Proctor : March 2017
46 PROCTOR | March 2017 were complaints of being refused relief which he thought he justly deserved – where despite many efforts by members of the court to encourage the applicant to address the reasons of Morrison JA, he failed to do so in any meaningful way – where he did not point to any error on his Honour’s part, let alone an error sufficient for the court to exercise its discretion to grant his application to discharge or vary his Honour’s orders. Application refused. Tighe & Anor v Pike & Ors  QCA 353, 23 December 2016 Application for Leave Sustainable Planning Act – where the second respondent issued a decision notice under the Integrated Planning Act 1997 (Qld) approving an application for reconfiguration of the original lot into two lots – where condition 2 of the approval conditions required creation of an easement for access, on-site manoeuvring and connection of services for the benefited lot, lot 2, over the burdened lot, lot 1 – where the registered proprietors of the original lot did not include grant of an easement for “on-site manoeuvring” or “connection of services and utilities” – where the second respondent nevertheless endorsed the survey plan – where the titles for lot 1 and lot 2 were created upon registration of the survey plan with this easement registered on the titles – where the applicants subsequently became the registered proprietors of lot 1 and the first respondents subsequently became the registered proprietors of lot 2 – where the first respondents applied in the Planning and Environment Court for a declaration that condition 2 of the development permit had been contravened and an enforcement order directing the applicants to comply with condition 2 – where the Planning and Environment Court granted the application – where it was submitted by the applicant that the primary judge erred in finding the court had jurisdiction to make the enforcement order by reason of the commission of a development offence where there was no such offence – whether s245, in combination with s580(1), of the Sustainable Planning Act 2009 (Qld) operated to make condition 2 continue to have effect by attaching condition 2 to lot 1 after the reconfiguration of the lot had been completed and the approval had been spent – whether condition 2 imposed any obligation upon the applicants even though they were not parties to the reconfiguration of the original lot approved by the development approval – whether the applicants committed a development offence by failing to comply with condition 2 – whether a development offence existed that could support the making of an enforcement order – where any application of s245 of the Sustainable Planning Act to attach the development approval to lot 1 and make it, including its conditions, binding upon the applicants did not change that meaning of condition 2 – where since the applicants were not parties to the reconfiguration of the original lot approved by the development approval, condition 2 did not impose any obligation upon the applicants – where it follows that they could not have committed an offence against s580(1) of the Sustainable Planning Act by not providing the registered easement described in condition 2. Application granted. Appeal allowed. Orders made in the Planning and Environment Court set aside. Originating application in that court is dismissed. First respondents are to pay the applicants’ costs of the application for leave to appeal and the appeal and the applicants’ costs in the Planning and Environment Court. Quinn v Legal Services Commissioner  QCA 354, 23 December 2016 Application for Extension of Time; Appeal Queensland Civil and Administrative Tribunal Act – where the respondent filed a disciplinary application against the applicant, alleging guilt of 64 separate charges of professional misconduct and or unsatisfactory professional conduct for trust accounting offences – where the applicant did not file any affidavit and indicated to the tribunal that he did not intend to make any submission in opposition to the application – where the tribunal decided to hear the application on the papers, pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the applicant was found guilty of each charge of professional misconduct by the tribunal, his name removed from the Roll of Legal Practitioners and ordered to pay $2500 in costs – where the applicant, over a year out of time, applied for an extension of time within which to appeal against the tribunal’s orders, submitting that the tribunal failed to hear and decide the discipline application in accordance with the requirements of the Legal Profession Act 2007 (Qld) (LPA) – where it is not in issue that there is a satisfactory explanation for the delay – where earlier this year the tribunal accepted that the applicant had shown sufficient reasons for his delay in applying for a reopening of the tribunal’s original decision, but dismissed that application upon a ground that is not relevant in this application – where the respondent concedes that the explanation for the delay accepted by the tribunal adequately explains the applicant’s delay in appealing