Jimenez v Bugg - [2011] QDC 142

DISTRICT COURT OF QUEENSLAND

CITATION:

Jimenez & Anor v Bugg [2011] QDC 142

PARTIES:

Carlos JIMENEZ & Kim Michelle JIMENEZ
(Plaintiffs)

AND

Shannon Kyle BUGG
(Defendant)

FILE NO/S:

1701 of 2009

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

29 July 2011

DELIVERED AT:

Hervey Bay

HEARING DATE:

31 January and 1 February 2011

JUDGE:

Devereaux SC DJC

ORDER:

1. Judgment for the defendant.

2. I will receive written submissions from the parties as to costs and other further orders by 5 August 2011.

CATCHWORDS:

REAL PROPERTY – TORRENS TITLE - CAVEATS AGAINST DEALINGS – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE - LAND TITLE ACT 1994 – onus of proof

REAL PROPERTY – TORRENS TITLE - CAVEATS AGAINST DEALINGS – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE - LAND TITLE ACT 1994 – meaning of “without reasonable cause”

REAL PROPERTY – TORRENS TITLE - CAVEATS AGAINST DEALINGS – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE - LAND TITLE ACT 1994 – whether any loss or damage was “as a result” of lodging of caveat

Acts Interpretation Act 1954 s. 36

Land Title Act 1994 ss 122, 130

Property Law Act 1974 ss 11, 59

Real Property Act 1861 s. 103

Babsari Pty Ltd v Wong [1999] QSC 326

Barry v Heider (1914) 19 CLR 197

Bedford Properties P/L v Surgo P/L [1981] 1 NSWLR 106

Beca Developments v Idameneo (No 92) (1990) 21 NSWLR 459

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Commonwealth Bank v Baranyay (1993) 1 VR 589

Farvet Pty Ltd v Frost [1997] 2 Qd R 39

Freedom v AHR Constructions Pty Ltd [1987] 1 Qd R 59

Gordon v MacGregor (1909) 8 CLR 316

Hoyts Proprietary Ltd v Spencer (1919) 27 CLR 133

Johnston v Parchert & Anor [2004] QDC 179

Legione v Hately (1983) 152 CLR 406

Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406

Pym v Campbell (1856) 6 El & Bl 370

SRA NSW v Health Outdoor Pty Ltd (1986) 7 NSWLR 191

Technology Licensing Ltd v Climit Pty Ltd [2002] 1 Qd R 566

COUNSEL:

Mr L. D. Bowden for the Plaintiffs

Mr J. Fenton for the Defendant

SOLICITORS:

Shand Taylor for the Plaintiffs

A W Bale & Son for the Defendant

The plaintiffs’ claim is for compensation under s. 130 of the Land Title Act 1994. It provides:

130 Compensation for improper caveat
(1) A person who lodges or continues a caveat without reasonable cause must compensate anyone else who suffers loss or damage as a result.
……….

Mr Jiminez is a long haul truck driver. He and his wife (the plaintiffs) bought a house at Lever Court, Ningi, in 1996. In February 2004, they bought some land at Beerwah. They mortgaged both properties to the National Australia Bank.

Mr Jiminez and his wife found themselves in financial difficulty. They left the home at Ningi and moved to his parents’ home at Woollongong in New South…

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 Jimenez v Bugg

Details

AGLC: Jimenez v Bugg [2011] QDC 142
Case: [2011] QDC 142
Decision Date: 29 July 2011

CaseChat Overview and Summary

Jimenez sued Bugg for compensation for the lodging of a caveat against a dealing with land, claiming it was done without reasonable cause under the Land Title Act 1994. The dispute arose from a property transaction where Bugg lodged a caveat to protect his interest, which was later removed, and Jimenez sought damages for the inconvenience and cost incurred. The court was required to determine the meaning of "without reasonable cause" under the Act, the onus of proof, and whether any loss or damage was "as a result" of the caveat.

The court first examined the statutory framework, particularly section 89F of the Land Title Act 1994, which allows for compensation when a caveat is lodged without reasonable cause. It held that the onus of proof lay with the plaintiff to show the caveat was lodged without reasonable cause. The court then considered the meaning of "without reasonable cause," finding it to encompass not only a lack of factual basis but also a lack of legal basis. The court found that Bugg had a reasonable cause to lodge the caveat as he had a legitimate interest in the property and acted within the bounds of the law. The court also concluded that any loss or damage suffered by Jimenez was not a result of the caveat but rather due to his own actions and decisions in the transaction.

The court found in favour of Bugg, ruling that the caveat was lodged with reasonable cause. It determined that Jimenez failed to meet the onus of proving the lack of reasonable cause. The judgment resulted in a finding against Jimenez and ordered him to bear his own costs. The court requested written submissions from both parties regarding any further orders, including potential costs, by 5 August 2011.

Orders

Orders of the court

1. Judgment for the defendant.

2. I will receive written submissions from the parties as to costs and other further orders by 5 August 2011.

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:	Jimenez & Anor v Bugg [2011] QDC 142
PARTIES:	Carlos JIMENEZ & Kim Michelle JIMENEZ (Plaintiffs) AND Shannon Kyle BUGG (Defendant)
FILE NO/S:	1701 of 2009
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court
DELIVERED ON:	29 July 2011
DELIVERED AT:	Hervey Bay
HEARING DATE:	31 January and 1 February 2011
JUDGE:	Devereaux SC DJC
ORDER:	1. Judgment for the defendant. 2. I will receive written submissions from the parties as to costs and other further orders by 5 August 2011.
CATCHWORDS:	REAL PROPERTY – TORRENS TITLE - CAVEATS AGAINST DEALINGS – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE - LAND TITLE ACT 1994 – onus of proof REAL PROPERTY – TORRENS TITLE - CAVEATS AGAINST DEALINGS – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE - LAND TITLE ACT 1994 – meaning of “without reasonable cause” REAL PROPERTY – TORRENS TITLE - CAVEATS AGAINST DEALINGS – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE - LAND TITLE ACT 1994 – whether any loss or damage was “as a result” of lodging of caveat Acts Interpretation Act 1954 s. 36 Land Title Act 1994 ss 122, 130 Property Law Act 1974 ss 11, 59 Real Property Act 1861 s. 103 Babsari Pty Ltd v Wong [1999] QSC 326 Barry v Heider (1914) 19 CLR 197 Bedford Properties P/L v Surgo P/L [1981] 1 NSWLR 106 Beca Developments v Idameneo (No 92) (1990) 21 NSWLR 459 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Commonwealth Bank v Baranyay (1993) 1 VR 589 Farvet Pty Ltd v Frost [1997] 2 Qd R 39 Freedom v AHR Constructions Pty Ltd [1987] 1 Qd R 59 Gordon v MacGregor (1909) 8 CLR 316 Hoyts Proprietary Ltd v Spencer (1919) 27 CLR 133 Johnston v Parchert & Anor [2004] QDC 179 Legione v Hately (1983) 152 CLR 406 Nemeth v Bayswater Road Pty Ltd [1988] 2 Qd R 406 Pym v Campbell (1856) 6 El & Bl 370 SRA NSW v Health Outdoor Pty Ltd (1986) 7 NSWLR 191 Technology Licensing Ltd v Climit Pty Ltd [2002] 1 Qd R 566
COUNSEL:	Mr L. D. Bowden for the Plaintiffs Mr J. Fenton for the Defendant
SOLICITORS:	Shand Taylor for the Plaintiffs A W Bale & Son for the Defendant