Gilbert v Goodwin

[2003] QSC 380

SUPREME COURT OF QUEENSLAND

CITATION:

Gilbert & Ors v Goodwin & Ors  [2003] QSC 380

PARTIES:

ERROL RODERICK GILBERT, TREVOR GEORGE GILBERT, NEROLI DORELLE GILBERT, HIRAM ROSS GILBERT, VERNEE JOSEPH GILBERT and EDWARD JOHN GILBERT
(plaintiffs)
v
JOHN PATRICK ANTHONY GOODWIN and CATHERINE ALICE GOODWIN as Personal Representatives of the Estate of JOHN TAYLOR GOODWIN
(defendants)

FILE NO:

S5632 of 2000

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

7 November 2003

DELIVERED AT:

Brisbane

HEARING DATES:

8 August 2003

JUDGE:

Wilson J

ORDERS:

1.    That the application be dismissed;

2.    That the defendants pay the plaintiffs’ costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where application by defendants for order that part of statement of claim be struck out and further or alternatively that amendments to statement of claim be disallowed and further or alternatively that plaintiffs amend pleading to plead all material facts on which plaintiffs bear onus of proof  - where plaintiffs seek declaration of their entitlement to be registered as owners of estate in fee simple – where plaintiffs rely on s 27(11) Local Government Act 1936 – where s 27(11) Local Government Act 1936 enabled Local Authority to sell land for arrears of rates – whether plaintiffs must plead all arrears of rates and compliance with statutory procedures

Acts Interpretation Act 1954 (Qld), s 14
Local Government Act 1936 (Qld), s 27(11), s 27(12), s 52(30)
Uniform Civil Procedure Rules 1999 (Qld), r 171, r 149, r 151, r 153

Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd (1998) ATPR 41-633, cited
International Gems Pty Ltd v Livingstone Shire Council [1981] Qd R 465, considered
In re Church’s Caveat [1905] St R Qd 201, cited
Bank of New South Wales v Laing [1954] AC 135, cited
Zuk v Miller [1957] SASR 25, cited
Hillebrand & Anor v Penrith City Council & Ors (2001) 51 NSWLR 424, referred to

COUNSEL:

DR Cooper SC and MP Amerena for the applicant/defendants
JA Griffin QC and P McQuade for the respondent/plaintiffs

SOLICITORS:

Tony Goodwin & Company for the applicant/defendants
Short Punch & Greatorix for the respondent/plaintiffs

1. WILSON J: In this proceeding the plaintiffs seek a declaration that they are entitled to be registered as owners of an estate in fee simple in certain parcels of land in the Gold Coast hinterland.  Broadly, they claim that relief on two alternative bases: as purchasers from the Albert Shire Council which sold the land to them more than thirty years ago when the then owners had failed to pay rates, and by reason of adverse possession.

1. At all material times until 3 April 2000 John Taylor Goodwin and Frances Goodwin as joint tenants were registered as owners of the land.  Frances Goodwin died on 21 July 1974 and John Taylor Goodwin died on 15 April 1999.  On 3 April 2000…