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Goodwin v Gilbert

Goodwin v Gilbert

Case [2000] QSC 309 11 September 2000

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SUPREME COURT OF QUEENSLAND

CITATION:	Goodwin & Anor v Gilbert & Ors [2000] QSC 309
PARTIES:	JOHN PATRICK ANTHONY GOODWIN and CATHERINE ALICE GOODWIN as Executors and Trustees of the Estate of JOHN TAYLOR GOODWIN (Deceased) (applicants) v ERROL RODERICK GILBERT, TREVOR GEORGE GILBERT, NEROLI DORELLE GILBERT, HIRAM ROSS GILBERT, VERNEE JOSEPH GILBERT and EDWARD JOHN GILBERT (respondents)
FILE NO/S:	SC No 5720 of 2000
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	11 September 2000
DELIVERED AT:	Brisbane
HEARING DATES:	1, 4 and 9 August 2000
JUDGE:	Atkinson J
ORDER:	(1)The application for the removal of caveats 704036283 and 704036264 is dismissed. (2) The respondents are given leave to amend caveats 704036283 and 704036264 within 14 days of the delivery of this judgment.
CATCHWORDS:	TORRENS SYSTEM – CAVEAT – APPLICATION FOR REMOVAL - application to remove caveats by personal representatives – testator failed to pay rates and Albert Shire Council sold the land to the respondents pursuant to s 27(11) Local Government Act 1936 – respondent failed to satisfy requisition issued when lodgment of certificates of sale rejected – personal representatives registered proprietors – respondent lodged caveats to protect interests – whether serious question to be tried – whether fairly arguable that respondent will fall within exceptions to indefeasibility or will establish adverse possession. Local Government Act 1936, s 27(11) Local Government Act 1993, s 1049 Local Title Act 1994, s 111, s 127, s 184, s 185(1)(a) and (d) Real Property Act 1861, s 99 Succession Act, s 45, s 52, s 66 Bahr v Nicolay[No 2] (1998) 164 CLR 604, considered Bogdanovic v Koteff (1988) 12 NSWLR 472, distinguished Breskvar v Wall (1971) 126 CLR 376, considered Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58, considered Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (1965) 113 CLR 265, considered Queensland Estates Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150, considered Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492, considered
COUNSEL:	M P Amerena for the applicants C J Carrigan for the respondents A M Daubney for the Registrar of Titles
SOLICITORS:	Tony Goodwin & Associates for the applicants Short Punch & Greatorix for the respondents Crown Solicitor for the Registrar of Titles

ATKINSON J: The respondents are Errol, Trevor, Neroli, Hiram, Vernee and Edward Gilbert (“the Gilbert family”). They are the six children of Hiram and Clara Gilbert who owned and farmed a 210 acre property at Springbrook known as “Grey Rock” (“the Gilbert farm”) since they married in 1939. Next to this property is land which was registered on 26 November 1958 to John and Frances Goodwin as joint tenants of an estate in fee simple (“the neighbouring land”).[1]
[1]The neighbouring land consisted of CT 655116, Vol 3163 Folio 106, County of Ward, Parish of Numinbah, Plan 51168, Subdivisions 7 to 10 of Portion 136; DG 137196 Vol 2940 Folio 206, County of Ward, Parish of…

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 Goodwin v Gilbert

Details

AGLC: Goodwin v Gilbert [2000] QSC 309
Case: [2000] QSC 309
Decision Date: 11 September 2000

CaseChat Overview and Summary

The applicants, as the personal representatives of a deceased estate, sought the removal of caveats lodged by the respondents to protect their interests. The deceased, who was the registered proprietor of certain land, failed to pay rates, resulting in the land being sold by the Albert Shire Council to the respondents. The applicants sought the removal of the caveats, arguing that the respondents had failed to satisfy a requisition and that the caveats were not based on a serious question to be tried or a fairly arguable claim. The respondents opposed the application, arguing that the caveats were validly lodged and that the applicants had not demonstrated that the respondents' claims were not seriously arguable.

The court was required to determine whether the respondents had a serious question to be tried or a fairly arguable claim, and whether the caveats should be removed. The court noted that the respondents' claims were based on exceptions to indefeasibility and adverse possession, and that these claims were not frivolous or vexatious. The court found that the respondents had demonstrated that there was a serious question to be tried and that their claims were fairly arguable. The court also noted that the respondents had not satisfied the requisition issued by the Registrar, but that this did not necessarily mean that their claims were not seriously arguable.

The application for the removal of the caveats was dismissed. The court found that the respondents had demonstrated that their claims were seriously arguable and that the caveats were validly lodged. The respondents were given leave to amend the caveats within 14 days of the delivery of the judgment. The court emphasised the importance of the caveat system in protecting the interests of parties with potentially valid claims to land, and the need for caution when seeking the removal of caveats.

Orders

Orders of the court

(1)The application for the removal of caveats 704036283 and 704036264 is dismissed.

