Cairns Airport Pty Ltd v Ampol Australia Petroleum Pty Ltd [2026] QSC 69

Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3) [2015] QSC 295, cited

Forsyth v Gibbs [2008] QCA 103; [2009] 1 Qd R 403, cited

Goldsmith v AMP Life Ltd [2021] QCA 20; [2021] 7 QR 113, cited

Gunns Ltd v Alishah [2009] TASSC 45; (2009) 19 Tas R 38, cited

K & A Laird Pty Ltd (NSW) Pty Ltd v Aizdan Pty Ltd (in liq) [2023] NSWSC 603, cited

Lansdale Pty Ltd v Moore [2009] WASCA 176, cited

Re Partnership Pacific Securities Ltd [1994] 1 Qd R 410, cited

St Barbara Ltd v Hockley [2013] WASC 283, cited

Tepko Pty Ltd v Water Board (2001) 206 CLR 1; [2001] HCA 19, cited

EL Robinson with R Liang for the first to fourth defendants

AJH O'Brien for the defendant added by counterclaim

Ashurst Australia for the first to fourth defendants

Minter Ellison for the defendant added by counterclaim

[1] This proceeding concerns a fuel distribution facility, called the "Joint User Hydrant Installation" (JUHI), at Cairns Airport.

[2] The plaintiff, Cairns Airport Pty Ltd (CAPL) has operated Cairns Airport since it was privatised in 2008. CAPL leases part of the airport for aircraft refuelling operations (Leased Area), and licences parts of the airport on which the JUHI has been installed (Licensed Area), to the first to fourth defendants (Fuel Companies).

[3] It is common ground that the Fuel Companies have not paid any licence fees to CAPL for their occupation of the Licenced Area since around April 2018.

[4] CAPL commenced this proceeding in February 2024, claiming unpaid licence fees from the Fuel Companies, as well as declarations that the parties are bound by the terms of a lease and a licence which were prepared in 2015 but never signed (2015 Lease and 2015 Licence) and orders for the specific performance of those agreements.

[5] The Fuel Companies say that the 2015 Lease and 2015 Licence are of no legal effect. They contend that, since 31 December 2009, they or their predecessors in interest (JUHI participants) have remained in occupation of the Leased Area and the Licenced Area by reason of holding over under a written lease signed in 1987 (1987 Lease), as varied by a deed of variation executed in 1994 (1994 Deed of Variation), and a licence signed in 1994 (1994 Licence).

[6] After the commencement of the proceeding, an issue arose concerning ownership of the assets comprising the JUHI facility. The Fuel Companies assert that in 1994 the JUHI participants purchased the then existing JUHI from the Cairns Port Authority, which was then the registered owner of Cairns Airport. Thereafter, they invested millions of dollars into the facility, including by building substantial additional structures, without any doubt being cast on their ownership of those assets. In August 2024, the Fuel Companies became concerned that CAPL may no longer accept their ownership of the JUHI. They sought acknowledgement from CAPL and from the present registered owner of Cairns Airport, Queensland Airport Holdings (Cairns) Pty Ltd (QAHCPL) that they were the owners of the JUHI and associated assets. No acknowledgement was provided.

[7] In June 2025, the Fuel Companies applied in this proceeding for an extension of time in which to file a counterclaim against CAPL, and for leave to add QAHCPL as a defendant to the proposed counterclaim. At that time, the proposed counterclaim sought a declaration that the Fuel Companies are the owners of the JUHI and associated assets. The application was not opposed by either CAPL or QAHCPL. The Fuel Companies were granted the relief they sought.

[8] Subsequently, the Fuel Companies amended their counterclaim to raise a claim for payment by CAPL of equitable compensation or damages if it is found that they are not the owners of the JUHI. They also amended their defence to plead a set-off of amounts they claim from CAPL against their liability to pay licence fees to CAPL.

[9] CAPL now applies under rr 173(3) and 182 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to exclude both the counterclaim and the set-off defence from this proceeding on the basis that the counterclaim has added significant factual and legal complexity to the proceeding.

