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Bartha v O'Riordan

Bartha v O'Riordan

Case [2004] QSC 205 25 June 2004

Unconscionable Conduct

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SUPREME COURT OF QUEENSLAND

CITATION:

Bartha v O’Riordan [2004] QSC 205

PARTIES:

MARIA BARTHA
(applicant plaintiff)
v
MARIA O’RIORDAN
(respondent defendant)

FILE NO:

S12013/03

DIVISION:

Trial Division

PROCEEDING:

Application for summary judgment

DELIVERED ON:

25 June 2004

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2004

JUDGE:

Wilson J

ORDER:

IT IS DECLARED THAT:

1.   The Plaintiff is the sole legal and equitable owner of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane.

IT IS ORDERED THAT:

2.   The Defendant within 60 days of the date hereof deliver up to the Plaintiff vacant possession of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane.

3.   The Defendant, whether by herself or by her servants or agents or otherwise howsoever, be permanently restrained from occupying, using or otherwise being in possession of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane, or being upon, remaining upon or coming on to same except with the permission of the Plaintiff after 60 days from the date hereof.

4.   There be judgment for the Plaintiff in the amount of $17,200.00.

5.   The Defendant pay the Plaintiff’s costs of the proceeding to be assessed.

6.   If an appeal to the Court of Appeal is filed within 28 days of today, these orders all be stayed until the determination of the appeal.

CATCHWORDS:

REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – JOINT TENANCY AND TENANCY IN COMMON – SEVERANCE – IN FAMILY LAW MATTERS – whether joint tenancy was severed during lifetime of joint tenant – whether joint tenant had acquired title by adverse possession to the plaintiff’s undivided share – authority of defendant to represent estate – where intended beneficiaries are deprived of benefit under will – whether unconscionable for holder of legal title to deny equitable or beneficial interest in property.

Land Title Act 1994 (Qld), s.59
Limitation of Actions Act 1974 (Qld), ss. 13, 14(1) and 22
Public Trustee Act 1978 (Qld), ss. 29 and 35
Uniform Civil Procedure Rules 1999 (Qld), rule 292

Limitation Act 1935 (WA), s. 14

Baumgartner v Baumgartner (1987) 164 CLR 137

Bryson v Bryant (1992) 29 NSWLR 188
Chambers v Donaldson (1809) 11 East 65; 103 ER 929
Coles-Smith v Smith [1965] Qd R 494
Corin v Patton (1989 - 1990) 169 CLR 540
Culley v Doe d Taylerson (1840) 11 Ad. & El. 1008; 113 ER 697
Giulmelli v Giumelli (1998) 196 CLR 101
Jones v Chapman (1849) 2 Ex 803; 18 LJ Ex 456
Muschinski v Dodds (1985-1986) 160 CLR 583
Powell v…

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 Bartha v O'Riordan

Details

AGLC: Bartha v O'Riordan [2004] QSC 205
Case: [2004] QSC 205
Decision Date: 25 June 2004

CaseChat Overview and Summary

In the case of Bartha v O'Riordan, the plaintiff sought to establish ownership over a property at 36 Merton Road, Woolloongabba, by proving that the defendant's claim to joint tenancy was invalid. The dispute involved intricate questions of property law, specifically concerning the nature of the tenancy and the validity of adverse possession claims. The case was heard and determined by the Supreme Court of Queensland.

The central legal issues revolved around whether the joint tenancy was severed during the lifetime of one of the joint tenants, whether the defendant had acquired title through adverse possession to the plaintiff's undivided share, and whether it was unconscionable for the holder of the legal title to deny the plaintiff's equitable or beneficial interest in the property. Additionally, the court needed to determine the authority of the defendant to represent the estate and the implications for intended beneficiaries deprived of benefits under a will.

The Court concluded that the plaintiff was the sole legal and equitable owner of the property. The reasoning included a detailed examination of the evidence concerning the severance of the joint tenancy and the lack of valid adverse possession. The Court found that the defendant had no legitimate claim to the property and that it was unconscionable for her to deny the plaintiff's interest. Consequently, the Court ordered that the defendant deliver up vacant possession of the property and be restrained from occupying or using it. The Court also awarded damages and costs to the plaintiff.

The final orders declared the plaintiff as the sole legal and equitable owner of the property and mandated the defendant to vacate the premises within 60 days. The defendant was permanently restrained from any future possession or occupation of the property without the plaintiff's consent. The Court further ordered the defendant to pay damages and the plaintiff's costs. If an appeal was filed, the orders would be stayed pending the appeal's resolution.