(2) The respondents are given leave to amend caveats 704036283 and 704036264 within 14 days of the delivery of this judgment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Goodwin v Gilbert [2000] QSC 309

Most Recent Citation

Tara Shire Council v Garner [2002] QCA 232

Cases Citing This Decision

Recycling Developments Pty Ltd v Bespoke Recycling Industries Pty Ltd (No 2) [2024] QSC 67
Citation 1 (Para 1)

…Goodwin v Gilbert [2000] QSC 309, [15] and the cases cited therein.…
La Costa D Oro Pty Ltd v Karananos [2021] QSC 167
Citation 2 (Para 10)

…arguable title to justify the prevention of dealings with the land until they have been decided in appropriate proceedings.[3] [2] Goodwin v Gilbert [2000] QSC 309 at [15] citing Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58 at 68. [3] Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58 at 69.…
Patmore v Upton [2004] TASSC 77
Citation 3 (Para 1)

…In Queensland, Atkinson J recently observed in Goodwin v Gilbert [2000] QSC 309, at par30:…
Tara Shire Council v Garner [2002] QCA 232
Citation 4 (Para 1)

…at Act include an equity arising from the act of the registered proprietor: see Goodwin v Gilbert ,[1] Doneley v Morris [2] and McPhee v Zarb .[3] [1][2000] QSC 309 at [19] and [23]. [2][2001] QSC 090 at 19. [3][2002] QSC 4 at [40].…

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Cases Cited

Re Johnson [1999] QSC 197
Citation 1 (Para 1)

…SWLR 55 at 66-67; Bree v Scott (1904) 29 VLR 692; Shaw v Garbutt SC NSW No 2622 of 1995, 2 August 1996, Young J at 19. [57] Re Application by Johnson [1999] QSC 197; SC No 2670 of 1999, 19 August 1999, Wilson J at [21] – [22]; Shaw v Garbutt (supra) at 13.…
Kartinyeri v The Commonwealth [1998] HCA 22
Citation 2 (Para 1)

…rary to the applicants’ submission, no point arises that the Government has unlawfully fettered its legislative power: cf Kartinyeri v Commonwealth (1998) 72 ALJR 722 at 729.…
Kartinyeri v Commonwealth of Australia [1998] HCA 52
Citation 3 (Para 1)

…993 s 1208(1)(o). [30]Contrary to the applicants’ submission, no point arises that the Government has unlawfully fettered its legislative power: cf Kartinyeri v Commonwealth (1998) 72 ALJR 722 at 729.…
Grgic v ANZ Banking Group Ltd [1992] NSWCA 98
Citation 4 (Para 1)

…tice, they arguably take their interest subject to any equities created by the deceased in whose shoes they stand. [41] Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 at 222-223; Sistrom v Urh (1992) 40 FCR 550 at 558. [42] Gibbs v Messer [1891] AC 248; Breskvar v Wall (supra); Latec Investments v Hotel Terrigal (s…
Sistrom v Urh [1992] FCA 1054
Citation 5 (Para 1)

…t to any equities created by the deceased in whose shoes they stand. [41] Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 at 222-223; Sistrom v Urh (1992) 40 FCR 550 at 558. [42] Gibbs v Messer [1891] AC 248; Breskvar v Wall (supra); Latec Investments v Hotel Terrigal (supra) at 277. [43]cf Bogdanovic v Koteff (19…
Bahr v Nicolay (No 2) [1988] HCA 16
Citation 6

…t 1994, s 111, s 127, s 184, s 185(1)(a) and (d) Real Property Act 1861, s 99 Succession Act , s 45, s 52, s 66 Bahr v Nicolay [No 2] (1998) 164 CLR 604, considered Bogdanovic v Koteff (1988) 12 NSWLR 472, distinguished Breskvar v Wall (1971) 126 CLR 376, considered Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58,…
Castlemaine Tooheys Ltd v South Australia [1986] HCA 58
Citation 7

…[14] Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153-154 per Mason ACJ; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 203 (Full Court); Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301 at 303 (Full Court).…
Breskvar v Wall [1971] HCA 70
Citation 8 (Para 1)

…e are exceptions to this general rule set out both in the Land Title Act 1994 and elsewhere.[27] [23] Land Title Act 1994 s 180. [24] Breskvar v Wall (1971) 126 CLR 376 at 385-386. [25] Land Title Act 1994 s 184(1). [26] Frazer v Walker [1967] AC 569 at 580. [27]Examples of exceptions to indefeasibility found in othe…
J & H Just (Holdings) Pty Ltd v Bank of New South Wales [1971] HCA 57
Citation 9 (Para 1)

…e Jorss’ Caveat [1982] Qd R 458 at 464. [13] Lamshed v Lamshed (1963) 109 CLR 440 at 451; J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552; Re Hitchcock (1900) 17 WN (NSW) 62 at 63; Queensland Estate Pty Ltd v Co-ownership Land Development Pty Ltd (No 3) [1971] Qd R 260 at 264; Workin…
Latec Investments Ltd v Hotel Terrigal Pty Ltd (In liq) [1965] HCA 17
Citation 10 (Para 1)

…or under s 184(3)(b) of the Land Title Act 1994. [34] Breskvar v Wall (supra) at 387; Latec Investments Ltd v Hotel Terrigal Pty Ltd (in liquidation) (1965) 113 CLR 265 at 273-4.…
Lamshed v Lamshed [1963] HCA 60
Citation 11 (Para 1)