[10] For the reasons that follow, CAPL's application should be dismissed.

The discretion to separate the trial of the counterclaim and set-off from the trial of the claim

[11] If the court considers that a defence by way of set-off cannot be conveniently dealt with in a proceeding, r 173(3)(a) provides that the court may set aside the defence and order that the set-off be dealt with in a separate proceeding.

[12] Likewise, although the general position under r 181(3) is that a counterclaim will be tried together with the plaintiff's claim, r 182 provides that the court may exclude a counterclaim from the proceeding in which it is made and give directions about the conduct of the counterclaim.

[13] Both r 173(3)(a) and r 182 confer a discretion on the court to order that a defendant's set-off or counterclaim be tried separately from a plaintiff's claim. As is made clear in rr 5(1) and (2), the discretion must in each case be exercised with the objective of avoiding undue delay, expense and technicality and, instead, to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. Accordingly, the procedural advantages and disadvantages of trying the claim and the set-off or counterclaim together or separately must be weighed. The court must consider factors such as the relationship of the claim to the set-off or counterclaim, the extent of overlap of the evidence relevant to the claim and evidence relevant to the set-off or counterclaim, the extent to which the set-off or counterclaim will delay the trial of the plaintiff's claim, as well as the time involved at trial and the costs if the claim and the set-off or counterclaim are tried separately or together.[1]

[14] The court should exercise caution in considering whether to separate the trial of a claim from the trial of a set-off or counterclaim. The starting point is that ordinarily the trial of an action should include all issues arising in the action. Experience has shown that benefits in terms of savings in time and cost said to follow from separate trials are often illusory. The discretion to order that a set-off or counterclaim be tried separately should only be exercised where its utility, economy and fairness to the parties is clearly made out.[2] The efficient resolution of the case must be consistent with doing justice to both sides.[3]

[15] I have borne these principles in mind when considering the factors relevant to the exercise of the discretion.

The relationship between CAPL's claim and the Fuel Companies' counterclaim

[16] CAPL submits, correctly, that its claim focuses on a different part of the 1994 Licence than is the subject of the counterclaim. There is no issue as to the construction and operation of the clause in the 1994 Licence under which licence fees are to be calculated if the Fuel Companies are correct in alleging that agreement continues to apply. I also accept, as appears to be common ground between the parties, that the counterclaim raises issues of legal and factual complexity which do not arise on CAPL's claim.

[17] However, it does not follow that the determination of CAPL's claim will not traverse issues raised by the counterclaim. An important issue which arises for determination in both the claim and the counterclaim is whether the 1987 Lease (as varied by the 1994 Deed of Variation) and the 1994 Licence remain on foot.

[18] Further, as already observed at [8] above, the Fuel Companies resist CAPL's claim for unpaid licence fees by pleading an equitable set-off of amounts they seek to recover in their counterclaim against their liability to pay licence fees.

The issue whether the 1987 Lease (as varied) and 1994 Licence remain on foot

[19] CAPL's claim for unpaid licence fees can be summarised as follows:

(a) in May 1987, the JUHI participants and the Cairns Port Authority entered into the 1987 Lease and an unexecuted but partially performed licence to operate the JUHI (1987 Licence);

(b) in July 1994, the JUHI participants surrendered their interests under the 1987 Licence and entered into a suite of agreements with the Cairns Port Authority, including the 1994 Deed of Variation (which varied the 1987 Lease), the 1994 Licence and a Master Agreement (1994 Master Agreement) by which the Cairns Port Authority sold the then existing JUHI and fuel depot assets to the JUHI participants;

(c) by their conduct, the parties subsequently adopted an unsigned lease and an unsigned licence agreement exchanged in 2005 (2005 Lease and 2005 Licence), pursuant to which the JUHI participants paid rent and licence fees from January 2005 until in or about April 2015;

(d) in March 2015, CAPL wrote to the JUHI participants terminating the then existing agreements concerning the Leased Area and Licensed Area from 11 April 2015;

