Beames v State of Queensland - [2010] QSC 4

SUPREME COURT OF QUEENSLAND

CITATION:

Beames v State of Queensland [2010] QSC 4

PARTIES:

BEAMES, Douglas Macleod
(applicant)
v
THE STATE OF QUEENSLAND
(respondent)

FILE NO/S:

SC No 12359 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 January 2010

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2009

JUDGE:

Margaret Wilson J

ORDER:

Application dismissed with costs.

CATCHWORDS:

BANKRUPTCY – EFFECT ON CAUSES OF ACTION – where applicant an undischarged bankrupt – where applicant was previously the registered proprietor of certain land – where respondent is State of Queensland – where applicant seeks orders under the Land Title Act 1994 (Qld) – where application made without consent of the trustee in bankruptcy – where land has been transferred to purchasers and applicant has no legal title to it – where there has been protracted dispute between applicant and respondent as to location of boundary of the land and adjacent Crown land – where respondent had commenced proceedings seeking declaratory relief and applicant counterclaimed for declaratory relief as to true area of land and position of the boundary, and for damages – where applicant was subsequently declared bankrupt – where trustees in bankruptcy deemed to have abandoned the counterclaim – whether applicant has standing to bring application or to prosecute counterclaim – whether leave to bring application could be obtained under s 60 Bankruptcy Act 1966 (Cth) – whether Court could give applicant leave to proceed with counterclaim under r 72 of the Uniform Civil Procedure Rules 1999 (Qld)

CROWN PROCEEDINGS – whether Crown Solicitor could represent the State in application

Bankruptcy Act 1966 (Cth), s 5, s 58, s 58(3)(b), s 60)1), s 60(2), s 60(3), s 60(4), s 116
Crown Proceedings Act 1980 (Qld), s 19
Judicial Review Act 1991 (Qld)
Land Title Act 1994 (Qld), s 184, s 188(1)(b), s188(2), s 188B(1)(b), s 188B(2) , s 188BB(3)(a), s188B(3)(b)

Uniform Civil Procedure Rules 1999 (Qld), r 72(1), r 72(2), r 389(2)

Abeyratnev Trkulja (1998) 90 FCR 253, cited
Beames v Leader [2000] 1 Qd R 347, referred to

Cummings v Claremont Petroleum NL (1996) 185 CLR 124,

cited

Daemar v Industrial Commission (NSW) [No 2] (1990) 22

NSWLR 178, cited

Francis v National Mutual Life Association of A/asia Ltd [1999] 2 Qd R 355, cited

Freeman v Joiner (2005) 3 ABC(NS) 332, cited

Freeman v National Australia Bank Ltd [2006] QCA 260,

cited

Pegler v Dale (1975) 1 NSWLR 265, cited

State of Queensland v Beames [2001] QSC 132, referred to
State of Queensland v Beames [2002] QCA 209, referred to

State of Queensland v Beames [2004] QSC 399, considered

Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R

173, cited

Re Faulkner; Ex parte Official Receiver (1981) 52 FLR 109, cited

Tyler v Custom Credit Corp Ltd [2000] QCA 178, cited

COUNSEL:

The applicant appeared in person.

DD Keane for the respondent

SOLICITORS:

Crown Solicitor for the respondent

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.

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Details

Case: [2010] QSC 4
Decision Date: 19 January 2010

CaseChat Overview and Summary

The case of Beames v State of Queensland involves the applicant, who was previously the registered proprietor of certain land, seeking orders under the Land Title Act 1994 (Qld). The applicant has been declared an undischarged bankrupt and the respondent is the State of Queensland. The applicant made an application without the consent of the trustee in bankruptcy. The land has since been transferred to other purchasers, and the applicant no longer holds legal title. The dispute between the applicant and the respondent centres around the location of the boundary of the land and adjacent Crown land. The respondent had initiated proceedings for declaratory relief, to which the applicant responded with a counterclaim for declaratory relief concerning the true area of the land and the boundary's position, as well as damages. After the applicant's bankruptcy, the trustees in bankruptcy abandoned the counterclaim. The central legal issues were whether the applicant had standing to bring the application or prosecute the counterclaim, if leave could be obtained under section 60 of the Bankruptcy Act 1966 (Cth) to proceed with the application, and if the court could grant leave to proceed with the counterclaim under rule 72 of the Uniform Civil Procedure Rules 1999 (Qld). Additionally, the court considered whether the Crown Solicitor could represent the State in the application.

