Boundaryfield Pty Ltd v Vievers & Anor [1994] QSC 306

.A,~:/· Se- ~4so6 ~l'f/1 State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION BYRNE J Writ No 1350 of 1993 j REVISED COPIES iSSUED ! State Reporting Bureau IDate 3 I f( I 1<t BOUNDARYFIELD PTY LTD (FORMERLY GOLDEN HARVEST MOTOR VILLAGE PTY LIMITED) Plaintiff and WILLIAM ROBERT VIEVERS and JENNIFER ANN MARIE FERGUSON BRISBANE .• DATE 14/10/94 JUDGMENT Defendants 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Fac.<>imiiP: ((J71 227 ""1?. -- 1 of 12 -- 141094 at (Byrne J) HIS HONOuR: The plaintiff is registered as proprietor of 3.6826 hectares of land situated at Toowoomba. The land is described as lot 1 on Registered Plan number 17654. An instrument dated 5 April 1991 records the lease by the plaintiff to the defendants of "the whole of (those) premises". The plaintiff seeks rectification to alter the description of the demised premises. Those involved in the negotiations which eventually led to the execution of the lease all believed that the negotiations had resulted in a concluded agreement which, among other things, defined the boundaries of the. demised premises; and it is common ground that the description of the demised premises contained in the lease is wrong. The parties, however, cannot agree on the boundaries of the area intended to have been leased. The lease relates to a roadhouse on a small part of the site in the north-western corner a4jacent to the intersection of Bridge and Boundary Streets. The plaintiff acquired the land in the middle of 1987. Its directors at the time, Mr Francis, who now controls the company·, and Mr Towler, who ceased to have an involvement with the company in 1992, decided to develop the land through the construction of two projects. The roadhouse was the first, and by mid-1989 it was operating. The balance of the unsubdivided site was gradually to be developed as a caravan park. By early 1991 the park was under construction. An amenities block had been built, and it seems 2 JUDGMENT 10 30 40 50 60 -- 2 of 12 -- 141094 at (Byrne J) some of the caravan sites had been built or were well under construction by that time. The plaintiff intended to retain, and under Mr Towler's management, to operate the caravan park; but its directors decided to part with the roadhouse business. In 1991 the male defendant contracted to acquire the business. For that purpose it was necessary to conclude arrangements according rights to occupy the. roadhouse site. This case concerns the boundaries of the land intended to be taken on lease for the purpose of conducting the roadhouse business. The litigation arises mainly because the parties made the mistake of retaining the same solicitor to act for them in relation to the conveyancing, and that solicitor left the work to his secretary. During the course of this litigation, the plaintiff has proposed different versions of its claim, which is scarcely a promising foundation in a rectification suit. In the result, however, the variety of claims which have been advanced from time t•o time proves to be of no significance. It is as well to identify now what little remained in contest after all the evidence. There is now no dispute about the eastern or northern boundaries. At first the plaintiff contended that the eastern boundary of the area to be leased was about two metres farther away than the defendants have always been disposed to concede. 3 JUDGMENT 10 20 30 40 50 60 -- 3 of 12 -- 141094 at (Byrne J) Both sides, however, were agreed that the eastern boundary was intended to coincide with the eastern extremity of the concrete strip servicing the roadhouse. Mr Francis, it seems, made the mistake of assuming that the concrete strip extended east to,the line, some two metres or so further east, which had been approved by the local authority for sealed pavement. As constructed, the pavement does not extend so far. In other words, there was always agreement in principle concerning the eastern boundary. There is now agreement on the detail of its location. Subject to the question concerning the eastern boundary, there has always been consensus on the northern boundary. The disputes relate, essentially, to the southern and western boundaries and concern three areas, all on the southern side of the roadhouse. For convenience, these areas may be referred to as: 1. The gas bottle site, a tiny parcel located on the southern side of the sealed driveway which provides access on the-southern side to Boundary Street. 2. The "hire ute" area, which is on the south-west of the site adjoining the southern boundary of the driveway which provides access to Boundary Street. 3. That southern access driveway. There is no arguable case that the gas bottle site had been 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 12 -- 141094 at (Byrne J) agreed to be included in the lease. The suggestion that the gas bottle site was included was, as I understood it, based on the fact that Mr Towler arranged for gas bottles to be placed there. But Mrs Ferguson, whose evidence in this respect accorded with that of Mr Towler, testified that the gas bottles were not there until after the lease was executed. And there was no suggestion that anyone, by words or conduct, indicated before the lease was executed that the gas bottle area was to be included within the area to be demised. There is thus no basis for supposing that, when the lease was executed after the conclusion of the negotiations, anyone involved in these transactions imagined that the gas bottle area was to be within the demised