(e) in November 2015, CAPL provided drafts of the 2015 Lease and 2015 Licence to the JUHI participants;

(f) from April 2015, the JUHI participants remained in occupation and possession of the Leased Area and the Licenced Area under the 2015 Lease and 2015 Licence and paid rent and licence fees in accordance with those documents;

(g) by reason of that conduct, the Fuel Companies are bound to the terms of the 2015 Lease and 2015 Licence;

(h) alternatively, if it is found that the Fuel Companies are holding over under the 1987 Lease (as varied) and the 1994 Licence, the JUHI participants agreed to vary those earlier agreements to accord with the terms of the 2015 Lease and 2015 Licence.

[20] In their defence, the Fuel Companies admit the existence of the 1987 Lease (but not the 1987 Licence) as well as each of the 1994 Deed of Variation, the 1994 Licence and the 1994 Master Agreement. They further plead that:

(a) the term of the 1987 Lease (as varied) and the 1994 Licence was extended to expire on 31 December 2009;

(b) in 2000, the Cairns Port Authority provided a draft lease and a draft licence, but no agreement was reached and the parties continued to conduct their relationship on the basis of the 1987 Lease (as varied) and the 1994 Licence;

(c) in 2002, the Cairns Port Authority acknowledged that the JUHI participants were holding over under the 1987 Lease (as varied) and the 1994 Licence;

(d) no agreement was reached on the terms of the 2005 Lease or the 2005 Licence. Those draft documents never became binding and no rent or licence fees were paid under them;

(e) from 31 December 1999 until about 31 December 2009, the JUHI participants remained in occupation and possession under the 1987 Lease (as varied) and the 1994 Licence, and thereafter by reason of holding over under those agreements;

(f) no binding agreement superseded those agreements, with rent and licence fees having been paid under the 1987 Lease (as varied) and the 1994 Licence, or as compensation for holding over under those agreements.

[21] The Fuel Companies deny they are bound by the terms of the 2015 Lease and 2015 Licence, or that any licence fees are due or owing under the 2015 Licence, because:

(a) on its proper construction, the document provided by CAPL in March 2015 did not terminate the existing agreements but instead constituted a conditional offer which, if accepted, would have the effect of terminating those existing agreements upon the commencement of a new lease and licence;

(b) the conditions of that offer, including agreement by the parties to the terms of a new lease and licence, were not fulfilled;

(c) the parties could not enter into the 2015 Lease and 2015 Licence without the written consent of the head lessor and QAHCPL and those consents were not obtained prior to the time when CAPL alleges that the 2015 Lease and 2015 Licence were entered into;

(d) of the matters set out at [20](d) to [20](f) above.

[22] On that analysis, it is clear the Fuel Companies' defence to CAPL's claim will require that the court determine whether the 1987 Lease (as varied) and 1994 Licence remain in effect, with the Fuel Companies holding over under the terms of those agreements, or whether those agreements were replaced by the later agreements pleaded by CAPL.

[23] In the counterclaim, the Fuel Companies allege that the JUHI participants became the owners of the JUHI and fuel depot assets on or about 1 September 1994 when the sale contemplated by the 1994 Master Agreement completed (see [19](b) above). Thereafter, from time to time the JUHI participants paid for additions to the JUHI and fuel depot assets to be constructed on the Leased Area or the Licenced Area and became the owners of those additions. The ownership interests held by earlier JUHI participants in the JUHI and fuel depot assets ultimately passed to the Fuel Companies.

[24] Among the bases the Fuel Companies rely upon in seeking a declaration that they own the JUHI and fuel depot assets is the allegation that, under either or both of the 1987 Lease (as varied) and the 1994 Licence, the JUHI participants from time to time would own any expansion, addition to or alteration of the JUHI or the fuel depot assets that they caused to be constructed on the Leased Area or the Licenced Area.

