Miller v Loel - [2016] QSC 289

SUPREME COURT OF QUEENSLAND

CITATION:

Miller & Anor v Loel & Anor [2016] QSC 289

PARTIES:

PETER JOHN FRANCIS MILLER

(first plaintiff)
and
SUSAN MARY MILLER
(second plaintiff)

v
JAMES BERESFORD LOEL

(first defendant)
and
PAUL BERNARD MAHAN
(second defendant)

FILE NO:

BS No 989 of 2016

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

8 December 2016

DELIVERED AT:

Brisbane

HEARING DATES:

27, 28 & 31 October 2016

JUDGE:

Flanagan J

ORDER:

The first and second plaintiffs’ claim is dismissed

I will hear the parties as to costs

CATCHWORDS:

REAL PROPERTY – CAVEATS AGAINST DEALINGS – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE – where the first and second plaintiffs were the directors and primary shareholders of Old Coach Developments Pty Ltd – where the first defendant was the solicitor for Devren Pty Ltd – where the second defendant was a director of Devren Pty Ltd – where Old Coach Developments Pty Ltd held the corporate assets of a joint venture between Devren Pty Ltd and other entities wholly owned by the plaintiffs – where the joint venture was established to develop and sell subdivisional land – where a shareholders agreement between the joint venture parties provided that if two specific lots of land, lots 22 and 23, were not sold to third parties, lot 22 would be transferred to the first plaintiff and lot 23 would be transferred to Devren Pty Ltd – where the shareholders agreement was entered into in August 2008 – where the majority of lots were sold in 2009 and 2010 – where lot 22 was not sold until May 2013 – where the relationship between the joint venture parties deteriorated – where the first defendant lodged a caveat over lot 23 on behalf of Devren Pty Ltd in June 2012 – whether the first defendant lodged the caveat with reasonable cause – whether the first defendant or the second defendant continued the caveat with reasonable cause – whether the plaintiffs suffered loss or damage as a result of the caveat being lodged or continued

Land Title Act 1994 (Qld) s 130

Farvet Pty Ltd v Frost [1997] 2 Qd R 39, considered
Gordon v Treadwell Stacey Smith [1996] 3 NZLR 281, considered
Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited (No. 2) [2016] QSC 252, considered
RDN Developments Pty Ltd v Shrambrandt [2011] VSC 130, cited
Re Brooks’ Caveat [2015] 1 Qd R 105; [2014] QSC 76, applied
Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332; [1994] HCA 4, cited

Windlock Pty Ltd v Davidovic [2014] NSWSC 269, considered

APPEARANCES:

The first plaintiff appeared on their own behalf and on behalf of the second plaintiff

J M Lavercombe, solicitor of Lillas & Loel Lawyers Pty Ltd for the first and second defendants

Introduction

On 27 June 2012 caveat No. 714534244 was lodged on behalf of Devren Pty Ltd over lot 23 on Sealed Plan 218844, Certificate of…

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 Miller v Loel

Details

AGLC: Miller v Loel [2016] QSC 289
Case: [2016] QSC 289
Decision Date: 8 December 2016

CaseChat Overview and Summary

In the case of Miller v Loel, the first and second plaintiffs, who were directors and primary shareholders of Old Coach Developments Pty Ltd, brought an action against the first defendant, the solicitor for Devren Pty Ltd, and the second defendant, a director of Devren Pty Ltd. The plaintiffs claimed compensation for the lodging of a caveat by the first defendant on lot 23 of a joint venture's subdivisional land. The dispute arose from a shareholders agreement between the joint venture parties, which specified that if lots 22 and 23 were not sold to third parties, lot 22 would be transferred to the first plaintiff and lot 23 to Devren Pty Ltd. The first defendant lodged the caveat in June 2012, which the plaintiffs argued was without reasonable cause, leading to their claim for compensation.

The court was required to determine whether the first defendant had reasonable cause to lodge the caveat and whether the first or second defendant had reasonable cause to continue it. The plaintiffs argued that the caveat was lodged without reasonable cause and caused them loss or damage. The defendants contended that the caveat was lodged and continued with reasonable cause, given the deteriorating relationship between the joint venture parties and the potential breach of the shareholders agreement. The court needed to consider the nature of the relationship between the parties, the terms of the shareholders agreement, and the circumstances leading up to the lodging of the caveat.

The court found that the first defendant had reasonable cause to lodge the caveat, considering the context of the deteriorating relationship and the potential for a breach of the shareholders agreement. The court also held that the first and second defendants had reasonable cause to continue the caveat, as the plaintiffs had not established that the continuation was unreasonable. As a result, the court dismissed the plaintiffs' claim for compensation. The court directed the parties to discuss the costs of the proceeding.

Orders

Orders of the court

The first and second plaintiffs’ claim is dismissed

I will hear the parties as to costs

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:	Miller & Anor v Loel & Anor [2016] QSC 289
PARTIES:	PETER JOHN FRANCIS MILLER (first plaintiff) and SUSAN MARY MILLER (second plaintiff) v JAMES BERESFORD LOEL (first defendant) and PAUL BERNARD MAHAN (second defendant)
FILE NO:	BS No 989 of 2016
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	8 December 2016
DELIVERED AT:	Brisbane
HEARING DATES:	27, 28 & 31 October 2016
JUDGE:	Flanagan J
ORDER:	The first and second plaintiffs’ claim is dismissed I will hear the parties as to costs
CATCHWORDS:	REAL PROPERTY – CAVEATS AGAINST DEALINGS – COMPENSATION FOR LODGING CAVEAT WITHOUT REASONABLE CAUSE – where the first and second plaintiffs were the directors and primary shareholders of Old Coach Developments Pty Ltd – where the first defendant was the solicitor for Devren Pty Ltd – where the second defendant was a director of Devren Pty Ltd – where Old Coach Developments Pty Ltd held the corporate assets of a joint venture between Devren Pty Ltd and other entities wholly owned by the plaintiffs – where the joint venture was established to develop and sell subdivisional land – where a shareholders agreement between the joint venture parties provided that if two specific lots of land, lots 22 and 23, were not sold to third parties, lot 22 would be transferred to the first plaintiff and lot 23 would be transferred to Devren Pty Ltd – where the shareholders agreement was entered into in August 2008 – where the majority of lots were sold in 2009 and 2010 – where lot 22 was not sold until May 2013 – where the relationship between the joint venture parties deteriorated – where the first defendant lodged a caveat over lot 23 on behalf of Devren Pty Ltd in June 2012 – whether the first defendant lodged the caveat with reasonable cause – whether the first defendant or the second defendant continued the caveat with reasonable cause – whether the plaintiffs suffered loss or damage as a result of the caveat being lodged or continued Land Title Act 1994 (Qld) s 130 Farvet Pty Ltd v Frost [1997] 2 Qd R 39, considered Gordon v Treadwell Stacey Smith [1996] 3 NZLR 281, considered Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited (No. 2) [2016] QSC 252, considered RDN Developments Pty Ltd v Shrambrandt [2011] VSC 130, cited Re Brooks’ Caveat [2015] 1 Qd R 105; [2014] QSC 76, applied Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332; [1994] HCA 4, cited Windlock Pty Ltd v Davidovic [2014] NSWSC 269, considered
APPEARANCES:	The first plaintiff appeared on their own behalf and on behalf of the second plaintiff J M Lavercombe, solicitor of Lillas & Loel Lawyers Pty Ltd for the first and second defendants