Herriott Services Pty Ltd v Creevey - [2009] QSC 419

SUPREME COURT OF QUEENSLAND

CITATION:

Herriott Services Pty Ltd v Creevey [2009] QSC 419

PARTIES:

HERRIOTT SERVICES PTY LTD
ACN 086 980 216
(applicant)
v
JANET LOUISE CREEVEY
(first respondent)
STATE OF QUEENSLAND
(second respondent)

FILE NO:

BS8650 of 2009

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

21 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 October 2009

JUDGE:

Mullins J

ORDER:

The registrar of titles is directed to rectify the title in the freehold land register to the estate in fee simple of Lot 18 on RP902676 County of Fitzroy Parish of Nanango Title Reference 50152678 by restoring the applicant as the registered owner

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – INDEFEASIBILITY OF TITLE – EXCEPTIONS TO INDEFEASIBILITY – FRAUD OR FORGERY – where applicant seeks rectification of the title to the property in the freehold land register – where applicant seeks to be restored as the registered owner – where respondent relied on a deed of compromise alleged to have been signed by the sole director and shareholder of the applicant to sign transfer of the property on behalf of the applicant – where signatures of the sole director and shareholder of the applicant on the deed of compromise were forged – where the transfer of the property from the applicant to the respondent was registered as a result of the fraud of the respondent

Evidence Act 1977, s 59
Land Title Act 1994, s 187

Duong v Vo [2009] WASC 210, considered
Gawne v Gawne [1979] 2 NSWLR 449, considered
Jeans v Cleary [2006] NSWSC 647, considered
R v Doney (2001) 126 A Crim R 271, considered

COUNSEL:

RB Dickson for the applicant
The first respondent appeared in person

SOLICITORS:

Dillons Solicitors for the applicant

Ms Paula Clark claims to be the sole director of the applicant. The applicant owned the property at Knowles Street, Nanango (the property) from which it conducted its business. On 15 May 2009 Ms Creevey (the respondent) attended at the property and claimed to be the owner and handed an unsigned copy of a deed which named Ms Clark and the respondent as the parties (the May deed) to Ms Clark. It was on that day that Ms Clark then became aware that a transfer of the property from the applicant to the respondent had been registered on 8 May 2009. Ms Clark then caused her solicitors to lodge caveat 712410813 on behalf of the applicant in respect of the property on 15 May 2009. This proceeding was commenced on 11 August 2009 to prove the interest claimed under the caveat. The applicant seeks rectification of the title to the property in the freehold land register by restoring the applicant as the registered owner.

When the proceeding was commenced, it was based on the allegation made by Ms Clark that the transfer of the property was procured by the fraud of the respondent on the basis she had caused Ms Clark’s signature to be forged on the transfer…

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 Herriott Services Pty Ltd v Creevey

Details

AGLC: Herriott Services Pty Ltd v Creevey [2009] QSC 419
Case: [2009] QSC 419
Decision Date: 21 December 2009

CaseChat Overview and Summary

Herriott Services Pty Ltd, the applicant, initiated proceedings against Creevey, the respondent, in the Supreme Court of Queensland. The applicant sought rectification of the title to a property in the freehold land register, aiming to be restored as the registered owner. The respondent had relied on a deed of compromise, allegedly signed by the sole director and shareholder of the applicant, to execute a transfer of the property. It was claimed that the signatures on the deed were forged, and the transfer was registered as a result of the respondent's fraud.

The central legal issues in this case revolved around the principles of Torrens title and the exceptions to indefeasibility, specifically focusing on fraud or forgery. The applicant argued that the forged signatures on the deed of compromise constituted fraud, rendering the transfer invalid. The applicant contended that the fraud perpetrated by the respondent should be recognized as an exception to the indefeasibility of title. The respondent, on the other hand, maintained that the transfer should be upheld, despite the fraudulent signatures.

The court examined the evidence and found that the signatures on the deed of compromise were indeed forged. It was established that the respondent was aware of the fraud at the time of the transfer. The court held that fraud constitutes a significant exception to the indefeasibility of title under the Torrens system. Consequently, the court found that the transfer was invalid due to the respondent's fraud. The registrar of titles was directed to rectify the title in the freehold land register by restoring the applicant as the registered owner of the property.

Orders

Orders of the court

The registrar of titles is directed to rectify the title in the freehold land register to the estate in fee simple of Lot 18 on RP902676 County of Fitzroy Parish of Nanango Title Reference 50152678 by restoring the applicant as the registered owner

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

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CITATION:	Herriott Services Pty Ltd v Creevey [2009] QSC 419
PARTIES:	HERRIOTT SERVICES PTY LTD ACN 086 980 216 (applicant) v JANET LOUISE CREEVEY (first respondent) STATE OF QUEENSLAND (second respondent)
FILE NO:	BS8650 of 2009
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	21 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	5 October 2009
JUDGE:	Mullins J
ORDER:	The registrar of titles is directed to rectify the title in the freehold land register to the estate in fee simple of Lot 18 on RP902676 County of Fitzroy Parish of Nanango Title Reference 50152678 by restoring the applicant as the registered owner
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE – INDEFEASIBILITY OF TITLE – EXCEPTIONS TO INDEFEASIBILITY – FRAUD OR FORGERY – where applicant seeks rectification of the title to the property in the freehold land register – where applicant seeks to be restored as the registered owner – where respondent relied on a deed of compromise alleged to have been signed by the sole director and shareholder of the applicant to sign transfer of the property on behalf of the applicant – where signatures of the sole director and shareholder of the applicant on the deed of compromise were forged – where the transfer of the property from the applicant to the respondent was registered as a result of the fraud of the respondent Evidence Act 1977, s 59 Land Title Act 1994, s 187 Duong v Vo [2009] WASC 210, considered Gawne v Gawne [1979] 2 NSWLR 449, considered Jeans v Cleary [2006] NSWSC 647, considered R v Doney (2001) 126 A Crim R 271, considered
COUNSEL:	RB Dickson for the applicant The first respondent appeared in person
SOLICITORS:	Dillons Solicitors for the applicant