JG v GF

[2004] QSC 221

[2004] QSC 221

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No BS5100 of 2004

JG	Applicant
and
GF	Respondent

BRISBANE

..DATE 12/07/2004

ORDER

HER HONOUR: The applicant, JG, has brought an application in this Court pursuant to section 38 of the Property Law Act 1974, for a trustee to be appointed statutory trustee for sale of a house property situated at Mountain Creek in the State of Queensland ("the Mountain Creek house").

The respondent is GF.  The facts that appear for the purposes of this application are that the applicant and the respondent lived together from July to November 2000.  On 2 May 2000 they contracted to purchase the Mountain Creek house for $220,000.  They jointly borrowed $220,000 from the National Australia Bank and the property was purchased in joint names.  The borrowings were to be secured by mortgages over the Mountain Creek house and the respondent's house at Maroochydore (“the Maroochydore house”).

On 10 June 2000, the respondent accepted an offer of $177,000 for the Maroochydore house and that contract settled on 10 July 2000; 10 days after the settlement of the Mountain Creek house.  The respondent contributed $115,246.76 towards the purchase of the Mountain Creek house.  The applicant did not at that stage contribute any money towards the purchase of the Mountain Creek house other than her liability under the mortgage.

However, during the period when she lived at the house, she paid for some improvements.  The applicant submits that she contributed $26,729.70.  The respondent admits that she contributed $18,970.05 and the remaining $7,759.65 is disputed.

From July 2000 to the present the respondent has paid all mortgage payments, totalling $56,840 and no mortgage payments have been made by the applicant.  In addition, from July 2000 to the present, the respondent has paid all Council rates, totalling $8,041.27.  The applicant has made no contribution towards rates.  In addition, various repairs, improvements and maintenance have been carried out by the respondent.

It is submitted by the respondent and not contested by the applicant that at its highest she contributed 12.80 per cent of the cost of the property.  The property has increased in value through the passage of time. 

The respondent has applied in the first instance for the matter to be remitted to the District Court. This Court has power under section 77 of the District Courts Act to remit the matter to the District Court.

The unimproved value of the Mountain Creek house as at 20 January 2004 is $82,000.  That value is well within the monetary limit of the District Court.  It appears that the District Court in Maroochydore is a convenient Court for the matter to be heard.

Section 68 of the District Courts Act sets out the civil jurisdiction of the District Court. It provides specifically for a number of matters concerning disputes about land. It also provides specifically in subsection (1)(b)(vi) that the District Court has jurisdiction for the sale or partition or division of property pursuant to section 38 of the Property Law Act which deals with real property, or section 41 which deals with chattels, "where the property does not exceed in amount or value the monetary limit".

The monetary limit is defined in subsection (2) of section 68 to mean $250,000. Subsection (3) deals with the means of determining whether or not the District Court has jurisdiction. It deals specifically with some subsections but not with others. With regard to clauses (iii), (xi) and (xii) of subsection (1)(b), it says that "the value of land shall be the most recent valuation, current at the time of instituting the proceedings, made by the chief executive (of the department within which the Valuation of Land Act 1944 is administered) under the Valuation of Land Act 1944, or, if there is no such valuation in respect of land, the current market value at that time of the land exclusive of improvements thereto".

It does not deal with how the Court should determine the value of the monetary limit found under section 68(1)(b)(vi). There does not appear to be any reason why this section has been omitted from subsection (3)(b), except that clause (vi) does not deal only with the question of real property or land, but also with chattels.

In the case of land, it appears to me to be convenient for the Court to look at the same criterion that it would usually look at in determining whether or not land falls within the jurisdiction of the District Court, which is to look at, where it is available, the most recent valuation.

In this case that means that the matter falls squarely within the jurisdiction of the District Court.  In addition, it should be said that it appears that the District Court in Maroochydore is a convenient Court for hearing a dispute in this matter.  That is the location of the property and the amount of money at stake, even if the property has increased in value, that is the amount that the plaintiff could recover, is still, in my view, under the amount of the monetary limit of the District Court of $250,000.

In those circumstances it appears to me that the appropriate Court for this matter to be heard is the District Court at Maroochydore and I remit the matter to the District Court at Maroochydore.  I should also make the orders sought in paragraph 5, that the respondent file and serve his claim and statement of claim within seven days and that the applicant's application be adjourned, pending the determination of the respondent's claim.
...

HER HONOUR:  I will order that the applicant's application be adjourned, pending the determination of the respondent's claim.

The parties have made submissions as to the appropriate costs order.  I had been informed by the parties that there is no other decision of the Court as to this question of which Court has the appropriate jurisdiction in such a matter.  As it is a novel point, it is understandable why the matter was commenced in the Supreme Court.  The respondent's solicitors informed the applicant's solicitors that they would be making this application and the respondent has been substantially successful.

In my view the appropriate costs order in these circumstances is that the respondent's costs be the respondent's costs in the cause and that will be the costs order that I make.

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