Eastwood & Eastwood v Scenic Rim Regional Council [2021] QDC 62

DISTRICT COURT OF QUEENSLAND CITATION: Eastwood & Eastwood v Scenic Rim Regional Council [2021] QDC 62 PARTIES: JOHN EASTWOOD & LORETTA EASTWOOD (Plaintiffs/Respondents) v SCENIC RIM REGIONAL COUNCIL (Defendant/Applicant) FILE NO: D348/19 DIVISION: Civil PROCEEDING: Application for summary judgment ORIGINATING COURT: Southport District Court DELIVERED ON: 26 February 2021 (ex-tempore) DELIVERED AT: Southport HEARING DATE: 26 February 2021 JUDGE: Dann DCJ ORDER: 1. Pursuant to r 293 of the UCPR there will be judgment for the defendant against the plaintiffs for the whole of the plaintiffs’ claims against it. 2. The plaintiffs pay the defendant’s costs of and incidental to the proceeding on a party and party basis to be taxed in lieu of agreement. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT – Where the defendant applied for summary judgment of the whole of the plaintiffs claim – Where the plaintiffs claims are for damages in negligence and/or pursuant to the Trade Practices/Australian Consumer Law – Where the basis for the defendant’s application for summary judgment is that it has a clear and equivocal limitations defence to all the plaintiffs claims in the proceeding – Where the defendant submits that where there is one cause of action which has accrued, it covers all subsequent loss and damage which is usually attributable to the same cause, even if that loss and damage only manifests itself later on by stages – Where the plaintiffs submit that no loss or damage was suffered until the right to occupy was terminated and actions in tort and under the Trade Practices Act are not complete until damage is suffered – Where the -- 1 of 8 -- 2 court is satisfied there is no real prospects that the plaintiffs will be successful in all or any part of the claims in the proceeding and there is no need for a trial. LEGISLATION: Australian Consumer Code, s 18 Limitations of Actions Act 1974 (Qld), s 10 Uniform Civil Procedure Rules, r 293 CASES: Brown v McArthur [2007] QDC 109 Commonwealth of Australia v Cornwell (2007) 229 CLR 519 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Jobbins v Capel Court Corp Ltd & Anor [1989] FCA 538 Magman International Pty Ltd & Ors v Westpac Banking Corp [1991] FCA 41 Rich v CGU Insurance Limited [2005] HCA 16 Wardley Australia Limited and Anor v State of WA (1992) 175 CLR 514 COUNSEL: M Pope for the Plaintiffs / Respondents APJ Collins for the Defendant/Applicant SOLICITORS: Derek Legal for the Plaintiffs / Respondents Barry Nilsson Lawyers for the Defendant/Applicant Introduction [1] This is an application by the defendant for summary judgment on the whole of the plaintiffs claim. There have been five versions of the statement of claim. [2] Judge Jackson QC struck out the third version in May 2020 and gave leave to the plaintiffs to re-plead. A fourth version was then filed and served. The defendant then brought an application for summary judgment. [3] The most recent version of the statement of claim (being the fifth version) was filed and served after the defendant’s application for summary judgment was made. As such, this version of the plaintiffs claim was filed cognisant of the fact of the summary judgment application being on foot. The summary judgment application proceeds on -- 2 of 8 -- 3 a consideration of the pleading which is contained in that fifth version of the amended statement of claim. [4] The plaintiffs’ claims are for damages in negligence and/or pursuant to the Trade Practices Act/Australian Consumer Law, the iteration of which does not matter for present purposes. [5] The proposed amended claim is for “$210,000 or alternatively $55,000 as damages for negligence or breach of Section 18 of the Australian Consumer Code (ACL)”. [6] The transactions the subject of the proceeding are, so far as it is possible to follow them by reference to the plaintiffs’ pleading, in summary, as follows. [7] In about 2003 the plaintiffs entered into some lease or licence arrangement to occupy land, described as site 19, at the Lake Moogerah Caravan Park and to build improvements on it. They plead they purchased a cabin on the site. They say they did so because of alleged representations: (a) by the caravan park manager (who they say made it clear to then they were buying the structure, not the site) that the site was Council property and that they had a 99 year lease to stay there and occupy the structure; and (b) by the predecessor council to the defendant that as long as they kept paying the site fees and followed the park rules the site would remain theirs (meaning the site and the habitable structure on it). [8] They plead they paid the site fees and on an unspecified date or dates, spent money on the habitable structure. [9] The plaintiffs plead, and it’s