Issa v Owens (No 2)

Case [2023] QSC 96


SUPREME COURT OF QUEENSLAND

CITATION:

Issa v Owens & Ors (No 2) [2023] QSC 96

PARTIES:

HIND ISSA (ALSO KNOWN AS HEND KARBOTLI)

(Plaintiff)

v

BARRY OWENS

(First Defendant)

BARRY WAYNE OWENS

(Second Defendant)

CORINE MAJORY JOYCE OWENS

(Third Defendant)

GUSTIN GROUP PTY LTD (ACN 006 152 361)

(Fourth Defendant)

JOHN RAMSAY

(Fifth Defendant)

OXYGEN FUNDING SOLUTIONS PTY LTD
(ACN 107 769 415)

(Sixth Defendant)

CATALYST PROVISIONAL LENDING PTY LTD
(ACN 139 887 264)

(Seventh Defendant)

JESS ERNEST MORECROFT

(Eighth Defendant)

JACQUELINE RITA HAINES

(Ninth Defendant)

REGISTRAR OF TITLES

(Tenth Defendant)

STATE OF QUEENSLAND

(Eleventh Defendant)

JAMES KARBOTLI (ALSO KNOWN AS JIHAD KARBOTLI)

(First Third Party)

STEPHEN RICHARD PICKEN

(Twelfth Defendant/Second Third Party)

FILE NO/S:

BS 10465 of 2018

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2023

Written submissions received on 10, 17 and 20 March 2023

JUDGE:

Crowley J

ORDER:

1.    The First to Seventh Defendants, the Twelfth Defendant and the First Third Party pay two-thirds of the Plaintiff’s costs of and incidental to the Plaintiff’s claim on the standard basis.

2.    The Eighth and Ninth Defendants pay one-third of the Plaintiff’s costs of and incidental to the Plaintiff’s claim on the standard basis.

3.    The First to Seventh Defendants, the Twelfth Defendant and the First Third Party pay two-thirds of the Eleventh Defendant’s costs of and incidental to the Plaintiff’s claim on the standard basis.

4.    The Eighth and Ninth Defendants pay one-third of the Eleventh Defendant’s costs of and incidental to the Plaintiff’s claim on the standard basis.

5.    The First to Sixth Defendants pay the Eighth and Ninth Defendants’ costs of and incidental to the Eighth and Ninth Defendants’ third-party claim against them on the standard basis.

6.    The Eleventh Defendant pay the Eighth and Ninth Defendants’ costs of and incidental to the Eighth and Ninth Defendants’ third-party claim against it on the standard basis.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE – ASSURANCE FUNDS, COMPENSATION AND REMEDIES FOR DEPRIVATION – DEPRIVATION OF INTEREST IN LAND – where a mortgage over a property was procured by fraud – where the mortgagees purported to exercise a power of sale over the property – where the mortgagees had no right to transfer the property – where the mortgagees were liable to the purchasers for damages for breach of the purchase contract – where the purchasers were also entitled to compensation from the State pursuant to s 188 of the Land Title Act 1994 (Qld) – where, upon payment of compensation to the purchasers, the State will be subrogated to the rights of the purchasers against the mortgagees – whether the compensation order against the State should be contingent on the purchasers first seeking recovery of the judgment amount for damages for breach of contract from the mortgagees

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – COSTS IN PROCEEDING WHERE MULTIPLE PARTIES – GENERALLY – whether the purchasers should pay…

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Details
AGLC
Issa v Owens (No 2) [2023] QSC 96
Case
[2023] QSC 96
Decision Date

CaseChat Overview and Summary

The case of Issa v Owens (No 2) involved a dispute concerning the validity of a mortgage over property and the consequences of fraudulent procurement of the mortgage. The matter was heard in the Supreme Court of Queensland. The central issue before the Court was whether the compensation order against the State for the deprivation of the plaintiff's interest in the land should be contingent on the plaintiff first seeking recovery of the judgment amount for damages for breach of contract from the mortgagees. The Court was also required to decide the allocation of costs among the multiple parties involved, including whether the purchasers should pay the plaintiff’s costs and whether the Registrar of Titles should pay the plaintiff’s costs.

The Court found that the mortgage was procured by fraud and that the mortgagees had no right to transfer the property. Consequently, the mortgagees were liable to the purchasers for damages for breach of the purchase contract. The Court determined that the purchasers were also entitled to compensation from the State under section 188 of the Land Title Act 1994 (Qld). However, upon payment of compensation to the purchasers, the State would be subrogated to the rights of the purchasers against the mortgagees. The Court ruled that the compensation order against the State should not be contingent on the purchasers first seeking recovery of the judgment amount for damages for breach of contract from the mortgagees.

The Court also addressed the issue of costs, allocating them among the parties based on their respective liabilities. The First to Seventh Defendants, the Twelfth Defendant, and the First Third Party were ordered to pay two-thirds of the plaintiff’s costs, while the Eighth and Ninth Defendants were ordered to pay one-third of the plaintiff’s costs. Similar divisions were made for the costs relating to the Eleventh Defendant’s claim and the third-party claim brought by the Eighth and Ninth Defendants. Additionally, the Court determined that a Sanderson order should be made in favour of the State.

In summary, the Court ruled that the compensation order against the State should not be contingent on the purchasers first seeking recovery from the mortgagees. The Court also provided detailed directions for the allocation of costs among the parties involved, including making a Sanderson order in favour of the State.

Orders

Orders of the court

1. The First to Seventh Defendants, the Twelfth Defendant and the First Third Party pay two-thirds of the Plaintiff’s costs of and incidental to the Plaintiff’s claim on the standard basis.

2. The Eighth and Ninth Defendants pay one-third of the Plaintiff’s costs of and incidental to the Plaintiff’s claim on the standard basis.

3. The First to Seventh Defendants, the Twelfth Defendant and the First Third Party pay two-thirds of the Eleventh Defendant’s costs of and incidental to the Plaintiff’s claim on the standard basis.

4. The Eighth and Ninth Defendants pay one-third of the Eleventh Defendant’s costs of and incidental to the Plaintiff’s claim on the standard basis.

5. The First to Sixth Defendants pay the Eighth and Ninth Defendants’ costs of and incidental to the Eighth and Ninth Defendants’ third-party claim against them on the standard basis.

6. The Eleventh Defendant pay the Eighth and Ninth Defendants’ costs of and incidental to the Eighth and Ninth Defendants’ third-party claim against it on the standard basis.

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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