[25] That is, the Fuel Companies rely on the continued operation of the 1987 Lease (as varied) and the 1994 Licence, including in the period they say they have been holding over under the terms of those agreements, to claim ownership of additions or extensions to the JUHI and fuel depot assets constructed after the sale of the JUHI under the 1994 Master Agreement. If, as CAPL alleges, the 1987 Lease (as varied) and the 1994 Licence were replaced by later agreements, then that basis for the Fuel Companies' claim of ownership would not exist from the time those agreements ceased to have effect.

[26] Further, among the matters CAPL pleads in answer to the counterclaim is an allegation that the 1987 Lease (as varied) and the 1994 Licence provided that upon the expiry of those agreements the lessor (being the Cairns Port Authority if the agreements expired on 31 December 1999 and CAPL if the agreements expired on 1 January 2010) became the owner of the JUHI and fuel depot assets. However, if (as the Fuel Companies contend) the agreements remain in effect then ownership of the assets would not have passed to the lessor upon expiry.

[27] In these circumstances, the issue whether the 1987 Lease (as varied) and the 1994 Licence remain in effect, or whether they were replaced by later agreements, also arises for determination on the counterclaim.

[28] The existence of this common issue weighs against separating the counterclaim from the trial of the claim, notwithstanding the greater complexity of other issues raised by the counterclaim.

The Fuel Companies' defence of equitable set-off

[29] By their counterclaim, the Fuel Companies seek compensation or damages from CAPL if the court finds that the JUHI and fuel depot assets are owned by either QAHCPL or CAPL.

[30] The prospect that QAHCPL may be found to own the JUHI and fuel depot assets arises from QAHCPL's contention that since the Cairns Port Authority transferred registered title to the airport land to it in October 2008, it has held that land free from unregistered interests pursuant to s 184 of the Land Title Act 1994 (Qld) - including any ownership interest claimed by the JUHI participants from time to time - and thereby acquired ownership of the JUHI and the fuel depot assets to the extent they comprised fixtures.

[31] The Fuel Companies claim that if QAHCPL's contention prevails:

(a) prior to the transfer of registered title, the Cairns Port Authority held the JUHI and fuel depot assets on trust for the JUHI participants and the transfer of registered title without the authority of the JUHI participants was made in breach of that trust;

(b) the Cairns Port Authority transferred registered title in breach of an implied term of the 1994 Master Agreement (or, alternatively, the 1987 Lease as varied or the 1994 Licence) that it would not transfer registered title to the land on which the JUHI and fuel depot fixtures were situated without procuring either the consent of the JUHI participants, or the agreement of the incoming registered owner that it would be bound by the interest of the JUHI participants in the JUHI and fuel depot fixtures.

[32] The Fuel Companies plead that CAPL now stands in the shoes of the Cairns Port Authority and is liable to pay equitable compensation for the alleged breach of trust and damages for the alleged breach of contract by reason of a transfer notice signed by the Treasurer on 25 September 2008 (Transfer Notice).

[33] The prospect that CAPL became the owner of the JUHI and fuel depot fixtures arises from the operation of the 1987 Lease (as varied) and the 1994 Licence upon expiry (see [26] above). The Fuel Companies claim that if CAPL's contentions are accepted then they have an entitlement to fair and reasonable compensation for that property under the terms of the expired agreements. They allege that the liability to pay such compensation is a liability which passed to CAPL under the terms of the Transfer Notice.

[34] This analysis demonstrates it is at least arguable that, if CAPL is found liable to pay compensation or damages to the Fuel Companies, there is sufficient connection between that liability and CAPL's entitlement to claim unpaid licence fees that equitable set-off would be available to the Fuel Companies,[4] in circumstances where:

(a) the licence fees claimed by CAPL (whether under the 1994 Licence or the 2015 Licence) relate to the JUHI, the loss of which forms the basis for the Fuel Companies' claims against CAPL; and

(b) the claims against CAPL arise in part from the 1994 Licence, being the basis for CAPL's alternative claim for unpaid licence fees.