not disputed, that the defendant and the owner of the site terminated the plaintiffs’ right to occupy site 19 and the habitable structure on 30 June 2018. [10] The plaintiffs’ pleaded case is that the agreement they entered into in respect of the site and habitable structures which led to the loss would not have been entered into but for the representations, in paras 41 and 41B of the pleading. [11] The representations immediately above are also those pleaded as having been relied on in respect of the second transaction which, as pleaded, was a transaction to buy -- 3 of 8 -- 4 site 17 in the same caravan park in 2005. However, further on in the pleading, the plaintiffs legal interest in site 17 is alleged to have been a “right to occupy the site and the habitable structure” – see paras 57 and 58 of the amended statement of claim. As the argument proceeded, it did not appear that the plaintiffs maintain they actually bought the site. [12] Again, it is pleaded for the plaintiffs that the defendant and the owner of the site terminated the right to occupy on 30 June 2018. [13] All the circumstances pleaded as causing the loss to the plaintiffs by reason of the defendant’s negligence or breach of the Australian Consumer Law/Trade Practices Act inure back to the time of the entry into the second transaction as can be seen from paras 60 and 61 of the pleading. There is a belated pleading of loss suffered to the habitable structure in para 59A consequent upon the termination in June 2018, but what that loss is not pleaded in any way. This is despite the fact that this pleading was added after the plaintiffs were on notice of the summary judgment application, and nothing was advanced orally which gave any further articulation of what that loss or damage was when the matter came on before me. The Uniform Civil Procedure Rules [14] The defendant’s application for summary judgment is brought pursuant to r 293 of the UCPR which provides, relevantly: “(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff. (2) If the court is satisfied— (a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and (b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.” [15] On an application for summary judgment the defendant/applicant must satisfy the Court that there is ‘no real prospect of defending the claim’ and there is no need for a trial (Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232). A high -- 4 of 8 -- 5 degree of certainty is required about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: (Rich v CGU Insurance Limited [2005] HCA 16 at [18] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ). [16] If the Court is satisfied that there is no real prospect that a party will be successful in all or part of a claim and there is no need for a trial then ordinarily the other party is entitled to judgment (Atkinson J: Salcedo at [47]). The defendant’s application for summary judgment [17] The basis of the defendant’s application for summary judgment is that it has a clear and unequivocal limitations defence to all the plaintiffs’ claims in the proceeding. [18] This is because, it submits, the cause of action accrued in respect of the first transaction in or about 2003 at the time the plaintiffs entered into the agreement in respect of the lease or licence of site 19 and the contract for the cabin. The defendant submits that, in respect of the second transaction, and the cause of action accrued in or about 2005, on the same basis. [19] Section 10 of the Limitations of Actions Act 1974 (Qld) provides relevantly: “Actions of contract and tort and certain other actions (1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose— (a) subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person.” [20] The proceeding was not commenced until 19 December 2019. Consequently, any cause of action in negligence which accrued prior to 19 December 2013 is statute barred. [21] The parties are agreed on the principle that the cause of action in tort and under the Australian Consumer Law/Trade Practices Act is complete when damage is suffered (defendant/applicant’s outline at [20]; plaintiff/respondent’s outline at [2]). This is consistent with the position stated by the High Court in Commonwealth of Australia v Cornwell:1 1 (2007) 229 CLR 519 at [5]. -- 5 of 8 -- 6 “However, to show the existence of a completely constituted cause of action in negligence, a plaintiff must be able to show duty, breach and damage caused by the breach; accordingly, in the ordinary case, it is at the time when that damage is sustained that the cause of action ‘first accrues’ for the purposes of a provision such as (section 11 of the Limitation Act 1985 (ACT)).2” [22] The relevant principles in respect of the occurrence of loss were also summarised in Jobbins v Capel Court Ltd & Anor3 in a passage later approved