premises. I turn to the southern access driveway. As it approaches Boundary Street, this is a 7 m- more precisely, 7.025 m- strip of sealed pavement. It provides access to and from Boundary Street for the roadhouse and, beyond the roadhouse, to the caravan park. The evidence of Mr and Mrs Vievers makes it plain enough that there was no agreement to accord them a right •to exclusive- possession in respect of this land. The plaintiff does not suggest that the defendants do not have an agreed right to use this strip. The plaintiff has always accepted that the so.uthern access driveway was to be available to the defendants and their invitees (such as customers) for as long as the lease of the roadhouse subsists. The plaintiff's contention, however, has been that this entitlement is not a right to exclusive possession but was instead to be enjoyed in common with others. And the 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 12 -- 141094 at (Byrne J) plaintiff accepts that rectification may be conditioned on a requirement that an instrument be brought into existence which records the defendants' rights in respect of this southern driveway while they remain entitled to occupy the roadhouse. For the.;i.r part, the defendants, as they acknowledged yesterday in evidence, have always appreciated that this southern access driveway also served the caravan park. More importantly, during their evidence they accepted that, at the time the lease was concluded, they knew that that state of affairs was intended to continue and were content with it. They appreciated when the lease was signed that the proprietors and customers of the caravan park, as well as others who were to visit that part of the site for purposes associated with the caravan park business, were to enjoy uninhibited use of the seven metre sealed strip along the southern boundary of the roadhouse site. So the defendants have always appreciated that their right to use that area was not a right. to its exclusive possession. Moreover as Mr Connolly was disposed to concede in address - correotly, in my opinion - .his clients were to acquire no higher or better right to use of the southern access driveway than those who were to continue to resort to the caravan park through it·. The defendants, therefore, have always recognised that there was not to be any right to exclusive possession of this strip. In this case, it follows that the southern access driveway was not to be included in the lease. This leaves for consideration the 70 sq m "hire ute" area. 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 12 -- 141094 at (Byrne J) Before and during the negotiations, two utility hire vehicles were often, indeed, usually, kept there. The roadhouse business included a business of hiring two utility vehicles. While the plaintiff conducted the roadhouse business, which include$ the period during which the negotiations were conducted, Mr Towler was in the habit of arranging for the two vehicles to be parked in this small area to the south-west of the roadhouse.· The area has as its northern boundary the southern side of the seven metre wide common access road. To the west it extends to the line which would represent a southern projection of the western boundary of the demised premises. Until quite recently this land was unsealed. It was not obviously a part of the service station site. To the contrary, this small plot had every appearance of being part of the adjacent caravan park site. Mr Towler, who impressed me as generally reliable, testified that that area had been set aside for car parking spaces for the caravan park office. T~at office is, as Mr Towler said, "right next door" to the unsealed (as they were then) parking bays. , (At one stage, see page 49 line 23, Mr Towler spoke of the land providing car parking for the office of the "roadhouse". The reference to roadhouse is, as testimony elsewhere discloses, a slip). After the defendants took possession of the roadhouse they continued, without objection, to use this area to park the rental vehicles until that part of the business ceased. That the area was routinely used by the plaintiff before the sale 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 12 -- 141094 at (Byrne J) of the business to store the vehicles, and that the plaintiff did not object to the defendants using the area for the same purpose after the defendants took possession, account for the defendants' contention that the common intention of the parties, was that the area be subjected to the defendants' lease. The defendants do not suggest that anything was said to them to indicate that the area would form part of the demise. Rather, the case in this respect appears to be that they assumed, from what they had seen of the use to which the premises were. put, that the property would form part of the leased area. However, during his evidence, Mr Vievers acknowledged that he did not expect to use it exclusively. I cannot accept that there was any justification for the assumption that the plaintiff proposed to accord rights of exclusive possession of this small area to the defendants. As I have said, it was not recognisably part of the roadhouse; so that even if nothing had been said on the topic to the defendants, their assumption could not have justified a conclusion that they were intended to have the area as part of the d.emised premises .. Mr Towler, I should add, also recalls having discussed these parking bays with .Mr Vievers during the negotiations. In cross-examination, Mr Towler said that he certainly remembered telling