Klement v Pencoal Limited - [2000] QCA 152

SUPREME COURT OF QUEENSLAND

CITATION: Klement v Pencoal Ltd & Ors [2000] QCA 152

PARTIES: KOLOMAN KLEMENT
(plaintiff/appellant)
v
PENCOAL LIMITED
(first defendant/first respondent)
SOUTH BLACKWATER COAL LIMITED
(second defendant/second respondent)
IAN RUSSELL GOULD
(third defendant/third respondent)
JOHN CHARLES CRIDLAND
(fourth defendant/fourth respondent)
THEODORE PAUL LINDNER
(fifth defendant)

FILE NO/S: Appeal No 4600 of 1999
SC No 1469 of 1992

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 5 May 2000

DELIVERED AT: Brisbane

HEARING DATE: 4 April 2000

JUDGES: de Jersey CJ, McMurdo P, Davies JA
Judgment of the Court

ORDER: Appeal dismissed.
Appellant to pay the respondents’ costs including any reserved costs to be assessed.

CATCHWORDS:
CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – INDEFEASIBILITY OF TITLE: CERTIFICATE AS EVIDENCE – EXCEPTIONS – FRAUD OR FORGERY – appellant’s signature forged to effect transfer of property – claims that eventual transferee held one-half of its proprietary interest on trust for the appellant, for rectification of the register, for damages for conversion and for an account dismissed at trial – whether trial judge wrongly concluded the circumstances of the forgery did not prevent transfer of title

CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – TITLE – PROOF OF TITLE BY VENDOR – PROOF GENERALLY – whether first respondent’s solicitor’s default led to acquisition of title to the appellant’s detriment – whether solicitors should have enquired expressly into the validity of the appellant’s signatures and the fifth defendant’s entitlement to all moneys payable

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN PRINCIPAL AND THIRD PERSONS – RIGHTS AND LIABILITIES OF PRINCIPAL IN RESPECT OF CONTRACTS OF AGENT – IN GENERAL – whether trial judge wrongly found fifth defendant had appellant’s ostensible authority to tender documents at settlement, and to tender forged documents as authentic – whether misconstruction of finding – whether aggregation of circumstances sufficiently proved existence of authority to present settlement documents as authentic - validity of a number of findings in relation to relationship between appellant and fifth defendant – whether trial judge wrongly held that appellant’s deliberate silence, despite knowledge of forgery, amounted to ratification - whether trial judge wrongly found the appellant duty bound to warn the first and second respondents of the forgery – whether trial judge wrongly found the appellant estopped from denying the effectiveness of the transfers because of his failure to inform the first and second respondents of the forgery and of the termination of the power of attorney

Fung Kai Sun v Chan Fui Hing [1951] AC 489, applied
McLaughlin v City Bank of Sydney (1912) 14 CLR 684, referred to
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146, referred to
Spiro v Lintern [1973] 1 WLR 1002, considered
West v Commercial Bank of Australia (1935) 55 CLR 315, applied
West v Dillicar [1920] NZLR 139; [1921] NZLR 617, considered

COUNSEL: FL Harrison QC,…

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.

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Details

Case: [2000] QCA 152
Decision Date: 5 May 2000

CaseChat Overview and Summary

The appeal in Klement v Pencoal Limited was brought by the appellant against Pencoal Limited and others. The appellant claimed that his signature had been forged to facilitate a transfer of property. The appellant sought to establish that the eventual transferee held one-half of the proprietary interest on trust for him, for rectification of the register, for damages for conversion and for an account. These claims were dismissed at trial. The central issue before the court was whether the trial judge had erred in concluding that the circumstances surrounding the forgery did not prevent the transfer of title. Additionally, the court had to consider whether the first respondent's solicitor's default led to the acquisition of title to the appellant's detriment, and whether the solicitors should have explicitly enquired into the validity of the appellant's signatures and the fifth defendant's entitlement to all moneys payable. The court also examined whether the trial judge had correctly found that the fifth defendant had the appellant's ostensible authority to tender documents at settlement, including forged documents as authentic. Another significant issue was whether the aggregation of circumstances sufficiently proved the existence of authority to present settlement documents as authentic, and the validity of various findings concerning the relationship between the appellant and the fifth defendant.

