Goodwin v Goodwin - [2006] QCA 503

SUPREME COURT OF QUEENSLAND

CITATION:

Goodwin v Goodwin [2006] QCA 503

PARTIES:

ELMA AGNES GOODWIN
(applicant/respondent)
v
SHANE CHRISTOPHER GOODWIN
(respondent/appellant)

FILE NO/S:

Appeal No 7645 of 2006
SC No 4675 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Orders delivered ex tempore on 28 November 2006
Reasons delivered on 1 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2006

JUDGES:

Williams and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

CATCHWORDS:

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – QUEENSLAND – where trustees appointed under s 38 of the Property Law Act 1974 (Qld) for the sale of land which the appellant and his wife co-owned with the respondent as tenants in common – whether there was any evidence before the court which enlivened discretion not to appoint trustees - whether there was a binding contract for the respondent to sell her share of the land to the appellant – where the appellant appeals against the refusal of a trial judge to stay an order made on 19 January 2006, rather than appealing the order of 19 January 2006 itself

Property Law Act 1974 (Qld), s 38, s 228

Goodwin v Goodwin & Anor [2004] QCA 50; Appeal No 9057 of 2003, 27 February 2004, cited
Goodwin & Anor v Goodwin & Ors [2005] QCA 117; Appeal Nos 672 & 1502 of 2005, 19 April 2005, cited

COUNSEL:

No appearance for the appellant
L A Stephens for the respondent

SOLICITORS:

No appearance for the appellant
Ryan Lawyers for the respondent

WILLIAMS JA: I agree with Jerrard JA.

JERRARD JA: In this appeal Shane Goodwin, by a notice of appeal filed 8 September 2006, appealed orders of Mackenzie J made 11 August 2006 refusing an application to stay an order of Muir J made 19 January 2006. Mr Goodwin, who is a self represented litigant, did not appear when the matter was called on, although it was clear from the documents on the court file that he was well aware of the date for hearing. He had in fact faxed documents to the Registry on the day of the appeal, to do with his request for an adjournment. Also, on the day listed for hearing of the appeal, Mr Goodwin filed an application for an extension of time within which to appeal the order of Muir J, which had been completely executed and carried into effect before 11 August 2006, and which Mr Goodwin had not previously appealed.

Mackenzie J did not give specific reasons for his order of 11 August 2006 refusing the application to stay, but did explain to Mr Goodwin during the hearing that there could be no basis for an order for a stay, as the order of Muir J had been carried into effect. In Mackenzie J’s pithy phrase, “I can’t…

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 Goodwin

Details

AGLC: Goodwin v Goodwin [2006] QCA 503
Case: [2006] QCA 503
Decision Date: 1 December 2006

CaseChat Overview and Summary

The appeal in Goodwin v Goodwin involved the appellant, who, along with his wife, co-owned land with the respondent as tenants in common. The primary dispute centred on the statutory trust for sale or partition of the property under the Property Law Act 1974 (Qld). The appellant contested the refusal of a trial judge to stay an order made on 19 January 2006, which directed the appointment of trustees for the sale of the property. Trustees had been appointed under section 38 of the Act to sell the property, and the appellant argued that the trial judge should have considered whether there was any evidence justifying a deviation from this statutory direction.

The legal issues before the court involved whether there was any evidence that warranted the exercise of discretion by the trial judge to not appoint trustees, and whether there existed a binding contract for the respondent to sell her share of the property to the appellant. The appellant contended that the court should have stayed the order for the appointment of trustees and instead considered the existence of a binding contract. The respondent, on the other hand, maintained that there was no such contract and that the statutory process for the sale of co-owned property was correctly followed.

The court considered the statutory framework and the arguments presented by both parties. It determined that there was no evidence presented to the trial judge that would have justified a deviation from the statutory requirement to appoint trustees. The court found that the appellant's appeal did not address the merits of the 19 January 2006 order itself but rather the refusal to stay that order. Consequently, the appeal was dismissed as it was held that the trial judge was correct in proceeding with the statutory sale of the property. The court concluded that the appeal was not properly before it as it did not challenge the substantive order but rather the judge's refusal to stay that order.

Orders