practical way to bring vehicles onto the appellant’s land is by way of the easement, the position may be the same as in Rural View. If access is available from Flinders St, whether or not prevented by what is constructed on the land, it may be that the conditional benefit principle will apply. [35] The decision in Rural View was cited by his Honour in Mount Cathay Pty Ltd v Lend Lease Funds Management Ltd [2012] QCA 274 at [9], in reasons for judgment with which the other members of the Court agreed. It may be however that that was technically dicta, and so not binding on me. In Rural View his Honour distinguished a decision of the Full Court, Rufa Pty Ltd v Cross [1981] Qd R 365, which appears to have endorsed the conditional benefit principle. Whether the conditional benefit principle could be applied in this matter was not litigated before the Member, the appellant apparently not disputing a liability to pay one fifth of the rates on the easement land.38 I suspect that if the Court of Appeal had to decide the question now it would endorse the view expressed in Rural View, but in the circumstances it is not appropriate to decide it. [36] I note that the issue has been revisited by the Court of Appeal in England in Goodman v Elwood [2014] Ch 442 at 451, where a covenant in an easement to contribute to maintenance was enforced. In the circumstances, it is not appropriate for me to consider whether that decision affects the position in this state.39 [37] The issue about the uncertainty of the covenant was raised at the hearing, although not the particular proposition that that meant that the covenant was void as a result. The second issue, about the enforceability of a positive covenant, was not raised. In the circumstances, having identified them as relevant issues, I sought further submissions from the parties about them. The respondent objected to their being raised on appeal, and also made a submission about the minor civil jurisdiction, which I have rejected. Concern was expressed about a finding affecting the validity of the easement, but the decision in Rural View (supra) shows that any invalidity of the covenant does not affect the validity of the easement. I have already referred to the submissions about “proportionate part”. The respondent also relied on the decisions of Rufa Pty Ltd (supra) and Moustakas (supra). The appellant did not make further submissions. Analysis [38] In the circumstances I will proceed on the basis that the covenant was valid, not being either void for uncertainty or an unenforceable positive covenant, although I do not consider that this decision will give rise to any issue estoppel on the latter point. But the only amount recoverable by the respondent under it, on its true construction, was one fifth of the amount paid by the respondent for rates on the easement land. There 38 The appellant is bound by its conduct at first instance: Water Board v Moustakas (1988) 180 CLR 491. 39 As far as I know, that decision has not been discussed in a Queensland court. -- 11 of 13 -- 12 was no specific finding of the amount considered as payable by the Member in his reasons, which was not helpful, and I cannot find in the material on the copy of the file from Townsville registry a copy of the spreadsheet handed up at the hearing by the respondent, and said by the Member to have been made Exhibit 1.40 [39] The spreadsheet was supposed to show the breakdown of the various amounts claimed by the respondent, but since I have not seen it I cannot say if it identified rates separately. The only discussion of it during the hearing was at p 1-14, when the respondent’s representative spoke about “proportionate costs” and “direct costs”; if I follow what he said, the proportionate costs were those costs associated with the whole of the respondent’s land a proportionate part of which were attributed to the easement, whereas direct costs were costs said to be specific to the easement. The proportionate costs came to $120.69 per month from each of three parties required to contribute, and the direct costs $179.13 per month from each. The difficulty for my purposes is that, although it appears that rates were included in the “proportionate costs”, other things, such as land tax and insurance were also included, and they are not covered by the covenant in the easement. [40] Accordingly on the material currently available to me it is not possible to determine what amount as a proportionate share of the rates on the easement land was properly payable by the appellant under the covenant. I am tempted just to dismiss the respondent’s claim on the basis that it has not proved its case, but will give it one last opportunity to prove what amount is properly payable by the appellant in respect of this claim. To do that, the respondent must, within twenty-eight days from the date of this decision, file in the Tribunal and serve on the appellant copies of all rates notices, in respect of the land owned by the respondent which includes the easement land, in fact paid by the respondent in the period from 1 October 2017 to 29 February 2020. That should enable the Tribunal to work out the rates applicable to the easement land, and the respondent will then be entitled to recover one fifth of that amount. If the respondent fails to put those documents before the Tribunal within that period, or is not willing to disclose them to the appellant, its claim will simply be dismissed. Conclusion [41] The appellant, in its response to the claim, said correctly that there had been no proper accounting by the respondent, since the respondent had refused or failed to provide copies of those rates notices. At the hearing the appellant did not dispute a liability to pay a one-fifth share of the appropriate amount for rates, and that is the outcome which the Member should have adopted if deciding the matter in a way which reflected the legal rights of the appellant under the easement. In those circumstances, the filing fee should not have been payable by the appellant. On the other hand, the appellant has had to come to the Appeal Tribunal to achieve justice, and the respondent should pay the appellant the amount of the filing fee for the Application for Leave to Appeal, $352.00. [42] The decision of the Appeal Tribunal is therefore as follows: 1. Leave granted to appeal from the Decision of the Tribunal in this matter of 19 August 2020. 2. Appeal allowed. 40 Reasons p 1-27, although I could find nowhere in the hearing transcript where that occurred. -- 12 of 13 -- 13 3. Decision of the Tribunal set aside. 4. Further hearing and determination of the respondent’s claim adjourned to a date to be fixed, to be determined by the Appeal Tribunal on the papers. -- 13 of 13 --