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King v King

King v King

Case [2012] QCA 39 6 March 2012

Bankruptcy Administration

Property Available for Payment of Debts

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SUPREME COURT OF QUEENSLAND

CITATION:

King v King & Ors [2012] QCA 39

PARTIES:

JOHN FRANCIS KING
(applicant)
v
SARAH LOUISE KING
(first respondent)
LYDIA ELLEN KING
(second respondent)
BENEDICT JOHN KING
(third respondent)
SAMUEL DAVID KING
(fourth respondent)

FILE NO/S:

Appeal No 7123 of 2011
DC No 832 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 March 2012

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2012

JUDGES:

Chesterman and White JJA, and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The applicant has leave to appeal against the orders of the District Court made on 18 July 2011.

2.   The appeal be allowed and the orders made in the District Court on 18 July 2011 setting aside and/or striking out action BD 832/11 be set aside and instead order that the application to the District Court of 5 July be dismissed.

3.   The parties file a consent order in the District Court in the terms appearing in the agreed directions annexed to this order.

CATCHWORDS:

BANKRUPTCY – ADMINISTRATION OF PROPERTY – PROPERTY AVAILABLE FOR PAYMENT OF DEBTS – PROPERTY NOT DIVISIBLE AMONGST CREDITORS – OTHER MATTERS – where applicant and respondents parties to a residential tenancy agreement – where respondents commenced proceedings for an order that the agreement be terminated – where order made – where execution of order stayed pending proceedings commenced by applicant – where applicant sought declaration that respondents are bound by an agreement for life, an order for specific performance of the agreement and an injunction restraining the respondents from evicting the applicant – where applicant a bankrupt – where judge below ordered claim be struck out – where no reasons were given for the order but apparent from the transcript of argument that his Honour was convinced by the respondents’ counsel’s argument that, as a matter of law, the right the applicant sought to enforce in his action was not his but had vested in his trustees in bankruptcy – where the applicant was not legally represented in the District Court – where applicant appeals order striking out his action – where the applicant’s pleading is capable of claiming a bare licence to occupy the unit for the duration of the applicant’s life or for as long as he wishes to remain in occupation – where applicant submits he has an arguable claim – whether the applicant has a distinctly arguable claim that his right to occupy the unit was a personal right or privilege, not a right of property, and that he is the only person (subject to his former wife’s conjoint right) who may enjoy the right by occupying the premises – whether the application should have been struck out

Bankruptcy Act 1966 (Cth), s 5, s 58, s 116, s 116(2)
Bankruptcy Regulations 1996 (Cth), reg 6.03(2)
Settled Land Act 1958 (Vic)

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 King v King

Details

AGLC: King v King [2012] QCA 39
Case: [2012] QCA 39
Decision Date: 6 March 2012

CaseChat Overview and Summary

In the case of King v King, the applicant, who is a bankrupt, sought to enforce a purported life-time occupancy agreement with the respondents, who are his former partners. The applicants were parties to a residential tenancy agreement, and the respondents initiated proceedings to terminate the agreement, which was subsequently ordered. The execution of this order was stayed pending the applicant's proceedings. The applicant sought a declaration that the respondents are bound by an agreement for life, an order for specific performance, and an injunction to prevent eviction. The District Court judge struck out the applicant's claim, apparently convinced that the right sought by the applicant was not his but had vested in his trustees in bankruptcy. The applicant, unrepresented, appeals this decision.

The central legal issue before the court was whether the applicant had a distinctly arguable claim that his right to occupy the unit was a personal right or privilege, not a right of property, and whether he is the only person who may enjoy this right. The court had to determine if the applicant's claim was sufficiently arguable to warrant a hearing. The applicant argued that his pleading was capable of claiming a bare licence to occupy the unit for his lifetime or as long as he wished to remain in occupation. The court also considered whether the application should have been struck out.

The court found that the applicant's pleading was capable of claiming a bare licence to occupy the unit for the duration of his life or as long as he wishes to remain in occupation. The court held that this claim was distinctly arguable. The court held that the applicant had a distinctly arguable claim that his right to occupy the unit was a personal right or privilege, not a right of property, and that he is the only person (subject to his former wife’s conjoint right) who may enjoy the right by occupying the premises. Consequently, the court allowed the appeal and set aside the orders made in the District Court, directing instead that the applicant's application be dismissed. The parties were required to file a consent order in the District Court as per the agreed directions annexed to the court's order.

Orders

Orders of the court

1. The applicant has leave to appeal against the orders of the District Court made on 18 July 2011.

2. The appeal be allowed and the orders made in the District Court on 18 July 2011 setting aside and/or striking out action BD 832/11 be set aside and instead order that the application to the District Court of 5 July be dismissed.

