Jedhar Pty Ltd v Grosse - [2003] QSC 330

SUPREME COURT OF QUEENSLAND

CITATION:

Jedhar Pty Ltd v Grosse [2003] QSC 330

PARTIES:

JEDHAR PTY LTD
(applicant)
v
ALISON R GROSSE
(respondent)

FILE NO/S:

SC No 7361 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 October 2003

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2003

JUDGE:

McMurdo J

ORDER:

1. The Caveat number 706784059 be removed.

2. The application filed by Ms Grosse on 10 September 2003 be dismissed.

CATCHWORDS:

TORRENS SYSTEM – CAVEAT – APPLICATION FOR REMOVAL OF - where application by Jedhar to remove caveat over house owned by it – where caveat lodged by respondent judgment creditor – where respondent claims applicant’s director alienated property in favour of applicant with an intent to defraud creditors – where respondent claims equitable interest in and resulting constructive trust over house – whether respondent has a caveatable interest in house – whether respondent’s interest, if any, prevails against registered interest of mortgagee – whether caveat should be removed

INJUNCTIONS – MAREVA - where application by respondent for an interlocutory injunction restraining Jedhar from dealing with house and mareva order in relation to other assets held by it – whether respondent has a serious case payments directed by Jedhar’s director to Jedhar were alienations of property and for the purpose of defeating creditors –whether respondent should be granted interlocutory relief

Property Law Act 1974 (Qld), s~~). S~~ 228

Bathurst City Council v BWC Properties Pty Ltd (1998-1999) 195 CLR 566, cited
Blenkinsopp v Blenkinsopp (1852) 1 DE G M & G495; 42 ER 644, cited
Giumelli v Giumelli (1998) 196 CLR 101, cited
Noakes v J Harvy Holmes & Son (1979) 37 FLR 5, consideredIn re Mouat; Kingston Cotton Mills Company v Mouat [1899] 1 Ch 831, considered
Re Trautwein (1944) 14 ABC 61, cited
Sanwa Home Pty Ltd v Sanwa Home Inc & Anor (unreported, No 92 of 1994, 14 September 1995), considered
~~Sunshine Coast Regional Group Apprentices Ltd v Purvis~~ ~~(unreported No 2558 of 2002, 21 February 2003)~~

COUNSEL:

F Dawson for the applicant
P Dunning for the respondent

SOLICITORS:

Greenhalgh Pickcard for the applicant
Klooger Phillips Scott for the respondent

McMURDO J: Jedhar Pty Ltd is the trustee of what is described as the Purvis Family Trust. It is a discretionary trust created by a trust deed executed in 1986. The potential beneficiaries identified within the trust deed are members of the family of Robert James Purvis and his wife Heather Joy Purvis. The original trustee was Mrs Nancy Guiver, the mother of Mrs Purvis. In about 1992, she was replaced as trustee by Jedhar, whose directors until 1995 were Mr and Mrs Purvis, and were from 1995 to 2000 Mr Purvis and a Mr Barry McDonald. Since February 2000, Mr Purvis has been the sole director of Jedhar.

In November 1986, Ms Guiver as the trustee purchased a house at 11 Essex Court, Buderim. It then became the Purvis family home. Jedhar is the registered owner as…

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 Pty Ltd v Grosse

Details

AGLC: Jedhar Pty Ltd v Grosse [2003] QSC 330
Case: [2003] QSC 330
Decision Date: 1 October 2003

CaseChat Overview and Summary

Jedhar Pty Ltd sought the removal of a caveat lodged by Ms Grosse, who claimed to be a judgment creditor, over a property owned by Jedhar. Ms Grosse lodged the caveat on the basis that Jedhar's director had alienated the property in favor of the company with the intent to defraud creditors. She further claimed an equitable interest in the property and a resulting constructive trust. The dispute reached the court where it was necessary to determine whether Ms Grosse had a caveatable interest in the property and whether such interest, if any, should prevail over the registered interest of the mortgagee. Additionally, the court had to decide whether the caveat should be removed and if Ms Grosse should be granted an interlocutory injunction to prevent Jedhar from dealing with the property and a Mareva order in relation to other assets held by Jedhar.

The court considered the nature of the Torrens system and the requirements for lodging a caveat. It examined whether Ms Grosse's claims were sufficient to establish a caveatable interest and whether her equitable interest and constructive trust claims could override the registered interest of the mortgagee. The court also assessed the merits of Ms Grosse's serious case in relation to the alleged alienation of property by Jedhar's director and the potential for defeating creditors. Finally, it deliberated on the appropriateness of granting interlocutory relief in the form of an injunction and a Mareva order.

Upon review, the court concluded that Ms Grosse did not have a caveatable interest in the property and that her claims did not justify the continuation of the caveat. The court determined that the registered interest of the mortgagee should prevail over any interest Ms Grosse claimed to have. Consequently, the court ordered the removal of the caveat and dismissed Ms Grosse's application for an interlocutory injunction and a Mareva order.

The final orders of the court were that the Caveat number 706784059 be removed and the application filed by Ms Grosse on 10 September 2003 be dismissed.

Orders

Orders of the court

1. The Caveat number 706784059 be removed.

2. The application filed by Ms Grosse on 10 September 2003 be dismissed.

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 Pty Ltd v Grosse [2003] QSC 330
PARTIES:	JEDHAR PTY LTD (applicant) v ALISON R GROSSE (respondent)
FILE NO/S:	SC No 7361 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	1 October 2003
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2003
JUDGE:	McMurdo J
ORDER:	1. The Caveat number 706784059 be removed. 2. The application filed by Ms Grosse on 10 September 2003 be dismissed.
CATCHWORDS:	TORRENS SYSTEM – CAVEAT – APPLICATION FOR REMOVAL OF - where application by Jedhar to remove caveat over house owned by it – where caveat lodged by respondent judgment creditor – where respondent claims applicant’s director alienated property in favour of applicant with an intent to defraud creditors – where respondent claims equitable interest in and resulting constructive trust over house – whether respondent has a caveatable interest in house – whether respondent’s interest, if any, prevails against registered interest of mortgagee – whether caveat should be removed INJUNCTIONS – MAREVA - where application by respondent for an interlocutory injunction restraining Jedhar from dealing with house and mareva order in relation to other assets held by it – whether respondent has a serious case payments directed by Jedhar’s director to Jedhar were alienations of property and for the purpose of defeating creditors –whether respondent should be granted interlocutory relief Property Law Act 1974 (Qld), s~~). S~~ 228 Bathurst City Council v BWC Properties Pty Ltd (1998-1999) 195 CLR 566, cited Blenkinsopp v Blenkinsopp (1852) 1 DE G M & G495; 42 ER 644, cited Giumelli v Giumelli (1998) 196 CLR 101, cited Noakes v J Harvy Holmes & Son (1979) 37 FLR 5, consideredIn re Mouat; Kingston Cotton Mills Company v Mouat [1899] 1 Ch 831, considered Re Trautwein (1944) 14 ABC 61, cited Sanwa Home Pty Ltd v Sanwa Home Inc & Anor (unreported, No 92 of 1994, 14 September 1995), considered ~~Sunshine Coast Regional Group Apprentices Ltd v Purvis~~ ~~(unreported No 2558 of 2002, 21 February 2003)~~
COUNSEL:	F Dawson for the applicant P Dunning for the respondent
SOLICITORS:	Greenhalgh Pickcard for the applicant Klooger Phillips Scott for the respondent