Eastwood & Anor v Scenic Rim Regional Council [2021] QCA 197

[2021] QCA 197 COURT OF APPEAL HOLMES CJ McMURDO JA FREEBURN J Appeal No 5724 of 2021 DC No 348 of 2019 JOHN EASTWOOD Applicants LORETTA EASTWOOD v SCENIC RIM REGIONAL COUNCIL Respondent BRISBANE MONDAY, 13 SEPTEMBER 2021 JUDGMENT HOLMES CJ: The applicants, who were the plaintiffs at first instance, seek an extension of time for the filing of an appeal against summary judgment granted in favour of the defendant, now the respondent, to which I shall refer as “the Council”. The judgment was given on 26 February 2021, and the application for an extension of time was filed on 19 May 2021. The plaintiffs, as I will continue to refer to them, say that the judgment was given ex tempore and they had not wanted to appeal until they saw the written reasons. They also say that plaintiffs in other matters are affected by the judgment and they needed to be consulted in relation to an appeal, but there is no explanation as to why that was so. -- 1 of 6 -- 2 The summary judgment application was brought in respect of the fifth version of the statement of claim, which alleged negligence and misleading and/or deceptive conduct on the part of the Council in relation to the plaintiff’s entry into arrangements with it concerning two sites at the Lake Moogerah Caravan Park. The nature of those arrangements is variously referred to in the further amended statement of claim as purchase of the sites, purchase of a right to occupy, or the granting of a license to occupy provided site fees were paid and park rules obeyed. But the argument below and here proceeded on the basis that it was the last. In the further amended statement of claim, the plaintiffs plead that they acquired the first license to occupy in 2003, representations being made to them at that time by the caravan park manager that the Council had a 99 year lease on the property and that they would be able to occupy the site for the life of the caravan park. The Council itself also represented that they could stay on the site as long as they kept up site fees and followed the park rules. The site in question had a cabin on it, which the plaintiffs bought, presumably from the previous owner. It is not alleged that it belongs to the Council. A building approval previously granted by the Council in relation to the site was provided to the plaintiffs and they, it is pleaded, made improvements at a cost of $45,000. In 2005, they acquired the right to occupy another site on which they performed renovations, presumably on a building on the site, at a cost of $10,000. In 2008, the plaintiffs admit, they received a newsletter from the Council which informed them that there was no tenure in respect of the sites and that approval to use the site was “until advised otherwise”. According to the plaintiffs, both licences to occupy were terminated on 30 June 2018 by the Council and by Seqwater, from which the Council itself had a license to occupy part of the land known as lot 226, the lot on which the two sites were situated. That license provided that the Council was not to construct buildings on lot 226 without prior written consent. The Council was trustee of an adjoining lot, 233, for the purpose of a camping and recreation reserve, and the two lots together formed the caravan park. The plaintiffs plead that they were caused loss by the Council’s negligence and misleading and/or deceptive conduct, contrary to s 18 of the Australian Consumer Law. Summarised, the -- 2 of 6 -- 3 allegations are that the Council gave them a plan which showed the sites as being on lot 233, issued the building permit in relation to that lot, and by charging site fees and promulgating park rules led them to think that they were entitled to occupy and build on the sites. In addition, they had been given to understand that the Council had a 99 year lease, and they could stay on the sites as long as they paid the site fees and followed the park rules. According to the further amended statement of claim, the plaintiffs would not have purchased the cabin and obtained the building approval in respect of the first site but for the representations made to them, and they “bought” the second site in reliance on the representations. They plead, however, that it was the termination of their licences to occupy the sites which caused them to suffer loss and damage, while also alleging that that loss was caused by the negligence and misleading and/or deceptive conduct already outlined. In respect of the first site, the plaintiffs claim a loss of $100,000, that being what they say is the value of the right to occupy the site with the cabin on it as at 30 June 2018, or, alternatively, $45,000, the cost of the improvements they made. In respect of the second site, they claim a loss of $110,000, that being the value of the improvements and the right to occupy the site as at 30 June 2018 or, in the alternative, $10,000, representing the improvements they made. It is difficult to see how on any view the plaintiffs could be said to have lost the value of the rights to occupy the sites, since in neither case did they have an interest of which they could dispose. There is no suggestion in the pleading that the licences to occupy were transferable. One might reasonably infer, however, that they lost the value of the structure and improvements on each site once the license to occupy the site on which they stood was revoked. The basis of the summary judgment application was that the plaintiff’s