3. The parties file a consent order in the District Court in the terms appearing in the agreed directions annexed to this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

King v King [2012] QCA 39

Most Recent Citation

v & L Zappia Pty Ltd v O'Connell [2022] VCC 1735

Cases citing this decision · 8 of 8 shown

Palmer v Madrone Pty Ltd
[2025] QCATA 56 Para 14

…King v King had its own associated litigation which proceeded in the Supreme Court in King v King & Ors [2012] QCA 39 [2012] 2 Qd R 448.…
v & L Zappia Pty Ltd v O'Connell
[2022] VCC 1735

…rom Errington and Wood is that the licensee’s right is personal, not proprietary, and cannot be transferred by the licensee.” [8] [2012] QCA 39 [9] [1952] 1 KB 290 [10] King v King at [36] per Chesterman JA 21For his part, counsel for Zappia Mr McKenzie, was not in a position to respond directly to the principle…
Enviro Waste Services Ltd v Remediation (NZ) Ltd
[2021] NZHC 3270

…p v Burns [1974] 1 WLR 1241 (CA) at 1253. 19 Crane v Morris [1965] 1 WLR 1104 (CA). 20 Errington v Errington [1952] 1 KB 290 (CA) at 296; King v King [2012] QCA 39. 21 See Hinde McMorland & Sim , above n 14 at [18.001]. 22 Ibid at [18.015].…
Jesberg v Jesberg
[2021] QCAT 314 Para 4

…f a negative stipulation that the contractual license will not be revoked and that any purported revocation will be restrained by injunction.[28] [27][2012] QCA 39. [28]Ibid [36], White JA and Margaret Wilson AJA agreeing.…
Henderson v Housing Choices South Australia Ltd
[2019] SASC 121 Para 8

…natory: [7] The respondent provided Ms Henderson with copies of the following: Kostov v Amelie Housing (NCAT Appeal) [2019] NSWSC 16; King v King [2012] QCA 39; Owsten Nominees No 2 Pty Ltd v Anderson (Tenancy) [2011] NSWCTTT 438. 1. By close of business on Tuesday, 19 March 2019 the solicitors for the Responden…
Pirina v Pirina Holdings Pty Limited
[2015] NSWSC 1899

…February 1998, unrep) Jenkins v Harbour View Courts Ltd [1966] NZLR 1 Jennings v Rice [2003] 1 P & CR 100; [2002] EWCA Civ 159 King v King [2012] QCA 39; [2012] 2 Qd R 448 Luo v Hui [2008] HKEC 996 Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 Sullivan v Sullivan [2006] NSWCA 312; (2006) 13 BPR 24,755 Walt…
Davidson v Cameron
[2015] QSC 294

…cited Kemp v Inland Revenue Commissioners [1905] 1 KB 581, cited King v King [2012] 2 Qd R 448; [2012] QCA 39, referred to Knox v Mackinnon (1888) 13 App Cas 753, cited Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Z…
Briggs v Jones
[2013] SADC 42 Para 2

…Giacci Holdings [2010] WASC 349; Darmanin v Cowan [2010] NSWSC 1118; Payne v Rowe [2012] NSWSC 685; W v D [2012] SASCFC 142; King v King [2012] QCA 39; Van Dyke v Sidhu [2012] NSWSC 118; McKay v McKay [2008] NSWSC 177; Pizimolas v Pizimolas (2010) SASC 209; Delaforce v Simpson-Cook [2010] NSWCA 84; Thorner v Ma…

View all 8 citing cases →

Cases cited in this decision · 8 of 8 shown

Australian Capital Television Pty Ltd v The Commonwealth
[1992] HCA 45

…1999 (Qld), r 16(3), r 171 Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45, cited Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235; [1929] HCA 39, cited Cummings v Claremont Petroleum NL (1996) 185 CLR 124; [1996] HCA 19, cited Errington v Errington [1952] 1…
Australian Capital Television Pty Ltd v Commonwealth
[1992] HCA 1

…and to the remark of Brennan J in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 166 that:…
Commissioner of Stamp Duties (NSW) v Yeend
[1929] HCA 39

…(1992) 177 CLR 106; [1992] HCA 45, cited Commissioner of Stamp Duties (NSW) v Yeend (1929) 43 CLR 235; [1929] HCA 39, cited Cummings v Claremont Petroleum NL (1996) 185 CLR 124; [1996] HCA 19, cited Errington v Errington [1952] 1 KB 290; [1951] EWCA Civ 2, cited Griffiths v Civil Aviation Authority (1996) 67 FC…
Jack v Smail
[1905] HCA 25