[35] Consistently with the equitable set-off being arguable, CAPL does not submit that it is liable to be dealt with summarily under r 173(3)(b). Instead CAPL argues that, for reasons of convenience, the court should exclude the determination of the set-off from the trial of its claim. That is an important consideration in circumstances where a characteristic of equitable set-off is that it operates as a true and substantive defence to a claim.[5] Although r 173(3)(a) confers a discretion on the court to order that the set-off be dealt with in a separate proceeding, the effect of exercising that discretion in the circumstances of this case would be to prevent the Fuel Companies from relying upon an arguable defence to CAPL's claim. That would be a significant step to take. None of the authorities relied on by CAPL involved the court ordering that, because of matters of convenience, a set-off be dealt with in a separate proceeding where the effect of doing so would be to prevent the defendant from relying on the set-off as an arguable defence to the claim.

[36] Further, the Fuel Companies' ability to rely on a defence of set-off may prove to be significant in this case in circumstances where the claims the Fuel Companies seek to set-off against their liability to pay licence fees would (if established) arise from the JUHI participants losing ownership of the JUHI and fuel depot assets when Cairns Airport was privatised in 2008. The Fuel Companies maintain that those claims are not statute-barred. Nevertheless, they recognise the potential for CAPL to contend to the contrary. Against that possibility, the Fuel Companies seek to rely upon authority that an equitable set-off would not be prevented by application of a limitation period if it would be unconscionable in the circumstances.[6] On that basis, they submit that if their claims against CAPL are time-barred then it is particularly important that they be permitted to advance those claims as the basis for an equitable set-off in defence of CAPL's claim. I accept that submission. If the counterclaim and set-off are separated from the trial of CAPL's claim, the Fuel Companies will be prevented from relying upon equitable set-off to reduce their liability to CAPL and the potential for such a defence to overcome the application of a limitation period. To that extent, there is a risk that the Fuel Companies would be prejudiced by the proposed separation of the counterclaim and set-off.

Overlap of evidence relevant to the claim and the counterclaim

[37] CAPL's solicitor, Ms Hanson, deposes that the evidence for CAPL's claim will consist largely of documentary evidence supplemented by three or four lay witnesses to establish the timeline and content of negotiations concerning the 2015 Lease and 2015 Licence, the performance of those agreements between 2015 and 2018, the subsequent non-payment of licence fees and the amounts outstanding. It is also expected that CAPL would call a forensic accountant to give expert evidence about the calculation of the amount of unpaid licence fees.

[38] The Fuel Companies' solicitor, Ms Yeo, deposes to work that has been done to progress the proceeding since the issue as to ownership of the JUHI emerged. Ms Yeo deposes to having identified witnesses who might be called to give evidence about issues that arise in both the claim and the counterclaim, or to give evidence on an issue arising in the claim and a different issue in the counterclaim. The list of such witnesses is not finalised or settled. Ms Yeo expresses a concern that if the counterclaim is separated from the claim then separate affidavits would have to be prepared for witnesses who are called to give evidence in each proceeding, the process of proofing those witnesses before trial would happen twice and the witnesses would have to attend court for two separate trials.

[39] Ms Hanson accepts that several witnesses may be required to give evidence in relation to both the claim and the' counterclaim but says that the issues about which those witnesses would be required to give evidence on the claim would be different from those raised by the counterclaim such that there would be little, if any, overlap between the evidence in the separate trials.

[40] It follows from my finding that the issue whether the 1987 Lease (as varied) and the 1994 Licence remain on foot will have to be determined in both the claim and counterclaim that there must be some overlap between the evidence relevant to the claim and the evidence relevant to the counterclaim. On the material before me on the present application it is difficult to determine the extent of that overlap. Nevertheless, the existence of the overlap means I cannot accept CAPL's submission that there is only a low risk of inconvenience to witnesses who would be required to give evidence at two trials if the application to exclude the counterclaim and set-off from the trial of the claim is granted.

