Green v Scottney-Turbill - [2022] QSC 65

SUPREME COURT OF QUEENSLAND

CITATION:

Green v Scottney-Turbill & Anor [2022] QSC 065

PARTIES:

RON GREEN

(plaintiff/respondent)

v

ANDREW SCOTTNEY-TURBILL

(first defendant/applicant)

AND

ROBIN SCOTTNEY-TURBILL

(second defendant/applicant)

FILE NO:

No 968 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application filed 2 March 2022

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2022

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1 Caveat number 721318055 lodged over lot 2 on registered plan 180661 title reference 16263230 be removed

2 The plaintiff pay the defendants’ costs of the application filed on 2 March 2022, including the application to remove the caveat and the application to strike out the statement of claim.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – WHO MAY LODGE AND WHAT INTEREST SUFFICIENT – OTHER CASES – where the plaintiff claimed to be entitled to an easement over a lot to support an entitlement to the use of a boiler tank and piping on that lot – where the plaintiff did not own the dominant tenement – whether the plaintiff had an arguable interest in the lot over which the caveat was lodged – whether the caveat should be removed

Civil Proceedings Act 2011 (Qld), s 15

Corporations Act 2001 (Cth), s 601AD(2)

Land Title Act 1994 (Qld) s 127, s 185

Property Law Act 1974 (Qld), s 59, s 180, s 199, s 200

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 703 ch 17

Colgate-Palmolive Company v Cussons (1993) 46 FCR 225, cited

Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118, cited

Cousin’s Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520, cited

Hobson v Gorringe (1897) 1 Ch 182, cited

Legal Services Commissioner v Bone [2014] QCA 179, cited

LPD Holdings Aust Pty Ltd v Phillips, Hickey v Toigo [2013] QCA 305, cited

Polden v Bastard (1865) Lr 1 QB 156, cited

Rance v Elvin (1985) 49 P & CR 9, cited

Re Burman’s Caveat [1994] 1 Qd R 123, cited

Standard Portland Cement Co Pty Ltd v Good (1982) 57 ALJR 151, cited

COUNSEL:

S Grant for the applicants/defendants

Respondent/plaintiff self-represented

SOLICITORS:

Aylward Game Solicitors for the applicants/defendants

Respondent/plaintiff self-represented

Jackson J

The defendants to the proceeding apply (by interlocutory application filed in the claim) for an order removing the caveat[1] lodged by the plaintiff over lot 2 on registered plan 180661 title reference 16263230, located at 14 Harper Creek Road Conondale Qld (“lot 2”). Attached to this judgment is a diagram of the relevant area, which was exhibited to the first defendant’s affidavit.
[1]Land Title Act 1994 (Qld) s 127.
Lot 2 is located on the southern side of Harper Creek Road that runs approximately east-west. From lot 2, Harper Creek Road runs west to a T-junction with Aherns Road. The defendants are registered as the owners of lot 2.
Adjacent to…

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: [2022] QSC 65
Decision Date: 29 April 2022

CaseChat Overview and Summary

The matter of Green v Scottney-Turbill involved a dispute over the right to lodge a caveat against dealings with a specific lot of land. The plaintiff, Green, sought to establish an easement over lot 2 on registered plan 180661 title reference 16263230, claiming it would support the use of a boiler tank and piping on that lot. However, Green did not own the dominant tenement, leading to a question of whether Green had a sufficient interest to lodge a caveat against the defendants, Scottney-Turbill. The case was heard in a relevant court of equity jurisdiction.

The court had to determine whether the plaintiff had an arguable interest in the lot over which the caveat was lodged, thereby justifying the caveat's existence. The legal issue hinged on whether Green's claimed easement constituted an arguable interest sufficient to warrant the lodging of a caveat. This required an examination of the nature of easements, the requirements for lodging a caveat, and the extent to which a non-owner could assert such rights.

The court found that Green did not have an arguable interest in the lot, as the claimed easement did not meet the criteria necessary to support a caveat. The court concluded that the easement claimed was not sufficiently defined or supported by any evidence of prior usage or agreement that would substantiate Green's claim. Consequently, the caveat was deemed unjustified and was ordered to be removed. The court also ruled that Green must pay the defendants' costs associated with the application to remove the caveat and the application to strike out the statement of claim.

Orders

Orders of the court

The order of the court is that:

1 Caveat number 721318055 lodged over lot 2 on registered plan 180661 title reference 16263230 be removed

2 The plaintiff pay the defendants’ costs of the application filed on 2 March 2022, including the application to remove the caveat and the application to strike out the statement of claim.

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:	Green v Scottney-Turbill & Anor [2022] QSC 065
PARTIES:	RON GREEN (plaintiff/respondent) v ANDREW SCOTTNEY-TURBILL (first defendant/applicant) AND ROBIN SCOTTNEY-TURBILL (second defendant/applicant)
FILE NO:	No 968 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application filed 2 March 2022
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 April 2022
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2022
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1 Caveat number 721318055 lodged over lot 2 on registered plan 180661 title reference 16263230 be removed 2 The plaintiff pay the defendants’ costs of the application filed on 2 March 2022, including the application to remove the caveat and the application to strike out the statement of claim.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – WHO MAY LODGE AND WHAT INTEREST SUFFICIENT – OTHER CASES – where the plaintiff claimed to be entitled to an easement over a lot to support an entitlement to the use of a boiler tank and piping on that lot – where the plaintiff did not own the dominant tenement – whether the plaintiff had an arguable interest in the lot over which the caveat was lodged – whether the caveat should be removed Civil Proceedings Act 2011 (Qld), s 15 Corporations Act 2001 (Cth), s 601AD(2) Land Title Act 1994 (Qld) s 127, s 185 Property Law Act 1974 (Qld), s 59, s 180, s 199, s 200 Uniform Civil Procedure Rules 1999 (Qld), r 681, r 703 ch 17 Colgate-Palmolive Company v Cussons (1993) 46 FCR 225, cited Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118, cited Cousin’s Securities Pty Ltd v CEC Group Ltd [2007] 2 Qd R 520, cited Hobson v Gorringe (1897) 1 Ch 182, cited Legal Services Commissioner v Bone [2014] QCA 179, cited LPD Holdings Aust Pty Ltd v Phillips, Hickey v Toigo [2013] QCA 305, cited Polden v Bastard (1865) Lr 1 QB 156, cited Rance v Elvin (1985) 49 P & CR 9, cited Re Burman’s Caveat [1994] 1 Qd R 123, cited Standard Portland Cement Co Pty Ltd v Good (1982) 57 ALJR 151, cited
COUNSEL:	S Grant for the applicants/defendants Respondent/plaintiff self-represented
SOLICITORS:	Aylward Game Solicitors for the applicants/defendants Respondent/plaintiff self-represented