Orders

Orders of the court

IT IS DECLARED THAT:

1. The Plaintiff is the sole legal and equitable owner of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane.

IT IS ORDERED THAT:

2. The Defendant within 60 days of the date hereof deliver up to the Plaintiff vacant possession of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane.

3. The Defendant, whether by herself or by her servants or agents or otherwise howsoever, be permanently restrained from occupying, using or otherwise being in possession of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane, or being upon, remaining upon or coming on to same except with the permission of the Plaintiff after 60 days from the date hereof.

4. There be judgment for the Plaintiff in the amount of $17,200.00.

5. The Defendant pay the Plaintiff’s costs of the proceeding to be assessed.

6. If an appeal to the Court of Appeal is filed within 28 days of today, these orders all be stayed until the determination of the appeal.

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.

Citations

AGLC Citation

Bartha v O'Riordan [2004] QSC 205

Most Recent Citation

Lo v Mr [2018] QDC 5

Cases citing this decision · 1 of 1 shown

Lo v Mr
[2018] QDC 5 Para 1

…e plaintiffs should be dismissed on a summary basis. [109]Exhibit 1. [110] Wright v Gibbons (1949) 78 CLR 313 at p 323. [111][2000] QCA 391. [112][2004] QSC 205.…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Smeaton v Pattison
[2002] QSC 431 Para 1

…by one joint tenant, but this did not come into effect until after Mr Baranyi's death.) It cannot be severed by devise in a will; Smeaton v Pattison [2002] QSC 431 at [3]; [11]. In his submission there were no facts pleaded by the defendant capable of constituting a severance of the joint tenancy. I accept these…
Sprott v Harper
[2000] QCA 391 Para 1

…or assumption between them that their interests are held as tenants in common: Corin v Patton (1989 - 1990) 169 CLR 540 at 546 - 547; Sprott v Harper [2000] QCA 391 at [7]; [8]. (Section 59 of the Land Title Act 1994 introduced a another way of unilaterally severing a joint tenancy, namely by the registration of…
Giumelli v Giumelli
[1999] HCA 10 Para 1

…relief given being the minimum relief necessary to do justice between the parties: Bryson v Bryant (1992) 29 NSWLR 188 at 202; Giulmelli v Giumelli (1998) 196 CLR 101 at 113.…
Radonich v Radonich
[1999] WASC 165 Para 1

…. Counsel for the defendant submitted that that presumption was reversed by s 22 of the Limitation of Actions Act. He referred to Radonich v Radonich [1999] WASC 165, in which the differently worded s 14 of the Limitation Act 1935 (WA) was considered. For present purposes, I accept his submission as a correct stat…
Bryson v Bryant
[1993] HCATrans 134 Para 1

…nconscionable conduct: Muschinski v Dodds (1985-1986) 160 CLR 583 at 615, 616; Baumgartner v Baumgartner (1987) 164 CLR 137 at 148; Bryson v Bryant (1992) 29 NSWLR 188 at 196. Even then, the extent of the beneficial ownership afforded by way of constructive trust is a matter for the Court, the relief given being the m…
Corin v Patton
[1990] HCA 12 Para 1

…nduct sufficient to indicate an intention or assumption between them that their interests are held as tenants in common: Corin v Patton (1989 - 1990) 169 CLR 540 at 546 - 547; Sprott v Harper [2000] QCA 391 at [7]; [8]. (Section 59 of the Land Title Act 1994 introduced a another way of unilaterally severing a…
Baumgartner v Baumgartner
[1987] HCA 59 Para 1

…st another will not, in itself, amount to unconscionable conduct: Muschinski v Dodds (1985-1986) 160 CLR 583 at 615, 616; Baumgartner v Baumgartner (1987) 164 CLR 137 at 148; Bryson v Bryant (1992) 29 NSWLR 188 at 196. Even then, the extent of the beneficial ownership afforded by way of constructive trust is a matter…
Muschinski v Dodds
[1985] HCA 78 Para 1

…tance for the legal owner to assert ownership against another will not, in itself, amount to unconscionable conduct: Muschinski v Dodds (1985-1986) 160 CLR 583 at 615, 616; Baumgartner v Baumgartner (1987) 164 CLR 137 at 148; Bryson v Bryant (1992) 29 NSWLR 188 at 196. Even then, the extent of the beneficial o…
Culley v Doe d Taylerson
113 ER 697 Para 1

…behalf of them all, so that all the joint tenants continued in possession and time could not run: Culley v Doe d Taylerson (1840) 11 Ad. & El. 1008; 113 ER 697). Counsel for the defendant submitted that that presumption was reversed by s 22 of the Limitation of Actions Act. He referred to Radonich v Radonich…
Chambers v Donaldson
(1809) 11 East 65 Para 1