[41] Ms Hanson deposes that the evidence CAPL will rely upon in support of its claim is well progressed. Based on the scope of that evidence (see [37] above), she estimates that a trial of CAPL's claim would take approximately four to five days.

[42] As to the counterclaim, Ms Hanson deposes that the parties will need to:

(a) attend to disclosure of additional material relevant to issues raised by the counterclaim, spanning a period from 1987 to date;

(b) consider issuing notices of non-party disclosure to third parties who may hold relevant documents;

(c) obtain additional lay evidence regarding: the performance of the 1987 Lease (as varied) and the 1994 Licence; ownership of the JUHI; the transfer or acquisition of any rights with respect to the JUHI at various dates raised in the counterclaim; the construction of additions, alterations or extensions to the JUHI from 1987 to date; and potential defences to the breach of trust and breach of contract claims;

(d) engage relevant experts to undertake an audit and express their opinion about whether assets comprise part of the JUHI, and to value the JUHI, according to the terms of the relevant agreements, or on other bases contended for by the parties.

[43] Ms Hanson considers that these steps will not be completed until the second half of 2026. She estimates that a trial of the counterclaim would take at least another four to five days in addition to the time required to hear CAPL's claim.

[44] Ms Yeo accepts that Ms Hanson's description of the steps that are likely to be involved in preparing the counterclaim for trial, and the likely time for those steps, is reasonable, but expresses the view that the claim is unlikely to proceed much more quickly if the counterclaim is separated, than if the counterclaim remains part of the present proceeding.

[45] I accept that, having regard to the legal and factual complexity of issues raised by the counterclaim, the trial of CAPL's claim is likely to occur later if the counterclaim remains part of this proceeding than if the present application is granted and the claim is tried separately from the counterclaim and set-off. That delay in the time to trial is a relevant consideration which favours separation, particularly in circumstances where the Fuel Companies have not paid licence fees to CAPL since 2018.

[46] CAPL goes further and submits that, where there is no dispute that some amount of licence fees is owed, the interests of justice favour resolving that issue promptly. Following the (albeit recent) pleading of the defence of set-off it is no longer the case that there is no dispute that the Fuel Companies owe something to CAPL. Whatever may be the merits of CAPL's criticisms concerning the time the Fuel Companies have taken to formulate their counterclaim and plead the defence of set-off, those criticisms do not change the fact that an arguable defence of set-off has now been pleaded. That is the context in which this application must be determined. CAPL's criticisms of the time taken to plead the set-off does not lessen the force of the matters discussed at [35]-[36] above.

[47] Further, delay in the time to trial of CAPL's claim if the counterclaim is not excluded from this proceeding must be balanced against the likely delay in the time to trial of the counterclaim if the present application is granted and the counterclaim is tried separately from, and after, CAPL's claim. As explained above, the determination of the claim will turn upon the issue whether the 1987 Lease (as varied) and the 1994 Licence remain in effect, or whether they were replaced, initially by the 2005 Lease and the 2005 Licence and later by the 2015 Lease and the 2015 Licence. If CAPL's claim is determined separately from and before the counterclaim, the resolution of that issue will give rise to an issue estoppel as between CAPL and the Fuel Companies where the same issue arises in the determination of the counterclaim. In those circumstances, it seems likely that any appeal from the determination of CAPL's claim would have to be completed before the trial of the counterclaim could proceed. This would involve the risk of substantial delay in the time to trial of the counterclaim.

[48] Likewise, the shorter time to trial and reduced cost at trial if CAPL's claim is heard separately must be balanced against the prospect of greater inefficiencies in preparing for and conducting two trials rather than a single trial where both the claim and the counterclaim are determined. Ms Yeo deposes that the work required to be completed to prepare for the hearing of the claim and the counterclaim will be far less efficient if the application to separate the counterclaim is granted and the parties are required to perform similar tasks in two proceedings, including steps relating to the counterclaim that might already have been performed in relation to the claim.

