Hines v Hines
[1999] QCA 149
•7/05/1999
IN THE COURT OF APPEAL 99.149 SUPREME COURT OF QUEENSLAND Appeal No. 6607 of 1998
Brisbane
[Hines v Hines]
BETWEEN:
MARK VINCENT HINES
(Respondent) Appellant
AND:
GREGORY RONALD HINES
(Applicant) Respondent McMurdo P
McPherson JA
Atkinson J
Judgment delivered 7 May 1999
Separate reasons for judgment of each member of the Court, each concurring as to the orders
made.APPEAL ALLOWED TO THE EXTENT OF AMENDING THE ORDER OF 23 JUNE 1998 SO THAT PARAGRAPH 1 OF THE ORDER PROVIDES THAT AN INJUNCTION ISSUE:
“... RESTRAINING MARK VINCENT BY HIMSELF, HIS SERVANTS OR AGENTS FROM OCCUPYING, RESIDING OR OTHERWISE BEING IN OR AT CERTAIN PREMISES NAMELY THE HOUSE AND LAND SITUATED AT THAGOONA/ROSEWOOD ROAD, THAGOONA MORE PARTICULARLY DESCRIBED AS LOT 2 ON REGISTERED PLAN 813524, COUNTY OF CHURCHILL, PARISH OF WALLOON EXCEPT WITH THE LEAVE OR LICENCE OF THE APPLICANT, UNTIL THE SAID PREMISES ARE SOLD OR UNTIL FURTHER ORDER.”
APPEAL OTHERWISE DISMISSED WITH COSTS.
CATCHWORDS:
INJUNCTION - final - whether applicant had standing to make application for injunction - whether the District Court had jurisdiction to hear application - whether injunction should have been final in the circumstances.
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Dabbs v Seaman (1925) 36 CLR 538
Dowse v Wynyard Holdings Ltd [1962] NSWR 252
Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR
411
Melling v Leak (1855) 16 CB 652; 139 ER 915
Newington v Windeyer (1985) 3 NSWLR 555
Radaich v Smith (1959) 101 CLR 209District Court Act 1967, ss.68(1)(b)(xii), 69 Counsel: Mr B E Atkins (Solicitor) for the appellant
Mr A M West for the respondentSolicitors: Shine Roche McGowan as town agents for B E Atkins for the appellant
Carne & Herd as town agents for Dale & Fallu for the respondentHearing Date: 19 April 1999 IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No.6607 of 1998
Brisbane
Before McMurdo P
McPherson JA
Atkinson J[Hines v Hines] BETWEEN: MARK VINCENT HINES
(Appellant) Respondent
AND:
GREGORY RONALD HINES
(Respondent) Applicant
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 7 May 1999
Violet Annie Hines died on 22 March 1998. The disposition of her property upon her death
is by Will she executed on 13 March 1998. Her Will makes provision for six of her children and
three of her grandchildren. A dispute has arisen between two of her sons, Mark Vincent Hines and
Gregory Ronald Hines.
Under their mother’s Will, two of her sons, John and Charles and her solicitor Paul Fallu,
were appointed trustees. All of her estate was devised and bequeathed to her trustees upon various
trusts which included a trust to permit her son, Gregory to have:
“the sole use and occupation of my house property situated at Thagoona and described as Lot 2 on Registered Plan 813524, County of Churchill, Parish of Walloon until such time as the property is sold subject to his paying all rates and insurance premiums levied in respect of the property and maintaining the improvements thereon in good order and repair having regard to their condition as at the date of my death.”
Other distributions of chattels and livestock were made to her son Gregory. She further
directed that the house property be sold by her trustees subject to an agreement made between
herself and her son, Mark, on 23 February 1995. The agreement dated 23 February 1995 is in the
form of a deed. The deed recites that the mother is the registered proprietor of the land in question,
that she has entered into a contract of sale which appears to be conditional upon the Moreton Shire
Council giving approval to subdivision and that a dispute exists concerning the possible entitlements
of the son, Mark, under the Will of his late father, Elias Victor Hines, dated 20 April 1982. His
father died on 14 October 1982. In order to resolve all the issues in dispute about Gregory’s
entitlement under the Will the mother agreed to pay Mark one-half of the net proceeds of the sale
for which there was currently a contract or any alternative sale. Mark agreed by deed that he had
no proprietary interest in the land and would not enter it or any dwelling upon it without the
permission or authority of the mother.
Because the agreement is in the form of a deed Mark Hines is estopped from disputing facts
which lie at the foundation of the transaction.[1] In this case Mark Hines is estopped from disputing
the facts referred to in the recital of the deed.