claim was doomed to failure because it was brought out of time more than six years after the date on which the causes of action arose, that being when damage was suffered: Limitation of Actions Act 1974 s 10; Australian Consumer Law s 236. On the Council’s argument, the damage was suffered when the plaintiffs entered into the respective agreements in 2003 and 2005 for licences to occupy, or, alternatively, in November 2008 when the Council notified the plaintiffs their right to -- 3 of 6 -- 4 occupy was until advised otherwise, or, alternatively, in February 2013 when the Council gave the plaintiffs certain advice. The plaintiffs did not, however, admit the last of those allegations. The plaintiffs argued that the loss was suffered when their rights to occupy the sites were terminated in 2018, no loss or damage being suffered until then. They relied on Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 for the proposition that where, as a result of the defendant’s negligent misrepresentation, the plaintiff enters a contract which exposes him or her to a contingent loss or liability, the loss is at that stage merely prospective and is not sustained until the contingency is fulfilled. Their suffering of loss was contingent, they contended, on the termination of their licences to occupy the sites. That argument was rejected by the District Court judge, who noted that the plaintiffs had pleaded that they had suffered loss through the entering of the agreements by reason of the expenditure of money on site fees and improvements, that they would not have entered the agreements but for the representations, and that they knew they were buying the cabin on the first site, not the site itself. The right of occupancy was always subject to the Council’s right to terminate it. It followed that the loss was sustained upon the entry into the agreement in each case. Given the limitations defence, the plaintiffs lacked any prospect of success. It was a sufficiently clear case for the granting of summary judgment against them. The proposed ground of appeal is that the judge erred in finding that the plaintiffs suffered damage when they entered into the agreements in 2003 and 2005, rather than when their licences to occupy were terminated in 2018. The judge, it is said, was wrong when she said that the plaintiffs had pleaded they suffered loss by entering into the agreements and that their loss arose because they expended money on site fees and improvements. To the contrary, they had pleaded that they suffered loss and damage by reason of the termination of the right to occupy. Her Honour was also wrong in finding that the right was always subject to the Council’s capacity to terminate, because the plaintiffs had pleaded the Council’s representation that if they paid the site fees and followed the park rules, the site would be theirs. Their loss was the loss of the value of the right to occupy, which was contingent on its termination, and their cause of action thus accrued on 30 June 2018. -- 4 of 6 -- 5 In my view, an extension of time for the plaintiffs’ appeal should not be granted. Firstly, the explanation for delay is not compelling. The decision involved a single, straightforward issue, and the ground of appeal identified must have been apparent to the plaintiff’s lawyers when the judgment was given ex tempore. Secondly, any appeal is without prospects of success. There is no causative relationship between the representations and acts by the Council which are said to constitute negligence and misleading and/or deceptive conduct on the one hand, and the termination of the licences on the other. The termination is not itself said to constitute negligence or misleading conduct, and the allegation that the plaintiffs suffered the loss of what they claim was the 2018 value of the site and structure in each case is illogical. Their pleading is that but for the various negligent and misleading representations, they would not have purchased the structure on the first site or “bought” the second site; so it follows that in the absence of those representations, they would not have been in possession of the sites or structures in 2018. The plaintiffs’ loss was not contingent. In each instance, it arose when they purchased a structure which, on their case, was built in breach of the principal licence and, it follows, was worth less than what they perceived they were buying – a structure which was built with the Council’s authority as trustee on a site which they expected to be permitted to occupy indefinitely. That was a measurable loss which increased when they made further expenditures on improvements. None of that is said to have occurred within the past six years. At the latest, the loss must have been manifest to the plaintiffs in 2008, when they were advised that there was no tenure in relation to the sites and that their approval to use the sites was only until they were advised otherwise. The District Court judge was correct in her conclusion that the limitation defence must succeed so that there was no need for a trial of the action. The application to extend time should be refused. McMURDO JA: I agree. FREEBURN J: I agree. -- 5 of 6 -- 6 HOLMES CJ: The application to extend time is refused. MR COLLINS: We seek the costs, your Honour. HOLMES CJ: Can you say anything to that, Mr Pope? MR POPE: No, your Honour. No, your Honour. HOLMES CJ: All right. The applicant is to pay the respondent’s costs of the application. We will adjourn. -- 6 of 6 --