…ut also showing that he or she acted under the authority of that other person. See Coles-Smith v Smith [1965] Qd R 494 at 501; Chambers v Donaldson (1809) 11 East 65 at 74, 76; 103 ER 929 at 932, 933 and Jones v Chapman (1849) 2 Ex 803; 18 LJ Ex 456 at 458, 459, 460. As a beneficiary, the defendant does not have the…
Chambers v Donaldson
103 ER 929 Para 1

…e acted under the authority of that other person. See Coles-Smith v Smith [1965] Qd R 494 at 501; Chambers v Donaldson (1809) 11 East 65 at 74, 76; 103 ER 929 at 932, 933 and Jones v Chapman (1849) 2 Ex 803; 18 LJ Ex 456 at 458, 459, 460. As a beneficiary, the defendant does not have the requisite authority t…
Jones v Chapman
118 ER 907 Para 1

…of that other person. See Coles-Smith v Smith [1965] Qd R 494 at 501; Chambers v Donaldson (1809) 11 East 65 at 74, 76; 103 ER 929 at 932, 933 and Jones v Chapman (1849) 2 Ex 803; 18 LJ Ex 456 at 458, 459, 460. As a beneficiary, the defendant does not have the requisite authority to represent the estate.…

Legislation cited in this decision · 5

Limitation of Actions Act 1974 (Qld)
13, 14(1), 22 4 mentions (from Para 1)
Public Trustee Act 1978 (Qld)
29, 35 3 mentions (from Para 1)
Land Title Act 1994 (Qld)
59 2 mentions (from Para 1)
Limitation Act 1935 (WA)
14 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
1 mention

CITATION:	Bartha v O’Riordan [2004] QSC 205
PARTIES:	MARIA BARTHA (applicant plaintiff) v MARIA O’RIORDAN (respondent defendant)
FILE NO:	S12013/03
DIVISION:	Trial Division
PROCEEDING:	Application for summary judgment
DELIVERED ON:	25 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	5 April 2004
JUDGE:	Wilson J
ORDER:	IT IS DECLARED THAT: 1. The Plaintiff is the sole legal and equitable owner of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane. IT IS ORDERED THAT: 2. The Defendant within 60 days of the date hereof deliver up to the Plaintiff vacant possession of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane. 3. The Defendant, whether by herself or by her servants or agents or otherwise howsoever, be permanently restrained from occupying, using or otherwise being in possession of the property situated at 36 Merton Road, Woolloongabba, comprised in certificate of title No. 12744181 being Lot 3 on Registered Plan 12220 and situated in the County of Stanley, Parish of South Brisbane, or being upon, remaining upon or coming on to same except with the permission of the Plaintiff after 60 days from the date hereof. 4. There be judgment for the Plaintiff in the amount of $17,200.00. 5. The Defendant pay the Plaintiff’s costs of the proceeding to be assessed. 6. If an appeal to the Court of Appeal is filed within 28 days of today, these orders all be stayed until the determination of the appeal.
CATCHWORDS:	REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – JOINT TENANCY AND TENANCY IN COMMON – SEVERANCE – IN FAMILY LAW MATTERS – whether joint tenancy was severed during lifetime of joint tenant – whether joint tenant had acquired title by adverse possession to the plaintiff’s undivided share – authority of defendant to represent estate – where intended beneficiaries are deprived of benefit under will – whether unconscionable for holder of legal title to deny equitable or beneficial interest in property.
Land Title Act 1994 (Qld), s.59 Limitation of Actions Act 1974 (Qld), ss. 13, 14(1) and 22 Public Trustee Act 1978 (Qld), ss. 29 and 35 Uniform Civil Procedure Rules 1999 (Qld), rule 292 Limitation Act 1935 (WA), s. 14 Baumgartner v Baumgartner (1987) 164 CLR 137 Bryson v Bryant (1992) 29 NSWLR 188 Chambers v Donaldson (1809) 11 East 65; 103 ER 929 Coles-Smith v Smith [1965] Qd R 494 Corin v Patton (1989 - 1990) 169 CLR 540 Culley v Doe d Taylerson (1840) 11 Ad. & El. 1008; 113 ER 697 Giulmelli v Giumelli (1998) 196 CLR 101 Jones v Chapman (1849) 2 Ex 803; 18 LJ Ex 456 Muschinski v Dodds (1985-1986) 160 CLR 583 Powell v…