Jedhar P/L v Grosse - [2004] QCA 167

SUPREME COURT OF QUEENSLAND

CITATION:

Jedhar P/L v Grosse [2004] QCA 167

PARTIES:

JEDHAR PTY LTD ACN 055 538 906
(applicant/respondent)
v
ALISON ROBYN GROSSE

(respondent/appellant)

FILE NO/S:

Appeal No 9576 of 2003
SC No 7361 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING
COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2004

JUDGES:

Davies JA, Fryberg and Philippides JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – LAPSE, REMOVAL AND WITHDRAWAL – REMOVAL -where application to remove caveat successful at first instance – where appellant claimed equitable interest in and resulting constructive trust over house – where appellant alleged that property was alienated with intent to defraud creditors – appellant alleged an entitlement under s 228 of the Property Law Act 1974 as an unpaid judgment creditor prejudiced by the alienations to avoid the alienations – whether judge erred in finding no serious question to be tried under s 228 – whether serious case raised of alienation of property – whether serious case raised of intention to defraud creditors

Property Law Act 1974 (Qld), s 228

COUNSEL:

P J Dunning for the appellant
P M Robinson for the respondent

SOLICITORS:

KPS Lawyers (Maroochydore) for the appellant
David Alexander (Maroochydore) for the respondent

[1] DAVIES JA: I have had the advantage of reading the reasons for judgment of Philippides J. I agree with her that this appeal must be dismissed. In what follows I gratefully adopt her Honour's statement of the relevant facts, the effect of the judgment in the primary court and the questions in issue in this appeal. As her Honour indicated, the principal questions in issue were whether the appellant showed on the evidence that there were serious questions to be tried as to whether there had been an alienation of property by Mr Purvis to Jedhar and, if so whether that had been with intent to defraud creditors, both within the meaning of s 228(1) of the Property Law Act 1974.

[2] Even if it be assumed that Mr Purvis alienated property to Jedhar, within the meaning of that section, the appellant was unable to show, even arguably, that the nature of that property was income payable or received rather than a contractual right to receive future income. She was unable to show, even arguably, that such contractual right was not effectively assigned.[1] And she was unable to show, even arguably, that such contractual right was assigned by Mr Purvis to Jedhar after a time when the appellant's claim against Mr Purvis was likely to mature into a debt in the foreseeable future.
[1]For example, because there was no consideration, passing to the assignor, for such assignment. See HolroydvMarshall (1862) 10 HLC 191 at 211; Tailby v Official Receiver (1888) 13 App Cas 523

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 Jedhar P/L v Grosse

Details

AGLC: Jedhar P/L v Grosse [2004] QCA 167
Case: [2004] QCA 167
Decision Date: 21 May 2004

CaseChat Overview and Summary

The appeal heard in Jedhar P/L v Grosse involved the respondents, who were the registered proprietors of a property, and the appellant, who held a caveat against dealings with the property. The dispute centred on the removal of the caveat and the validity of the appellant's claim of an equitable interest in the property. The case was heard in the Queensland Court of Appeal. The appellant, who had previously lodged a caveat, sought to have it removed by the respondents but was unsuccessful in first instance. The appellant argued that she had an equitable interest in the property and sought to establish a resulting constructive trust over the house. Furthermore, the appellant claimed that the property was alienated with the intent to defraud creditors and sought to avoid the alienations under section 228 of the Property Law Act 1974 as an unpaid judgment creditor prejudiced by the alienations.

The court was required to determine whether the judge erred in finding no serious question to be tried under section 228 of the Property Law Act 1974. The court had to assess whether a serious case was raised of the alienation of property and the intention to defraud creditors. The court examined the evidence presented by the appellant and considered the principles of equity, particularly those relating to resulting constructive trusts and the avoidance of alienations under section 228 of the Property Law Act 1974. The court concluded that the appellant's claims did not present a serious question to be tried and dismissed the appeal. The reasoning of the court was based on the lack of evidence supporting the appellant's claims of an equitable interest in the property and the absence of any intention to defraud creditors.

In its judgment, the court found that the appellant's claims were not substantiated by the evidence presented. The court held that there was no serious question to be tried under section 228 of the Property Law Act 1974, as the appellant had failed to demonstrate that the property was alienated with the intent to defraud creditors. The court dismissed the appeal and ordered the appellant to pay costs. The decision underscored the importance of providing sufficient evidence to support claims of equitable interests and the avoidance of alienations under the relevant statutory provisions. The appeal was dismissed with costs awarded to the respondents.

Orders

Orders of the court

Appeal dismissed with costs

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:	Jedhar P/L v Grosse [2004] QCA 167
PARTIES:	JEDHAR PTY LTD ACN 055 538 906 (applicant/respondent) v ALISON ROBYN GROSSE (respondent/appellant)
FILE NO/S:	Appeal No 9576 of 2003 SC No 7361 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2004
JUDGES:	Davies JA, Fryberg and Philippides JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – CAVEATS AGAINST DEALINGS – LAPSE, REMOVAL AND WITHDRAWAL – REMOVAL -where application to remove caveat successful at first instance – where appellant claimed equitable interest in and resulting constructive trust over house – where appellant alleged that property was alienated with intent to defraud creditors – appellant alleged an entitlement under s 228 of the Property Law Act 1974 as an unpaid judgment creditor prejudiced by the alienations to avoid the alienations – whether judge erred in finding no serious question to be tried under s 228 – whether serious case raised of alienation of property – whether serious case raised of intention to defraud creditors Property Law Act 1974 (Qld), s 228
COUNSEL:	P J Dunning for the appellant P M Robinson for the respondent
SOLICITORS:	KPS Lawyers (Maroochydore) for the appellant David Alexander (Maroochydore) for the respondent