[1] Dabbs v Seaman (1925) 36 CLR 538 at 549-550 per Isaacs J.
After his mother’s death, Gregory Hines continued to reside in the house and land in accordance with the terms of his mother’s Will. Gregory Hines’ occupation of the property can be characterised as a tenancy at will. As Cresswell J held in giving the judgment of the Court in
Melling v Leak[2]:
“... [A] cestui que trust who is let into possession of the trust estate by the trustee,
becomes his tenant at will ... .”
The situation remains the same whether or not the cestui que trust is in possession with the consent
or even the mere acquiescence of the trustee.
[2] (1855) 16 CB 652 at 669; 139 ER 915 at 921.
As a tenant at will Gregory Hines had a right to exclusive possession of the property and
the tenancy passes an interest in the land.[3] The creation of a tenancy at will means that Gregory
Hines is a tenant and once he has entered the premises he has a right to sue in trespass.[4] Such a
tenant is entitled to exclude strangers from the demised premises. In such a case actual possession
is necessary to support an action in trespass.[5] Just as a right to exclusive possession gives rise to
a tenancy so a tenancy gives rise to a right of exclusive possession. A tenancy at will is a right at
common law and therefore creates a legal interest in the property.
[3] Radaich v Smith (1959) 101 CLR 209 at 218.
[4] Radaich v Smith (supra) at 222 per Windeyer J.
[5] Cole, “The Law and Practice in Ejectment” (1857) p.287 and p.459.
The learned trial judge found the following facts which were not disputed on appeal. The
applicant is complying with the conditions of the sole use and occupancy of the property and
according to two of the executors, John Andrew Hines and Charles William Hines, he is paying the
relevant rates and insurance premiums in respect of the property and maintaining the property in
accordance with its condition as at the date of the death of Mrs Hines.
Gregory Hines was, on 4 June 1998, residing in the property as his home. On that day at
approximately 5:00pm Mark Hines arrived at the house and let himself into it. At approximately
5:30pm on that day Gregory Hines arrived home and found his brother, Mark in the house. He
afterwards told Mark to leave the property and Mark refused. Mark continued to reside in the
property and refused requests to leave, and as a consequence an application seeking an injunction
was filed in the District Court at Ipswich on 9 June 1998.
Mark Vincent Hines appealed from the decision of the learned trial judge granting a final
injunction:
“... restraining Mark Vincent Hines by himself, his servants or agents, from occupying, residing or otherwise being in or at certain premises namely the house and land situated at Thagoona/Rosewood Road, Thagoona more particularly described as Lot 2 on Registered Plan 813524, County of Churchill, Parish of Walloon except with the leave or licence of the applicant.”
The grounds of appeal in the notice of appeal were as follows.
“2(a) The judge gave a final order on an application, when he had informed the parties at the hearing, that he was hearing an interim application for an interim injunction. 2(b) Alternatively only an interim injunction should have been ordered.”
At the hearing of the matter leave was granted to amend the notice of appeal subject to the
filing of the amended notice of appeal. The two grounds of appeal that the appellant was given
leave to add were that the judge erred in deciding that the applicant had standing to appear or to
make the application and that the judge erred in deciding that the District Court had jurisdiction to
hear the application. Towards the end of his submissions the solicitor for the appellant applied to
amend the notice of appeal to add a further ground that the learned trial judge erred in granting a
final injunction when there were serious issues to be tried. That application was refused. Then the solicitor for the applicant attempted to apply to amend his notice of appeal to add the following
ground of appeal:
“When there is a serious issue to be tried, that is the entitlement or otherwise of the trustees to act as the personal representatives for the deceased with regard to this land or the land in question.”
He then sought to add “of the applicant claiming under” after the words “entitlement or
otherwise”. That application was not proceeded with after an indication that it was likely to be
refused.
It is therefore appropriate now to deal with each of the three grounds of appeal.
1. The District Court did not have jurisdiction to hear the application.
The District Courts’ jurisdiction to hear and determine this matter is derived from s.68 of the
District Court Act 1967 in particular subs.68(1)(b)(xii) which gives the District Court jurisdiction
to hear and determine actions and matters:
“to restrain, whether by injunction or otherwise, any actual, threatened or apprehended trespass or nuisance to land, where the value of the land does not exceed the monetary limit, or, in lieu of or in addition to such an injunction, damages not exceeding the monetary limit.”
