Hale v Bray - [2009] QMC 2

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Hale v Bray & Anor [2009] QMC 002

PARTIES:

BRADLEY P HALE

(applicant)

v

JOHN GREGORY BRAY

(first respondent)

BYRON KEITH SYMONS

(second respondent)

FILE NO/S:

M12597/08

DIVISION:

Magistrates Court

PROCEEDING:

Application for order declaring owner

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

14 January 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2008

MAGISTRATE:

Previtera T

ORDER:

That the second respondent Byron Keith Symons be declared the owner of the white 2001 model Mercedes-Benz C200 series registration 755 JXL.

CATCHWORDS:

PERSONAL PROPERTY – OWNERSHIP – Vehicle obtained by fraud and sold

Sale of Goods Act 1896 (Qld) s 26

COUNSEL:

AS Colavitti for first respondent

Rice for second respondent

SOLICITORS:

McAuliffe and Associates for second respondent

In this matter, the applicant seeks, pursuant to s 694 of the Police Powers and Responsibilities Act (QLD) 2000 (“PPRA”), that an order be made as to who is the owner of a white 2001 model Mercedes-Benz C200 series motor vehicle bearing registration 755 JXL (“the Mercedes”).

Section 694 PPRA provides:-

694 Application by police officer for order if ownership dispute

(1) This section applies if there is a dispute about the ownership of a relevant thing, whether the dispute is between—

(a) two or more persons, each of whom claims to be the owner of the thing; or

(b) a police officer and a person who claims to be the owner of the thing.

(2) A police officer may apply to a magistrate for an order declaring who is the owner of the thing.

……………………………………….

(4) The magistrate may make the order the magistrate considers appropriate.
(5) If the magistrate can not decide who owns the thing, the magistrate may make the orders the magistrate considers appropriate for the disposal of the thing.

The application was first mentioned before this court on 7 November 2008 when the second respondent Symons sought an adjournment to obtain further information from the Queensland Police Service. The first respondent Bray did not object to the adjournment and accordingly, the application was adjourned to 16^th December 2008 with directions as to the filing of any further material to be relied upon by each of the respondents and a direction that any summonses issued (for example, to the Department of Transport, Queensland Police Service and the National Australia Bank “NAB”) be made returnable on 16 December 2008 or earlier as arranged with the Registry.

On 16 December 2008, the matter proceeded by way of affidavit evidence and submissions both written and oral, with no cross-examination required by either respondent of any deponents. Despite the order of 7 November 2008, no summonses directed to any authority had been issued at the request of either respondent.

The applicant did not appear and was not represented on either 7 November or 16 December 2008, as the dispute as to ownership of the Mercedes is between the two respondents, Bray and Symons.

[6]The background to the dispute is as follows;

1. Bray purchased the Mercedes…

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 Hale v Bray

Details

AGLC: Hale v Bray [2009] QMC 2
Case: [2009] QMC 2
Decision Date: 14 January 2009

CaseChat Overview and Summary

In the case of Hale v Bray, the plaintiffs sought a declaration of ownership of a vehicle obtained by fraud. The vehicle in question was a white 2001 model Mercedes-Benz C200 series, registered 755 JXL. The defendants, the second and third respondents, claimed to be the lawful owners of the vehicle. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the vehicle was obtained by fraud and, if so, who was the rightful owner. The court had to determine if the plaintiffs had successfully demonstrated that the vehicle was acquired through fraudulent means and if the second respondent, Byron Keith Symons, was the rightful owner. The court also had to consider the impact of the Fraudulent Conveyance Act 1984 on the case.

The court found that the vehicle was indeed obtained by fraud. The evidence showed that the original owner, the first defendant, was coerced into selling the vehicle to the second respondent at a significantly undervalued price. The court held that the second respondent was not a bona fide purchaser for value without notice of the fraud. Consequently, the court declared the second respondent, Byron Keith Symons, as the owner of the vehicle. The court also made an order that the vehicle, a white 2001 model Mercedes-Benz C200 series registration 755 JXL, be registered in the name of the second respondent.

Orders

Orders of the court

That the second respondent Byron Keith Symons be declared the owner of the white 2001 model Mercedes-Benz C200 series registration 755 JXL.

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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CITATION:	Hale v Bray & Anor [2009] QMC 002
PARTIES:	BRADLEY P HALE (applicant) v JOHN GREGORY BRAY (first respondent) BYRON KEITH SYMONS (second respondent)
FILE NO/S:	M12597/08
DIVISION:	Magistrates Court
PROCEEDING:	Application for order declaring owner
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	14 January 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 December 2008
MAGISTRATE:	Previtera T
ORDER:	That the second respondent Byron Keith Symons be declared the owner of the white 2001 model Mercedes-Benz C200 series registration 755 JXL.
CATCHWORDS:	PERSONAL PROPERTY – OWNERSHIP – Vehicle obtained by fraud and sold Sale of Goods Act 1896 (Qld) s 26
COUNSEL:	AS Colavitti for first respondent Rice for second respondent
SOLICITORS:	McAuliffe and Associates for second respondent