Logan v Logan
[2013] QSC 72
•22 March 2013
SUPREME COURT OF QUEENSLAND
CITATION:
Logan v Logan [2013] QSC 72
PARTIES:
CATHERINE MARY LOGAN
v
KAYE LENORE LOGAN BY HER LITIGATION GUARDIAN BARBARA LOGAN
FILE NO/S:
BS10885/2010
DIVISION:
Trial
PROCEEDING:
Application on the papers
DELIVERED ON:
22 March 2013
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Peter Lyons J
ORDER:
1. Further to the order of the Supreme Court of Queensland made by Peter Lyons J on 17 May 2012, the court orders that, consequent upon the transfers of Lot 19 on SP225671, County of Canning, Parish of Neara, Title Reference 50805504 (the property) by Donald Louis Logan, deceased, to Catherine Mary Logan, dated 16 February 2010 being dealing numbers 713254424 and 713369950, being set aside, the property vest in Michael Karl Klatt as trustee pursuant to section 82 of the Trusts Act 1973 (Qld).
2. That the costs of and incidental to this application be paid from the Estate of Donald Louis Logan on an indemnity basis.
CATCHWORDS:
PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where the applicant is the administrator of the estate of Donald Louis Logan – where applicant sought to recover property alleged to form part of the estate of Mr Logan – where orders were made declaring property was held on trust for the estate – where applicant sought unsuccessfully to have property registered in his name – whether court has power to make further supplementary orders – whether further supplementary orders should be made
Caboolture Park Shopping Centre Pty Ltd (In Liq) V White Industries (Qld) Pty Ltd (1993) 45 FCR 224
Trusts Act 1973 (Qld) s82
Uniform Civil Procedure Rules (Qld) 1999 r668
SOLICITORS:
Mullins Lawyers for the Applicant.
Peter Lyons J: On 17 May 2012 at a review hearing I made orders in Proceeding No. 9451 of 2010. It is now said that one of the orders then made is not effective, and a further order is sought.
The plaintiff in the proceedings is the administrator of the estate of Donald Louis Logan (deceased). He sought to recover property alleged to form part of Mr Logan’s estate, from the first defendant, Catherine Mary Logan; and from the second defendant. Both defendants consented to the following order:
“…
2. as against the first defendant and the third defendant:(a)the transfer of Lot 19 on SP 225671, county of Canning, Parish of Neara, Title Reference 50805504 (Pineview) by Donald Louis Logan, deceased, to the first defendant dated 16 February 2010, being dealing numbers 713254424 and 713369950, be set aside;
(b)it is declared that:
(i) the first defendant holds, and has always held:
(A) Pineview;
(B) subject to registered mortgages 712313706 in favour of Australia and New Zealand Banking Group Limited and 713670520 in favour of Murdoch Lawyers Pty Ltd, Lot 48 on SP 184388, County of Canning, Parish of Bribie, Title Reference 50735046;
(C) subject to hire purchase agreement 677740 dated 6 December 2010 in favour of BMW Australia Finance Ltd, a BMW 740 motor vehicle, registration number QCK692 (BMW), or its net proceeds of sale;
(ii) subject to chattel mortgage number 251603631 in favour of Esanda, the third defendant holds, and has always held, all its right, title and interest in a Coachman Motorhome 310DS, registration number 137MXQ (Coachman),
on trust for the estate of Donald Louis Logan, deceased;”
The applicant has attempted unsuccessfully to have Pineview registered in his name. On 9 August 2012, he wrote to the Registrar of Titles, enclosing a draft Form 14, being a General Request, requesting that dealings (no doubt those transferring Pineview to the name of Ms Logan) be set aside.
The Registrar replied on 20 August 2012. The letter stated that no order had been made by the Court, requiring or directing a change to the freehold land register consequent upon the transfers being set aside. The letter suggested that a further order, directing how the registered owner details are to be recorded over the property, might be required.
On 4 December 2012, the applicant then sought a determination on the papers, with the consent of the first defendant, for an order that he be registered as the proprietor of Pineview. He then sought the view of the Registrar of Titles on the proposed order. He was advised that the order could not be made under s 114 of the Land Title Act 1994 (the section relied upon for the order). Further communications resulted in a proposal to seek an order to vest Pineview in the applicant. Hence the present application.
The order now proposed is sought to be made pursuant to r 668 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Submissions were sought on the question whether the order could be made under that rule. The submissions which were provided fail adequately to address that question.
Rule 668, on its face, applies, either if facts arise after an order is made entitling the person against whom it is made to be relieved from it; or if facts are discovered after an order is made, that if discovered in time, would have entitled the person against whom the order is made to an order or decision in that person’s favour, or to a different order. No fact satisfying either condition has been identified. No reference was made to rule 667.
The difficulty arises because the order which has been made was a final order. There is therefore a question as to whether the court has power to make the further order now sought. A similar question was considered in Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd[1]. The Full Court of the Federal Court there recognised the general rule that, at common law, once a judgment of the court has been passed and entered, the Court thereafter lacks power to make an order which alters or sets aside the judgment. However, it also recognised some exceptions, one being a power to make a supplemental order, which does not vary or alter the initial order[2]. While such an order may be made in aid of the enforcement and working out of the original order, that is not the only basis on which the order may be made[3].
[1](1993) 45 FCR 224.
[2]Caboolture Park at p 235.
[3]Caboolture Park at p 235.
Here, an order is not sought varying the original order. Rather, the purpose of the order sought is to bring about the result intended by the original order. Accordingly, I am satisfied that it is within my power to make the order.
The order now sought is that Pineview vest in the applicant, pursuant to s 82 of the Trusts Act 1973 (Qld). Section 82(2)(a) permits the court to make a vesting order, where the court appoints, or has appointed, a new trustee. The term “trustee” is defined in s 5 of that Act to include a personal representative, that term itself being defined to include an administrator for the time being of the estate of a deceased person. The applicant is therefore a trustee for the purposes of s 82(2)(a). Section 90(1) provides that a vesting order vests the property to which it relates in the person named in the order, without any transfer. Hence the view, earlier expressed, that the purpose of the order sought is to bring about the results intended by the original order.
Accordingly, I am prepared to grant the application.
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