The appellant’s solicitor said that his primary submission was that the learned trial judge was
in error in relying as he did on the affidavit of the respondent’s solicitor to the effect that two of the
trustees advised him that they would estimate the value of the house and land in question to be in
the vicinity of $160,000 to $180,000 and that the house was currently being marketed for sale with
various local real estate agents. The appellant’s solicitor submitted in this Court that the learned trial
judge should instead have accepted as evidence of the value of the property the value referred to
in para.3 of the deed that is:
“In the event of the contract of sale referred to in recital B not proceeding then the said property shall be placed for sale by private treaty or auction with a reserve price of not less than $240,000 or such other price as mutually agreed upon by the parties.”
Since the monetary limit under subs.68(1)(b)(xii) is $250,000 either value is within the
monetary limit of the District Court particularly as in this case there is no alternative or additional
claim for damages. As there was no evidence of a valuation of the land made under the Valuation
of Land Act 1944 his Honour was entitled to accept that the current market value of the land
exclusive of improvements was no higher than $250,000. Further, subs.68(4) provides that where
any question arises as to the amount or value for the purpose of jurisdiction under this part the
decision of the District Court or judge thereof shall be conclusive as to that matter.
2. The applicant for the injunction had no standing.
As to standing, the appellant argued that the respondent did not have any or any sufficient
standing to apply for the injunction. It was conceded in submissions that all that was required in
order to found a legitimate action in trespass is actual possession. The respondent had possession
but not according to the appellant any proprietary interest.
The appellant submitted that an applicant for an injunction must rely upon and demonstrate
a proprietary interest and that the respondent was merely a beneficiary in an unadministered estate
which gave him neither a legal nor an equitable interest in any property but merely a personal right
to ensure the executor administers the Will and the estate.[6]
[6] Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411.
However as can be seen from the discussion above, Gregory Hines was a tenant at will
which gave rise to a proprietary interest in the land which would be sufficient to give him standing
to apply for an injunction to restrain a trespass,[7] if it is indeed necessary,[8] to hold a proprietary
interest[9] to found an interest sufficient[10] to apply for an injunction. In Dowse v Wynyard Holdings
Ltd[11] Jacobs J states that:
“The right of the Equity Court to interfere by way of injunction does not depend upon the infringement of a proprietary right. It does not depend upon the existence of property. A common form of injunction is one which restrains an actual or threatened breach of contract; but in such a case no proprietary right, in the strict sense, is necessarily involved. In particular cases, the plaintiff may have to show an interference with his property before he can establish a right to an injunction. Thus, if a plaintiff seeks to restrain a public wrong by suit in his own name he must establish, generally speaking, some particular injury to his property, otherwise the suit can be maintained only by the Attorney-General.”
[7] By subs.25(8) of the Judicature Act 1873, it is provided that if an injunction is asked either before, or at, or after the hearing of any cause or matter to prevent any threatened or apprehended waste or trespass, such injunction may be granted, if the court shall think fit whether the person against whom such injunction is sought, is or is not in possession under any claim of title or otherwise, or, if out of possession, does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both, or by either of the parties, are legal or equitable. This has been incorporated into the Supreme Court Act 1995 s.246.
[8] Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605.
[9] See discussion in Meagher RP, Gummow WMC and Lehane JRF, “Equity: Doctrine and Remedies”, (3rd ed, 1992) paras.2147-2154, 2165-2166 and Spry ICF, “Equitable Remedies”, (5th ed, 1997) Ch.5; “Laws of Australia” 15.8 Injunctions Part A Div.1 [7].
[10] It may be that in some circumstances possession is sufficient to give rise to an interest: Newington v Windeyer (1985) 3 NSWLR 555 at 563.
[11] [1962] NSWR 252 at 266.
However subs.68(1)(b)(xii) removes any doubt as to the Court’s jurisdiction in this case.
As the District Court has the jurisdiction to restrain whether by injunction or otherwise a trespass
then the person against whom such a trespass is committed or threatened has the standing to move
the Court for such an injunction.
3. The learned trial judge should not have given a final injunction.
The only matter then to be decided is whether or not the judge erred by granting a final
injunction. It is apparent from the judgment that the application was one for a final injunction. Only
injunctive relief was sought in the proceedings. The respondent argued the merits of the application
for the injunction on the basis that a final injunction was sought. In the course of hearing, the learned
trial judge gave interlocutory relief when it was necessary to adjourn the matter. On the second
such adjournment he said that he intended to order that the injunction be maintained until he gave
his reasons. He was asked by counsel for the appellant if that injunction, that is the injunction which
was to be maintained until the reasons were given, was itself by way of an interlocutory injunction.
The learned trial judge agreed that it was. This does not amount to what was submitted in the
ground of appeal that “the judge gave a final order on an application, when he had informed the
parties at the hearing, that he was hearing an interim application for an interim injunction”. Clearly
he had not so informed the parties and there is no substance in this ground of appeal.
