Coleman v Penfold - [2019] QCA 98

SUPREME COURT OF QUEENSLAND

CITATION:

Coleman v Penfold [2019] QCA 98

PARTIES:

KEITH DAVID COLEMAN
(appellant)
v
KYLIE ANN PENFOLD
(respondent)

FILE NO/S:

Appeal No 10519 of 2018
DC No 2 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Beenleigh – Unreported, 30 August 2018 (Chowdhury DCJ)

DELIVERED ON:

24 May 2019

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2019

JUDGES:

Sofronoff P and McMurdo JA and Bowskill J

ORDERS:

1.   The appeal is allowed.

2.   The orders made on 30 August 2018 are set aside.

3. In substitution, the application under s 38 of the Property Law Act 1974 (Qld) is adjourned to the registry of the District Court at Beenleigh, to a date to be fixed, with no order as to the costs of that proceeding.

4. The appellant is directed to file, in the District Court at Beenleigh, an application for leave to apply for a property adjustment order under s 288(2) of the Property Law Act 1974 (Qld), or any other application seeking declarations as to the rights of the parties in relation to the Beenleigh property, within 14 days.

5.   The respondent pay the appellant’s costs of the appeal.

CATCHWORDS:

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – DISCRETION IN RELATION TO ORDERS – where the appellant and respondent are co-owners of a house – where the learned primary judge granted the respondent’s application for an order under s 38 of the Property Law Act 1974 (Qld) appointing statutory trustees for sale of the house – where the respondent was unrepresented at the hearing of the application – where the appellant sought an adjournment of the application to obtain legal advice and also due to medical issues – whether the primary judge erred in the exercise of the discretion not to adjourn the hearing of the application and therefore in granting the respondent’s application

Property Law Act 1974 (Qld), s 38, s 42, s 288

Ex parte Eimbart Pty Ltd [1982] Qd R 398, cited
Jandlee Pty Ltd v Haskings [2013] QDC 320, cited
Muller v Zielonkowsky [2006] QSC 265, cited
Ranger v Ranger[2009] QCA 226, cited
Re Permanent Trustee Nominees (Canberra) Ltd [1989] 1 Qd R 314, cited
Riches v Hogben [1985] 2 Qd R 292, cited
Riches v Hogben [1986] 1 Qd R 315, cited
SAM v IDP [2007] 2 Qd R 456; [2006] QSC 344, cited
Szymanska v Szymanski [2015] SASC 126, cited

COUNSEL:

M Horvath with S Lamb for the appellant
P G Jeffery for the respondent

SOLICITORS:

Jeff Horsey Solicitors for the appellant
Guy Sara & Associates for the respondent

SOFRONOFF P: I agree with the reasons of Bowskill J and the orders her Honour proposes.
McMURDO JA: I agree with Bowskill J.
BOWSKILL J: Mr Coleman and Ms Penfold were involved in a de facto relationship from about 1995 until 2007. They have two children, who are now adults. In…

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 Coleman v Penfold

Details

AGLC: Coleman v Penfold [2019] QCA 98
Case: [2019] QCA 98
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the case of Coleman v Penfold, the parties were co-owners of a house situated in Beenleigh, Queensland. The dispute arose when the respondent sought an order under section 38 of the Property Law Act 1974 (Qld) for the appointment of statutory trustees for the sale of the property, which was granted by the primary judge. The appellant, however, contested this decision and appealed to the court, arguing that the primary judge had erred in not adjourning the hearing to allow for legal representation and consideration of the appellant's medical issues. The court was required to determine whether the primary judge's decision to proceed without an adjournment was a proper exercise of discretion and if it was in accordance with the statutory provisions.

The court found that the primary judge had failed to consider the appellant's request for an adjournment and the implications of the respondent's unrepresented status. The court held that the primary judge should have exercised discretion to adjourn the hearing to ensure fairness and due process, especially considering the significant consequences of the order on the parties' property rights. The appeal was allowed, and the orders made by the primary judge were set aside. The application under section 38 of the Property Law Act 1974 (Qld) was adjourned to a future date, and the appellant was directed to file an application for leave to apply for a property adjustment order within 14 days. Additionally, the respondent was ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders made on 30 August 2018 are set aside.

3. In substitution, the application under s 38 of the Property Law Act 1974 (Qld) is adjourned to the registry of the District Court at Beenleigh, to a date to be fixed, with no order as to the costs of that proceeding.

4. The appellant is directed to file, in the District Court at Beenleigh, an application for leave to apply for a property adjustment order under s 288(2) of the Property Law Act 1974 (Qld), or any other application seeking declarations as to the rights of the parties in relation to the Beenleigh property, within 14 days.

5. The respondent pay the appellant’s costs 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Coleman v Penfold [2019] QCA 98
PARTIES:	KEITH DAVID COLEMAN (appellant) v KYLIE ANN PENFOLD (respondent)
FILE NO/S:	Appeal No 10519 of 2018 DC No 2 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Beenleigh – Unreported, 30 August 2018 (Chowdhury DCJ)
DELIVERED ON:	24 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2019
JUDGES:	Sofronoff P and McMurdo JA and Bowskill J
ORDERS:	1. The appeal is allowed. 2. The orders made on 30 August 2018 are set aside. 3. In substitution, the application under s 38 of the Property Law Act 1974 (Qld) is adjourned to the registry of the District Court at Beenleigh, to a date to be fixed, with no order as to the costs of that proceeding. 4. The appellant is directed to file, in the District Court at Beenleigh, an application for leave to apply for a property adjustment order under s 288(2) of the Property Law Act 1974 (Qld), or any other application seeking declarations as to the rights of the parties in relation to the Beenleigh property, within 14 days. 5. The respondent pay the appellant’s costs of the appeal.
CATCHWORDS:	REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – DISCRETION IN RELATION TO ORDERS – where the appellant and respondent are co-owners of a house – where the learned primary judge granted the respondent’s application for an order under s 38 of the Property Law Act 1974 (Qld) appointing statutory trustees for sale of the house – where the respondent was unrepresented at the hearing of the application – where the appellant sought an adjournment of the application to obtain legal advice and also due to medical issues – whether the primary judge erred in the exercise of the discretion not to adjourn the hearing of the application and therefore in granting the respondent’s application Property Law Act 1974 (Qld), s 38, s 42, s 288 Ex parte Eimbart Pty Ltd [1982] Qd R 398, cited Jandlee Pty Ltd v Haskings [2013] QDC 320, cited Muller v Zielonkowsky [2006] QSC 265, cited Ranger v Ranger[2009] QCA 226, cited Re Permanent Trustee Nominees (Canberra) Ltd [1989] 1 Qd R 314, cited Riches v Hogben [1985] 2 Qd R 292, cited Riches v Hogben [1986] 1 Qd R 315, cited SAM v IDP [2007] 2 Qd R 456; [2006] QSC 344, cited Szymanska v Szymanski [2015] SASC 126, cited
COUNSEL:	M Horvath with S Lamb for the appellant P G Jeffery for the respondent
SOLICITORS:	Jeff Horsey Solicitors for the appellant Guy Sara & Associates for the respondent