The court examined the legal principles surrounding bankruptcy and its impact on causes of action, as well as the rules governing leave to proceed with legal proceedings. It noted that the applicant's bankruptcy resulted in the abandonment of the counterclaim, and thus, the applicant's standing to prosecute the counterclaim was compromised. The court found that the applicant did not have standing to bring the application or prosecute the counterclaim. The court also concluded that leave under section 60 of the Bankruptcy Act 1966 (Cth) could not be granted because the application did not relate to the applicant's estate in bankruptcy. Regarding the counterclaim, the court found that leave under rule 72 of the Uniform Civil Procedure Rules 1999 (Qld) could not be granted because the application was not in the interest of justice. Lastly, the court determined that the Crown Solicitor was not disqualified from representing the State in the application.

The court dismissed the application with costs, finding that the applicant did not have the requisite standing to bring the application or prosecute the counterclaim. Additionally, the court ruled that leave under section 60 of the Bankruptcy Act 1966 (Cth) could not be granted, and leave under rule 72 of the Uniform Civil Procedure Rules 1999 (Qld) was not appropriate. The Crown Solicitor was deemed not to be disqualified from representing the State in the application. The orders made were for the application to be dismissed with costs.

Orders

Orders of the court

Application dismissed with costs.

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:	Beames v State of Queensland [2010] QSC 4
PARTIES:	BEAMES, Douglas Macleod (applicant) v THE STATE OF QUEENSLAND (respondent)
FILE NO/S:	SC No 12359 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 January 2010
DELIVERED AT:	Brisbane
HEARING DATE:	10 December 2009
JUDGE:	Margaret Wilson J
ORDER:	Application dismissed with costs.
CATCHWORDS:	BANKRUPTCY – EFFECT ON CAUSES OF ACTION – where applicant an undischarged bankrupt – where applicant was previously the registered proprietor of certain land – where respondent is State of Queensland – where applicant seeks orders under the Land Title Act 1994 (Qld) – where application made without consent of the trustee in bankruptcy – where land has been transferred to purchasers and applicant has no legal title to it – where there has been protracted dispute between applicant and respondent as to location of boundary of the land and adjacent Crown land – where respondent had commenced proceedings seeking declaratory relief and applicant counterclaimed for declaratory relief as to true area of land and position of the boundary, and for damages – where applicant was subsequently declared bankrupt – where trustees in bankruptcy deemed to have abandoned the counterclaim – whether applicant has standing to bring application or to prosecute counterclaim – whether leave to bring application could be obtained under s 60 Bankruptcy Act 1966 (Cth) – whether Court could give applicant leave to proceed with counterclaim under r 72 of the Uniform Civil Procedure Rules 1999 (Qld) CROWN PROCEEDINGS – whether Crown Solicitor could represent the State in application Bankruptcy Act 1966 (Cth), s 5, s 58, s 58(3)(b), s 60)1), s 60(2), s 60(3), s 60(4), s 116 Crown Proceedings Act 1980 (Qld), s 19 Judicial Review Act 1991 (Qld) Land Title Act 1994 (Qld), s 184, s 188(1)(b), s188(2), s 188B(1)(b), s 188B(2) , s 188BB(3)(a), s188B(3)(b) Uniform Civil Procedure Rules 1999 (Qld), r 72(1), r 72(2), r 389(2) Abeyratnev Trkulja (1998) 90 FCR 253, cited Beames v Leader [2000] 1 Qd R 347, referred to Cummings v Claremont Petroleum NL (1996) 185 CLR 124, cited Daemar v Industrial Commission (NSW) [No 2] (1990) 22 NSWLR 178, cited Francis v National Mutual Life Association of A/asia Ltd [1999] 2 Qd R 355, cited Freeman v Joiner (2005) 3 ABC(NS) 332, cited Freeman v National Australia Bank Ltd [2006] QCA 260, cited Pegler v Dale (1975) 1 NSWLR 265, cited State of Queensland v Beames [2001] QSC 132, referred to State of Queensland v Beames [2002] QCA 209, referred to State of Queensland v Beames [2004] QSC 399, considered Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173, cited Re Faulkner; Ex parte Official Receiver (1981) 52 FLR 109, cited Tyler v Custom Credit Corp Ltd [2000] QCA 178, cited
COUNSEL:	The applicant appeared in person. DD Keane for the respondent
SOLICITORS:	Crown Solicitor for the respondent