…ory injunction, a plaintiff must show: [12] Re Burman’s Caveat [1994] 1 Qd R 123; Re Jorss’ Caveat [1982] Qd R 458 at 464. [13] Lamshed v Lamshed (1963) 109 CLR 440 at 451; J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552; Re Hitchcock (1900) 17 WN (NSW) 62 at 63; Queensland Estate Pt…
Maxwell v Murphy [1957] HCA 7
Citation 12 (Para 1)

…49[30] which provides: [29] Acts Interpretation Act s 20(2); Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 at 652 per Dixon J; Maxwell v Murphy (1957) 96 CLR 261 at 267; Re John [2000] 2 Qd R 322 at 325; OS No 1822 of 1998 at [6]; Local Government Act 1993 s 1208(1)(o). [30]Contrary to the applicants’ submissi…
Kraljevich v Lake View and Star Ltd [1945] HCA 29
Citation 13 (Para 1)

…nued by the Local Government Act 1993 Part 7 Div 3 s 1049[30] which provides: [29] Acts Interpretation Act s 20(2); Kraljevich v Lake View & Star Ltd (1945) 70 CLR 647 at 652 per Dixon J; Maxwell v Murphy (1957) 96 CLR 261 at 267; Re John [2000] 2 Qd R 322 at 325; OS No 1822 of 1998 at [6]; Local Government Act 1993…
Barry v Heider [1914] HCA 79
Citation 14 (Para 1)

…ties having an equity in land.” [49](supra) at 384-385. [50] Bahr v Nicolay (supra) at 613, 628, 645-646. [51] Barry v Heider (1914) 19 CLR 197; Bahr v Nicolay [No 2] (supra) at 613, 638. [52]cf Sistrom v Urh (supra) at 557. [53]cf Bahr v Nicolay [No 2] (supra) at 638, 655. [54]Subject to s 157(2) of the Land Title…
Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44
Citation 15

…es Pty Ltd v Co-ownership Land Development Pty Ltd [1969] Qd R 150, considered Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492, considered…
Bogdanovic v Koteff [1988] HCATrans 240
Citation 16 (Para 1)

…550 at 558. [42] Gibbs v Messer [1891] AC 248; Breskvar v Wall (supra); Latec Investments v Hotel Terrigal (supra) at 277. [43]cf Bogdanovic v Koteff (1988) 12 NSWLR 472 at 480; Land Title Act 1994 s 112. [44]cf Rasmussen v Rasmussen [1995] 1 VR 613 at 634.…
[1891] AC 248 [1891] AC 248
Citation 17 (Para 1)

…hose shoes they stand. [41] Grgic v ANZ Banking Group Ltd (1994) 33 NSWLR 202 at 222-223; Sistrom v Urh (1992) 40 FCR 550 at 558. [42] Gibbs v Messer [1891] AC 248; Breskvar v Wall (supra); Latec Investments v Hotel Terrigal (supra) at 277. [43]cf Bogdanovic v Koteff (1988) 12 NSWLR 472 at 480; Land Title Act 19…
[1980] AC 331 [1980] AC 331
Citation 18

…[17] Re Jorss’ Caveat (supra) at 465 where reference was made to the Privy Council decision in Eng Mee Yong v Letchumanan [1980] AC 331 in which Lord Diplock compared a caveat to a statutory interlocutory injunction (in this case granted ex parte). See also Genrich v Maitland Holdings Pty Ltd [1982] Qd R 58 at 6…
[1967] AC 569 [1967] AC 569
Citation 19 (Para 1)

…here.[27] [23] Land Title Act 1994 s 180. [24] Breskvar v Wall (1971) 126 CLR 376 at 385-386. [25] Land Title Act 1994 s 184(1). [26] Frazer v Walker [1967] AC 569 at 580. [27]Examples of exceptions to indefeasibility found in other Acts are set out by Street J in Pratten v Warringah Shire Council (1969) 17 LGRA…
Pty Ltd v Bank of New South Wales 13 QBD 228
Citation 20 (Para 1)

…rman’s Caveat [1994] 1 Qd R 123; Re Jorss’ Caveat [1982] Qd R 458 at 464. [13] Lamshed v Lamshed (1963) 109 CLR 440 at 451; J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552; Re Hitchcock (1900) 17 WN (NSW) 62 at 63; Queensland Estate Pty Ltd v Co-ownership Land Development Pty Ltd (No 3) [1971] Qd R 260 at…

Legislation Cited

Land Title Act 1994 (Qld) 112, 157(4), 180, 184(1), 185(1)(a), 185...
8 mentions (from Para 1)
Local Government Act 1993 (TAS) 1049, 1208(1)(o)
3 mentions (from Para 1)
Local Government Act 1936 (Qld) 27(11)
2 mentions (from Para 1)
Real Property Act 1861 (SA) 99
2 mentions (from Para 1)
Limitation of Actions Act 1974 (Qld) 13
1 mention (from Para 1)
Succession Act 1981 (Qld) 66
1 mention (from Para 1)