AB & Ors v. IJ & Ors - [2008] QSC 46

SUPREME COURT OF QUEENSLAND

CITATION:

AB & Ors v IJ & Ors [2008] QSC 046

PARTIES:

AB
First Plaintiff/First Defendant by Counterclaim
and
CD
Second Plaintiff/Second Defendant by Counterclaim
and
EF
Third Plaintiff/Third Defendant by Counterclaim
and
GH
Fourth Plaintiff/Fourth Defendant by Counterclaim

v

IJ
Defendant/Plaintiff by Counterclaim
and
KL
Fifth Defendant by Counterclaim
and
MN
Sixth Defendant by Counterclaim
and
OP
Seventh Defendant by Counterclaim
and
QR
Eighth Defendant by Counterclaim
and
ST
Ninth Defendant by Counterclaim
and
UV
Tenth Defendant by Counterclaim

FILE NO/S:

10963 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

28 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2008

JUDGE:

White J

ORDER:

1.         Caveat numbered 711064975 insofar as it relates to the “Crump Street property” described as Lots 33 and 34 on Registered Plan 38083, County of Stanley, Parish of Yeerongpilly, Title References 12113248 and 12113180 and “35 Sentinel Court” Cleveland described as Lot 416 on Crown Plan SL12471, County of Stanley, Parish of Cleveland, Title Reference 17255029 be removed.

2.         Caveat numbered 711444699 dated 21 February 2008 and lodged by KL Pty Ltd to prevent dealings with 35 Sentinel Court, Cleveland described as Lot 416 on Crown Plan SL12471, County of Stanley, Parish of Cleveland, Title Reference 17255029 be removed.

3.         Caveat numbered 711300726 be retained subject to the following conditions:-

(a)     that the Plaintiffs, by 7 March 2008, pay or cause to be paid all outstanding rates and land tax (including accrued interest) on the properties set out in the schedule which is exhibited at page 23 of exhibit EEM3 to the affidavit of Emma Elizabeth Mawson filed on 11 February 2008.

(b)     that the Plaintiffs maintain or cause to be maintained payment of all continuing rates and land tax (including accrued interest on any late payment) on the properties the subject of paragraph 3(a) hereof until further agreement between the parties or order of the Court.

(c)     that the Plaintiffs pay the Applicant the sum of $1,250.00 every Tuesday from and including 12 February 2008, to be paid to the Applicant’s solicitors’ trust account until further agreement between the parties or order of the Court, the first payment (including arrears) to be made on 4 March 2008.

(d)     That AB and CD and MN guarantee the reasonable legal fees incurred by the Applicant at the conclusion of the proceedings in respect of defending the claim and prosecuting the counterclaim up to a maximum amount of $100,000.00, such guarantee to be provided in writing to the applicant’s solicitors by 7 March 2008.

4.         The proceeding be placed on the Supervised Case List.

5.         Costs reserved.

6.         The application seeking certain injunctive relief filed by the Plaintiffs on 19 February 2008 be dismissed with costs reserved.

7.         There be liberty to apply on three (3) days notice.

CATCHWORDS:

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – WHO MAY LODGE –where party lodging caveat is party to a broader agreement but has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB & Ors v. IJ & Ors

Details

AGLC: AB v IJ [2008] QSC 46
Case: [2008] QSC 46
Decision Date: 28 February 2008

CaseChat Overview and Summary

AB and others brought a case against IJ and others in a court in Australia. The dispute involves the validity of caveats lodged against certain properties and the ability of parties to lodge caveats under the Torrens system. The legal issues to be decided include who is entitled to lodge a caveat under the Property Law Act 1974, particularly when the party lodging the caveat has an interest arising out of section 55 of the Act, and whether the caveat should be removed or retained based on the balance of convenience and the vulnerability of assets to dissipation. The court examined the character and validity of the transfer of the property and the undertakings provided to cover the expenses of the party restrained from dealing with the property. The court concluded that some caveats should be removed, while others should be retained subject to certain conditions, such as the payment of outstanding rates and land tax and the provision of a guarantee for legal fees. The court also ordered the case to be placed on the Supervised Case List, dismissed an application for injunctive relief, and reserved costs. The parties have the liberty to apply for further relief on three days' notice.

Orders

Orders of the court

1. Caveat numbered 711064975 insofar as it relates to the “Crump Street property” described as Lots 33 and 34 on Registered Plan 38083, County of Stanley, Parish of Yeerongpilly, Title References 12113248 and 12113180 and “35 Sentinel Court” Cleveland described as Lot 416 on Crown Plan SL12471, County of Stanley, Parish of Cleveland, Title Reference 17255029 be removed.