…ths v Civil Aviation Authority (1996) 67 FCR 301; [1996] FCA 1502, cited Jack v Smail (1905) 2 CLR 684; [1905] HCA 25, cited Re Hoppe deceased; Hoppe v McDavitt [1961] VR 381; [1961] VicRp 64, cited Rose v Buckett [1901] 2 KB 449, cited Wood v Browne [1984] 2 Qd R 593, cited COUNSEL: R Lilley SC, with J Carter,…
[1996] FCA 1502
[1996] FCA 1502

…ngton [1952] 1 KB 290; [1951] EWCA Civ 2, cited Griffiths v Civil Aviation Authority (1996) 67 FCR 301; [1996] FCA 1502, cited Jack v Smail (1905) 2 CLR 684; [1905] HCA 25, cited Re Hoppe deceased; Hoppe v McDavitt [1961] VR 381; [1961] VicRp 64, cited Rose v Buckett [1901] 2 KB 449, cited Wood v Browne [1984] 2 Q…
Cummings v Claremont Petroleum NL
[1996] HCA 19

…) v Yeend (1929) 43 CLR 235; [1929] HCA 39, cited Cummings v Claremont Petroleum NL (1996) 185 CLR 124; [1996] HCA 19, cited Errington v Errington [1952] 1 KB 290; [1951] EWCA Civ 2, cited Griffiths v Civil Aviation Authority (1996) 67 FCR 301; [1996] FCA 1502, cited Jack v Smail (1905) 2 CLR 684; [1905] HCA 25,…
[1901] 2 KB 449
[1901] 2 KB 449 Para 1

…One of the authorities cited by their Honours for the proposition is Rose v Buckett [1901] 2 KB 449 in which Collins LJ regarded it as settled for the purposes of the (English) Bankruptcy Act 1869 and earlier legislation:…
[1952] 1 KB 290
[1952] 1 KB 290 Para 1

…The case in which Lord Denning propounded his heresy was Errington v Errington and Woods [1952] 1 KB 290.The case was referred to in Wood and is, no doubt, the source of the suggestion in that case that the licensee had some equitable interest in the land on which the beach house was erected. The facts in Erringto…

Legislation cited in this decision · 5

Bankruptcy Act 1966 (Cth)
5 2 mentions (from Para 1)
Bankruptcy Act 1869 (UK)
1 mention (from Para 1)
Bankruptcy Regulations 1996 (Cth)
6.03(2) 1 mention
Settled Land Act 1958 (Vic)
1 mention (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
16(3) 1 mention

CITATION:	King v King & Ors [2012] QCA 39
PARTIES:	JOHN FRANCIS KING (applicant) v SARAH LOUISE KING (first respondent) LYDIA ELLEN KING (second respondent) BENEDICT JOHN KING (third respondent) SAMUEL DAVID KING (fourth respondent)
FILE NO/S:	Appeal No 7123 of 2011 DC No 832 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 March 2012
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2012
JUDGES:	Chesterman and White JJA, and Margaret Wilson AJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The applicant has leave to appeal against the orders of the District Court made on 18 July 2011. 2. The appeal be allowed and the orders made in the District Court on 18 July 2011 setting aside and/or striking out action BD 832/11 be set aside and instead order that the application to the District Court of 5 July be dismissed. 3. The parties file a consent order in the District Court in the terms appearing in the agreed directions annexed to this order.
CATCHWORDS:	BANKRUPTCY – ADMINISTRATION OF PROPERTY – PROPERTY AVAILABLE FOR PAYMENT OF DEBTS – PROPERTY NOT DIVISIBLE AMONGST CREDITORS – OTHER MATTERS – where applicant and respondents parties to a residential tenancy agreement – where respondents commenced proceedings for an order that the agreement be terminated – where order made – where execution of order stayed pending proceedings commenced by applicant – where applicant sought declaration that respondents are bound by an agreement for life, an order for specific performance of the agreement and an injunction restraining the respondents from evicting the applicant – where applicant a bankrupt – where judge below ordered claim be struck out – where no reasons were given for the order but apparent from the transcript of argument that his Honour was convinced by the respondents’ counsel’s argument that, as a matter of law, the right the applicant sought to enforce in his action was not his but had vested in his trustees in bankruptcy – where the applicant was not legally represented in the District Court – where applicant appeals order striking out his action – where the applicant’s pleading is capable of claiming a bare licence to occupy the unit for the duration of the applicant’s life or for as long as he wishes to remain in occupation – where applicant submits he has an arguable claim – whether the applicant has a distinctly arguable claim that his right to occupy the unit was a personal right or privilege, not a right of property, and that he is the only person (subject to his former wife’s conjoint right) who may enjoy the right by occupying the premises – whether the application should have been struck out Bankruptcy Act 1966 (Cth), s 5, s 58, s 116, s 116(2) Bankruptcy Regulations 1996 (Cth), reg 6.03(2) Settled Land Act 1958 (Vic)