in Magman International Pty Ltd & Ors v Westpac Banking Corporation:4 “... where the incurring of damage is an essential element of a cause of action, the suffering of some damage (the other elements of the cause of action having already occurred) will in general start time running even although the damage continues to grow. The running of time is not suspended until all the damage which will be suffered has ceased to flow, nor does further damage constitute a fresh cause of action.” [23] Consequently, the defendant, submits where there is one cause of action which has accrued, it covers all subsequent loss and damage which is usually attributable to the same cause, even if that loss and damage only manifests itself later on by stages. [24] Further, in respect of a claim in tort or under the Australian Consumer Law/Trade Practices Act when a misrepresentation includes a party to enter into a contract to that party’s detriment, the loss is sustained upon the entry into the transaction where money is paid. Notably, in this case, paras 41 and 41B of the amended statement of claim makes it clear that the plaintiffs case is that the payment of monies only occurred, the entry into the agreements only occurred, as a consequence of the representations. [25] The issue is, therefore, when the plaintiffs first suffered the damage: (a) was it when they entered into the agreements they entered into in 2003 and 2005? or (b) was it when the licences to occupy the sites were terminated on 30 June 2018? 2 Hawkins v Clayton (1988) 164 CLR 539. 3 [1989] FCA 538; (1989) 25 FCR 226 at 228. 4 [1991] FCA 41; (1991) 32 FCR 1 at 11. -- 6 of 8 -- 7 [26] The plaintiffs’ counsel conceded that unless the plaintiffs could establish that their loss was suffered by reason of the termination of their rights to occupy the sites in 2018, the defendant’s application for summary judgment would be made out. [27] The plaintiffs submit that the cause of action did not accrue until 30 June 2018, when the right to occupy was terminated because the representations made, as pleaded, exposed the plaintiffs to a contingent loss when the licence to occupy was cancelled (plaintiff’s outline of submissions at [4]). Therefore they submit that no loss or damage was suffered until the right to occupy was terminated and actions in tort and under the TPA are not complete until damage is suffered (plaintiff’s outline at [2]). [28] The difficulties with this submission for the plaintiffs are: (a) they expressly plead that they have suffered loss by reason of entry into each of the agreements and that loss then arose by reason of the expending of money on site fees and improvements; (b) they expressly plead they would not have entered into the contracts but for the representation; (c) The right of occupancy was always subject to the owner’s capacity to terminate that right; this was the position at the time of each of the transactions the entered into by the plaintiffs. They plead expressly further that they knew that they were buying the structure, not the site in respect of the first transaction. [29] These considerations take the matter outside the ambit of the principles set out in Wardley Australia Limited and Anor v State of WA (1992) 175 CLR 514 as set out in the plaintiffs’ outline of submissions. [30] Thus, it is apparent that, consistent with principles in respect of tort, in this case the plaintiffs have suffered loss that was sustained upon the entry into the agreement by which the right to occupy arose and the payment of monies occurred. Thus the causes of action pleaded accrued in 2003 and 2005 in respect of the first and second transactions respectively. [31] Finally, as the defendant correctly points out, there is no denial that the “right to occupy” was validly terminated or that the Council (or any other entity) was estopped -- 7 of 8 -- 8 from terminating that licence and there is no claim for equitable damages in respect of either transaction which may see the cause of action arising differently. [32] It is clear that summary judgment can be granted on a limitations defence in a sufficiently clear case: Brown v McArthur [2007] QDC 109 at [20] – [24] per McGill DCJ. [33] Applying the observations of Atkinson J in Salcedo at para 47, the Court is satisfied there is no real prospects that the plaintiffs will be successful in all or any part of the claims in this proceeding, and there is no need for a trial of the proceeding. [34] For the reasons set out above, this is such a sufficiently clear case. [35] Pursuant to r 293 of the UCPR there will be judgment for the defendant against the plaintiffs for the whole of the plaintiffs’ claims against it. [36] The plaintiffs pay the defendant’s costs of and incidental to the proceeding on a party and party basis to be taxed in lieu of agreement. -- 8 of 8 --