2. Caveat numbered 711444699 dated 21 February 2008 and lodged by KL Pty Ltd to prevent dealings with 35 Sentinel Court, Cleveland described as Lot 416 on Crown Plan SL12471, County of Stanley, Parish of Cleveland, Title Reference 17255029 be removed.

3. Caveat numbered 711300726 be retained subject to the following conditions:-

(a) that the Plaintiffs, by 7 March 2008, pay or cause to be paid all outstanding rates and land tax (including accrued interest) on the properties set out in the schedule which is exhibited at page 23 of exhibit EEM3 to the affidavit of Emma Elizabeth Mawson filed on 11 February 2008.

(b) that the Plaintiffs maintain or cause to be maintained payment of all continuing rates and land tax (including accrued interest on any late payment) on the properties the subject of paragraph 3(a) hereof until further agreement between the parties or order of the Court.

(c) that the Plaintiffs pay the Applicant the sum of $1,250.00 every Tuesday from and including 12 February 2008, to be paid to the Applicant’s solicitors’ trust account until further agreement between the parties or order of the Court, the first payment (including arrears) to be made on 4 March 2008.

(d) That AB and CD and MN guarantee the reasonable legal fees incurred by the Applicant at the conclusion of the proceedings in respect of defending the claim and prosecuting the counterclaim up to a maximum amount of $100,000.00, such guarantee to be provided in writing to the applicant’s solicitors by 7 March 2008.

4. The proceeding be placed on the Supervised Case List.

5. Costs reserved.

6. The application seeking certain injunctive relief filed by the Plaintiffs on 19 February 2008 be dismissed with costs reserved.

7. There be liberty to apply on three (3) days notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AB & Ors v IJ & Ors [2008] QSC 046
PARTIES:	AB First Plaintiff/First Defendant by Counterclaim and CD Second Plaintiff/Second Defendant by Counterclaim and EF Third Plaintiff/Third Defendant by Counterclaim and GH Fourth Plaintiff/Fourth Defendant by Counterclaim v IJ Defendant/Plaintiff by Counterclaim and KL Fifth Defendant by Counterclaim and MN Sixth Defendant by Counterclaim and OP Seventh Defendant by Counterclaim and QR Eighth Defendant by Counterclaim and ST Ninth Defendant by Counterclaim and UV Tenth Defendant by Counterclaim
FILE NO/S:	10963 of 2007
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	28 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2008
JUDGE:	White J
ORDER:	1. Caveat numbered 711064975 insofar as it relates to the “Crump Street property” described as Lots 33 and 34 on Registered Plan 38083, County of Stanley, Parish of Yeerongpilly, Title References 12113248 and 12113180 and “35 Sentinel Court” Cleveland described as Lot 416 on Crown Plan SL12471, County of Stanley, Parish of Cleveland, Title Reference 17255029 be removed. 2. Caveat numbered 711444699 dated 21 February 2008 and lodged by KL Pty Ltd to prevent dealings with 35 Sentinel Court, Cleveland described as Lot 416 on Crown Plan SL12471, County of Stanley, Parish of Cleveland, Title Reference 17255029 be removed. 3. Caveat numbered 711300726 be retained subject to the following conditions:- (a) that the Plaintiffs, by 7 March 2008, pay or cause to be paid all outstanding rates and land tax (including accrued interest) on the properties set out in the schedule which is exhibited at page 23 of exhibit EEM3 to the affidavit of Emma Elizabeth Mawson filed on 11 February 2008. (b) that the Plaintiffs maintain or cause to be maintained payment of all continuing rates and land tax (including accrued interest on any late payment) on the properties the subject of paragraph 3(a) hereof until further agreement between the parties or order of the Court. (c) that the Plaintiffs pay the Applicant the sum of $1,250.00 every Tuesday from and including 12 February 2008, to be paid to the Applicant’s solicitors’ trust account until further agreement between the parties or order of the Court, the first payment (including arrears) to be made on 4 March 2008. (d) That AB and CD and MN guarantee the reasonable legal fees incurred by the Applicant at the conclusion of the proceedings in respect of defending the claim and prosecuting the counterclaim up to a maximum amount of $100,000.00, such guarantee to be provided in writing to the applicant’s solicitors by 7 March 2008. 4. The proceeding be placed on the Supervised Case List. 5. Costs reserved. 6. The application seeking certain injunctive relief filed by the Plaintiffs on 19 February 2008 be dismissed with costs reserved. 7. There be liberty to apply on three (3) days notice.
CATCHWORDS:	CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – WHO MAY LODGE –where party lodging caveat is party to a broader agreement but has…