Mr Vievers that those bays were "set aside for the office of the caravan park". This evidence should be accepted. Incidentally, it was acknowledged during addresses that this evidence was not challenged in cross-examination and 8 JUDGMENT 10 20 30 40 50 60 -- 8 of 12 -- 141094 at (Byrne J) that it was not specifically commented on by Mr Vievers during his testimony. Mr Towler' s evidence about this conversation is an additional reason for deciding that the "hire ute" area was not to form part of the demised premises. Mr Towler, as I have said, impressed me as a generally reliable witness. His relations with Mr Francis are less than friendly, and he bears no ill-will to either of the defendants. He has no reason not to tell the truth. He struck me as someone doing his best to recall the events about which he was questioned. He has no interest in the outcome of the case. I regard his evidence as preferable to the evidence of Mr Vievers. My conclusions strictly make it unnecessary to dwell further on the credibility of the witnesses. In particular, it is unnecessary to express any final view concerning the reliability of the evidence of Mr Francis, generally or especially with respect to hi$ controversial testimony concerning pre-contractual conversations with Mr Vievers. Mr Francis, however, presented.as keenly alert to where his company's interests lie; and I was at times concerned that his evidence was given more with an eye to advancing the plaintiff's interests than as an attempt genuinely to recall events as he actually remembered them. Although I entertain reservations about the reliability of much of Mr Vievers' evidence, I am inclined to think that Mr Vievers' denial that the conversations at the site occurred ought to be accepted in 9 JUDGMENT 10 20 30 40 50 60 -- 9 of 12 -- 141094 at (Byrne J) preference to the evidence of Mr Francis. As between his recollection and that of Mr Towler concerning their discussions, including the discussions earlier this year concern~ng Mr Towler's testifying, I prefer the evidence of Mr Towler. As to the conflict between Mr Vievers and Mr Francis, it may be said that Mr Vievers is involved in litigation in which allegations are made against the ·plaintiff of fraudulently inducing the acquisition of the roadhouse business by the defendants. Not surprisingly personal relations with Mr Francis, who lives next door to the defendants, are strained. Mr Vievers is conscious of where his interests lie, although his evidence was, in many respects, quite candid. I am satisfied that he sought to take advantage of the mistaken description in the lease to. extract the defendants from the venture which he now regards as having been concluded on disadvantageous terms. He was seizing the opportunity of the mistake for the purpose of negotiating a commercial advantage: seeking to take advantage of a lease which he knew contained a misdescription of the demised premises. One possible explanation for the continued resistance to the plaintiff's claims for rectification is that the defence is maintained not so much because the defendants believe they have a substantial issue to agitate with respect to their 10 JUDGMENT 10 20 30 40 50 60 -- 10 of 12 -- 141094 at (Byrne J) claims but in the hope of negotiating a compromise of their claims against the plaintiff - at least that might be thought of Mr Vievers. I am rather inclined to think that Mrs Vievers was generally honest; but she seems to have left all the important decisions to her husband. However, as I have said, in the result it is not necessary for me to form any concluded views on the general credibility of Mr Francis and Mr Vievers. I have said enough to indicate that I entertain reservations about some of the testimony of both of them. It was suggested that rectification ought to be refused on the footing that, initially, the lease envisaged that land which was not subject to a relevant town planning approval might be used for the roadhouse. were obtained. So the Subsequently, additional rezonings roadhouse site is now comfortably within the boundaries of the approved area. This would have gone some way towards alleviating the difficulty which might be said to be associated with the arguable illegality. But it is unnecessary to .dwell upon this question either. The issue of illegality was not raised in the defence, and it cannot be regarded as having been litigated. The plaintiffs appropriately enough, in my view, conducted the case without directing attention to the question of possible illegality; and it is not at all clear that had the case been conducted differently the illegality would inevitably have been proved. 11 JUDGMENT 10 20 30 40 50 60 -- 11 of 12 -- 141094 at (Byrne J) I am satisfied that the plaintiff has established its entitlement to rectification. I will give the parties an opportunity to make submissions with respect to the form of order. HIS HONOUR: I am content to make an order in terms of the draft. HIS HONOUR: Mr Roney, you may have your costs on a solicitor and client basis. I have made that addition to the draft order. HIS HONOUR: There will be an. order that, at the time limited for the expiration of appeal, the exhibits in the case be returned to the solicitors for the parties on whose behalf they were respectively tendered and that the file of the solicitor, Mr Orchard, presently in the Court's custody be delivered into the custody of the solicitor for the plaintiff for the purpose of returning the file to Mr Orchard, solicitor of Toowoomba. 12 JUDGMENT 10 20 30 40 50 60 -- 12 of 12 --