Further the District Court has the power to grant a final injunction after a summary hearing.
Section 69 of the District Court Act 1967 specifically provides:
“(1) Subject to this Act and to the rules of court, a District Court and any judge thereof has, for the purposes of exercising the jurisdiction conferred by this part, all the powers and authorises of the Supreme Court and any judge thereof, and may in any proceeding in like manner and to like extent -
(a) grant such relief or remedy;
...
as may and ought to be done in like cases by a judge of the Supreme Court.
(2) Without affecting the generality of subsection (1), a District Court and any judge thereof shall, in any proceedings in which jurisdiction is conferred under this part, have power to grant relief -
...
(b) by way of injunction, whether interim, interlocutory or final, in the proceedings;
...
(3) Subject to this Act and the rules of court, the practice and procedure of the
District Court or a judge thereof -(a) in exercising the jurisdiction conferred by this part; and
(b) in enforcing any judgment or order made in the exercise of that jurisdiction;
shall so far as practicable be the same as the practice and procedure of the
Supreme Court or a judge thereof in like matters.
... .”
If it be necessary, s.69 incorporates the powers given to the Supreme Court under O.57
r.2 of the Rules of the Supreme Court to give final relief in a matter where the only relief sought
is an injunction as in this case, upon an application to the Court by motion on affidavit without the
necessity for pleadings and a trial.
There is however one matter which arose during the course of the hearing.
It was properly conceded by counsel for the respondent that the injunction is too wide in
its terms and that it should have only lasted until the sale of the land which is the duration of the
respondent’s interest or until further order.
Accordingly the appeal is allowed only to the extent of amending the order so that para.1
should provide that an injunction issue:
“... restraining Mark Vincent by himself, his servants or agents from occupying, residing or otherwise being in or at certain premises namely the house and land situated at Thagoona/Rosewood Road, Thagoona more particularly described as Lot 2 on Registered Plan 813524, County of Churchill, Parish of Walloon except with the leave or licence of the applicant, until the said premises are sold or until further order.”
The appeal is otherwise dismissed with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 6607 of 1998
Brisbane
Before McMurdo P
McPherson JA
Atkinson J[Hines v Hines] BETWEEN: MARK VINCENT HINES
(Respondent) Appellant
AND:
GREGORY RONALD HINES
(Applicant) Respondent
REASONS FOR JUDGMENT - McMURDO P
Judgment delivered 7 May 1999
I have had the benefit of reading the reasons for judgment of Atkinson J and agree with the
orders proposed by her, with her analysis of the facts and generally with her reasons.
The civil jurisdiction of the District Court is conferred by Part 5 of the District Court Act
1967. Section 68(1)(b)(xii) Part 5 of the District Court Act 1967 provides:
"68(1) A District Court shall have jurisdiction to hear and determine -
...
(b) actions and matters -
...
(xii)
to restrain, whether by injunction or otherwise, any actual, threatened or apprehended trespass or nuisance to land, where the value of that land does not exceed the monetary limit, ... ."
Section 69 of the District Court Act 1967 gives a District Court Judge exercising civil jurisdiction
"all the powers and authorities of the Supreme Court and any judge thereof".
If it be necessary to establish a proprietary right in order for the respondent to obtain an
injunction, the respondent's right under his mother's will to have sole use of the property until the
property is sold subject to his payment of rates and insurance premiums and maintenance of the
improvements constitutes a sufficient interest in the property to allow the respondent to apply for
and obtain an injunction under s 68(1)(b)(xii) of the District Court Act 1967.
As Atkinson J has pointed out, his Honour was entitled to accept the evidence, as he did,
that the value of the land was within the jurisdictional limit of $250,000.
His Honour did not inform the parties at the hearing that the matter was an interim
application for an interim injunction only. The jurisdiction conferred under s. 68(1)(b)(xii) of the
District Court Act 1967 appears on a plain reading of the section to include the power to grant
a final injunction. Section 69(2) of the District Court Act 1967 puts this beyond doubt. On the
facts of this case, however, the injunction was too wide in its terms, as the respondent's interest in
the property ceases upon its sale. The appeal should therefore be allowed to the limited extent
suggested by Atkinson J.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 6607 of 1998
Brisbane
Before McMurdo P
McPherson JA
Atkinson J[Hines v Hines]
BETWEEN
MARK VINCENT HINES
(Respondent) Appellant
AND
GREGORY RONALD HINES
(Applicant) Respondent
REASONS FOR JUDGMENT - McPHERSON JA
Judgment delivered 7 May 1999
I agree with and have nothing to add to the reasons of Atkinson J. The appeal should be
dismissed with costs.