The court held that the trial judge's conclusion that the circumstances of the forgery did not prevent the transfer of title was correct. The court found that the appellant had not established that the forged signature rendered the transfer invalid. The court further determined that the trial judge's findings on the solicitor's default, the ostensible authority of the fifth defendant, and the relationship between the appellant and the fifth defendant were all supported by the evidence. The court found no misconstruction of the findings and held that the appellant's silence, despite knowledge of the forgery, did not amount to ratification. The court also held that the appellant was not duty bound to warn the first and second respondents of the forgery and that the appellant was not estopped from denying the effectiveness of the transfers due to his failure to inform the respondents of the forgery and the termination of the power of attorney. The court concluded that the trial judge's findings were well-supported and dismissed the appeal. The appellant was ordered to pay the respondents' costs, including any reserved costs to be assessed.

Orders

Orders of the court

Appeal dismissed.

Appellant to pay the respondents’ costs including any reserved costs to be assessed.

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.

CITATION:	Klement v Pencoal Ltd & Ors [2000] QCA 152
PARTIES:	KOLOMAN KLEMENT (plaintiff/appellant) v PENCOAL LIMITED (first defendant/first respondent) SOUTH BLACKWATER COAL LIMITED (second defendant/second respondent) IAN RUSSELL GOULD (third defendant/third respondent) JOHN CHARLES CRIDLAND (fourth defendant/fourth respondent) THEODORE PAUL LINDNER (fifth defendant)
FILE NO/S:	Appeal No 4600 of 1999 SC No 1469 of 1992
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 May 2000
DELIVERED AT:	Brisbane
HEARING DATE:	4 April 2000
JUDGES:	de Jersey CJ, McMurdo P, Davies JA Judgment of the Court
ORDER:	Appeal dismissed. Appellant to pay the respondents’ costs including any reserved costs to be assessed.
CATCHWORDS:	CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – INDEFEASIBILITY OF TITLE: CERTIFICATE AS EVIDENCE – EXCEPTIONS – FRAUD OR FORGERY – appellant’s signature forged to effect transfer of property – claims that eventual transferee held one-half of its proprietary interest on trust for the appellant, for rectification of the register, for damages for conversion and for an account dismissed at trial – whether trial judge wrongly concluded the circumstances of the forgery did not prevent transfer of title CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – MATTERS ARISING BETWEEN CONTRACT AND CONVEYANCE – TITLE – PROOF OF TITLE BY VENDOR – PROOF GENERALLY – whether first respondent’s solicitor’s default led to acquisition of title to the appellant’s detriment – whether solicitors should have enquired expressly into the validity of the appellant’s signatures and the fifth defendant’s entitlement to all moneys payable CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN PRINCIPAL AND THIRD PERSONS – RIGHTS AND LIABILITIES OF PRINCIPAL IN RESPECT OF CONTRACTS OF AGENT – IN GENERAL – whether trial judge wrongly found fifth defendant had appellant’s ostensible authority to tender documents at settlement, and to tender forged documents as authentic – whether misconstruction of finding – whether aggregation of circumstances sufficiently proved existence of authority to present settlement documents as authentic - validity of a number of findings in relation to relationship between appellant and fifth defendant – whether trial judge wrongly held that appellant’s deliberate silence, despite knowledge of forgery, amounted to ratification - whether trial judge wrongly found the appellant duty bound to warn the first and second respondents of the forgery – whether trial judge wrongly found the appellant estopped from denying the effectiveness of the transfers because of his failure to inform the first and second respondents of the forgery and of the termination of the power of attorney Fung Kai Sun v Chan Fui Hing [1951] AC 489, applied McLaughlin v City Bank of Sydney (1912) 14 CLR 684, referred to Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146, referred to Spiro v Lintern [1973] 1 WLR 1002, considered West v Commercial Bank of Australia (1935) 55 CLR 315, applied West v Dillicar [1920] NZLR 139; [1921] NZLR 617, considered
COUNSEL:	FL Harrison QC,…