[49] As to disclosure, Ms Yeo says that based on searches undertaken to date, documents for disclosure fall into two groups: documents that are relevant to the issues in both the claim and the counterclaim; and documents that are only relevant to the issues in either the claim or the counterclaim. If the application to separate the counterclaim is granted then the parties will have to undertake disclosure twice, including by reviewing documents for disclosure in the counterclaim which would previously have been reviewed for disclosure in the claim. This would not be an efficient use of the parties' time or financial resources.

[50] To similar effect, Ms Yeo deposes that the defendants are considering issuing notices of non-party disclosure to two non-parties. She expects that those notices will seek documents that are relevant to the issues in both the claim and the counterclaim. If the counterclaim is separated from the claim, notices will need to be sent in two separate proceedings seeking disclosure, at least in part, of the same documents. Again, this would be a waste of time and money for the parties, and for the non-parties to whom the notices are to be directed.

[51] I do not accept CAPL's submission that because the issues in the claim and the counterclaim are distinct, so will disclosure be. As already explained, the issues raised by the claim are not entirely distinct from the issues raised by the counterclaim. Even if they were, CAPL's submission overlooks the prospect that the same documents would have to be reviewed twice; first to determine their relevance to the claim and later to determine their relevance to the counterclaim. I accept Ms Yeo's evidence that exclusion of the counterclaim from the trial of CAPL's claim carries the inherent risk that there will be double handling of documents. However, again, on the material before me it is difficult to determine the likely extent of the resulting inefficiencies in time and costs.

[52] In addition to the potential inefficiencies identified by Ms Yeo, the involvement of QAHCPL as an additional party to the counterclaim must be considered. If CAPL's application is granted and the counterclaim is heard separately from and after CAPL's claim then, unlike the position as between CAPL and the Fuel Companies (see [47] above), there would be no issue estoppel binding QAHCPL on the question whether the 1987 Lease (as varied) and the 1994 Licence remain in effect. Consequently, however that question might be answered on the determination of CAPL's claim, QAHCPL would be free to contend for a different answer on a separate trial of the counterclaim. That involves the potential for inconsistent findings. Even if the issue is ultimately resolved in the same way in the claim and at a separate trial of the counterclaim, there would be increased time and cost involved in the same issue being determined at two trials rather than at a single trial of both the claim and the counterclaim. Both the risk of inconsistent findings at separate trials and the increased time and cost involved in separate trials weighs against excluding the counterclaim from this proceeding.

[53] Weighing the various matters discussed above, and acknowledging the increased complexity of the issues raised by the counterclaim and the delay in the time to the trial of the claim if CAPL's application is refused, I am not persuaded that it is appropriate to order that the counterclaim, and the defence of equitable set-off pleaded in reliance upon that counterclaim, be tried separately from the claim for unpaid licence fees.

[54] Ultimately, I am not satisfied that CAPL has clearly made out the utility, economy and fairness to both parties of making the orders it seeks.

[55] In those circumstances, CAPL's application will be dismissed.

[1] Gunns Ltd v Alishah [2009] TASSC 45; (2009) 19 Tas R 38, 51 [40]; St Barbara Ltd v Hockley [2013] WASC 283, [18].

[2] Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1, 55 [168]-[170]; Lansdale Pty Ltd v Moore [2009] WASCA 176 [19]-[21].

[3] Lansdale Pty Ltd v Moore [2009] WASCA 176 [19]; Callide Power Management Pty Ltd v Callide Coalfields (Sales) Pty Ltd (No 3) [2015] QSC 295, [44].

[4] Forsyth v Gibbs [2008] QCA 103; [2009] 1 Qd R 403, [9]-[12]; Goldsmith v AMP Life Ltd [2021] QCA 20; [2021] 7 QR 113, [40]-[46].

[5] Re Partnership Pacific Securities Ltd [1994] 1 Qd R 410, 425.

[6] K & A Laird Pty Ltd (NSW) Pty Ltd v Aizdan Pty Ltd (in liq) [2023] NSWSC 603, [222].