to this court – where the tribunal proceeded on the basis that the assertions made in the disciplinary application were correct because they were not denied by the applicant – whether that mode of proceeding is reconcilable with the LPA – where s456(1) LPA makes it clear that the disciplinary body’s power to make such orders, or any disciplinary order, arises only after it has completed a hearing of a discipline application and is satisfied that the practitioner has engaged in unsatisfactory professional or professional misconduct – where the nature of the required hearing is elucidated by s453 LPA, which obliges the disciplinary body to “hear and decide each allegation stated in the disciplinary application” – where in the context of this legislation, ss453 and 456(1) LPA required the tribunal to hear the evidence (which, in this case, the tribunal decided it could do by reading the affidavits) and decide whether that evidence proved the allegations made by the respondent against the applicant – where the tribunal’s approach of proceeding upon the assumption that the allegations made in the disciplinary application were correct was a fundamental departure from the statutory obligation imposed upon the tribunal to hear and decide each allegation stated in the discipline application – where it follows that the jurisdiction of the tribunal to make orders against the applicant under s456(1) LPA did not arise. Application for extension of time granted. Appeal allowed. Set aside the orders of the Queensland Civil and Administrative Tribunal. Direct that the registrar or other proper officer of the Supreme Court cause the name of the applicant to be restored to the Roll of Legal Practitioners from which that name was removed pursuant to the order made on 24 March 2015. Order the respondent to pay the costs of the appeal (not the costs of the applicant’s application to extend time for appealing). Grant the respondent an indemnity certificate in respect of the appeal. JLF Corporation Pty Ltd v Matos  QCA 355, 23 December 2016 General Civil Appeal – where the respondent purchased property from the appellant – where the respondent and the appellant entered into a put option agreement whereby the appellant agreed to purchase back the property if the respondent sent a contract contained in a schedule prior to a certain date – where the respondent sought to exercise the put option – where the respondent used the 10th edition of the REIQ/Queensland Law Society standard form contract in lieu of the eighth edition of the contract attached to the put option agreement – where the primary judge held that the respondent validly exercised the put option contained in a written put option agreement between the respondent and the appellant dated February 2012 – where the appellant argued that the exercise of the put option was invalidated by the delivery of the 10th edition of the standard form contract rather than the edition contained within the put option agreement – where the respondent submitted that the primary judge’s conclusions were correct – whether upon the proper construction of the put option agreement, it required, for the valid exercise of the put option, that the respondent deliver a contract in the form of the eighth edition of the REIQ/Queensland Law Society standard form – where the resolution of the appeal turns upon the proper construction of the put option agreement – where an objective approach must be adopted in that exercise; the meaning of that agreement must be determined by what a reasonable business person would have understood it to mean, and that requires consideration of the language of the agreement, the surrounding circumstances known to the parties, and the commercial purpose or objects to be secured by the agreement: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 – where there is no relevant ambiguity about the meaning of the relevant clause – where the only way in which the put option could be exercised, if the respondent chose to exercise it, was “by the Owner delivering to JFL two (2) copies of the Contract...”, and otherwise as prescribed in cl.2.4 – where the primary judge noted that cl.2 .4 did not itself contain express terms requiring an executed contract in the form of the eighth edition of the standard form contract, but that was conveyed with at least equal clarity by the inclusion in Schedule 1 of a form of contract with several identifications in it that it was the eighth edition of the standard form contract – where the clear language of cl.2.4 of the put option agreement made the delivery to the appellant of two copies of the eighth edition of the REIQ/ Queensland Law Society standard form of contact for houses and residential land, duly signed by the respondent, an essential requirement for the exercise of the put option – where the respondent’s delivery of signed copies of the 10th edition of that standard form contract did not comply with that essential requirement, with the result that the put option was not exercised. Appeal allowed. Set aside the declarations and orders made in the Trial Division. Dismiss the originating application. Costs.