Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd

[2010] QDC 283

[2010] QDC 283

DISTRICT COURT OF QUEENSLAND

JUDGE ROBIN QC

No 3470 of 2007

OAKWOOD CONSTRUCTIONS PTY LTD	Plaintiff
and
WYNDON PROPERTIES PTY LTD	Defendant

BRISBANE

..DATE 22/06/2010

..JUDGMENT

CATCHWORDS

Property Law Act 1974, s 197
District Court of Queensland Act 1967, s 69

Where court concluded defendant's land ought to vest in the plaintiff which had erected improvements there under a mistake - what orders appropriate to protect parties' interests in relation to the conveyance and the substantial compensation the plaintiff must pay - no submissions made in that regard or about incidence of rates, land tax and stamp duty
- revelation that plaintiff had made an offer to settle required court to reconsider its view expressed in published reasons that plaintiff should get no costs - costs issue deferred to give defendant opportunity to be heard about costs

HIS HONOUR:  The Court makes an order in terms of the
initialled draft which provides as follows: 

THE ORDER OF THE COURT IS THAT:

1.It is just and equitable that orders be made pursuant to section 197 of the Property Law Act 1974 (Qld) in respect of land at 201 Lakes Drive, Laidley in the State of Queensland being Lot 24 RP 854930 Parish of Churchill, County of Laidley (“the land”), presently registered in the name of the defendant, the plaintiff having constructed a dwelling house thereon.

2.The plaintiff pay to the respondent as compensation under section 197(1)(c) the sum of $95,000.

3.Upon payment of this amount, the land vest in the plaintiff under section 197(1)(2).

4.Costs adjourned to a date to be fixed on 7 days’ notice.

5.There be liberty to apply.

The parties were not necessarily ready to proceed today.  Indeed, the defendant hasn't appeared.

Reasons for the Court's conclusion were published on the
12th of March 2010.  It seemed desirable for the proceeding to be resolved by the making of orders before the commencement of
the mid-year vacation.

The Court appreciates Mr Lindwall's attendance to confirm that
Mr Barlow of counsel, who's been under some pressure from my
associate to make submissions about an appropriate order, has
been totally unable to assist - essentially because the relevant principal of the plaintiff has been overseas or otherwise uncontactable.

There are reasons for the determination of what is the
appropriate order being complex.  The first of them is that
it's unusual for the District Court to be making a vesting
order. It has done so pursuant to section 197 of the Property
Law Act 1974 which makes provision in that regard, but on the basis that the Court was granting ancillary relief under section 69 of the District Court of Queensland Act in a proceeding which sought different relief of a kind that clearly came within the District Court's jurisdiction. I'm in no doubt that there is jurisdiction to make the order.

I've taken the liberty, while the matter's been in abeyance,
of consulting Mr Locke at the Titles Office.  He and a
designated officer have provided indications of what orders
ought be acceptable for processing; indeed, examples of
recent orders, mostly made in the Supreme Court, which have
been processed, have been supplied to me.  There was a further
example emanating from the District Court, an order of Judge
Robertson.  The Court's concerns went further.

It's unknown whether the parties will be minded to cooperate
to bring to fruition what the Court has decided ought to
happen.  It's unknown whether it might be necessary to resort
to authorising a Court officer to sign a transfer and the like
and whether any arrangements have to be made for the security
of the $95,000 should the plaintiff pay it over and things go
wrong; the plaintiff is probably protected by the caveat which it has placed against the title.  Then there may be other issues, such as adjustment of rates or land tax.  I'm not making that comment on the basis that I hold the view that such is the case.

Another consideration that might concern the parties is stamp
duty.  It may be the case that a differently formulated order
might have different and more acceptable duty implications;
once again, I've done no investigation of this matter and have
no ideas about it myself.

Mr Barlow, this morning, has raised a new complication.  The
Court formed the view that everything that happened was
essentially the plaintiff's fault and that it ought not to
recover any costs.  Mr Barlow's tendered this morning - as
early as he could - as Exhibit 40 an offer which his client made as long ago as the 16th of June 2008 to accept the sum of $60,000 inclusive of costs in full satisfaction of its claim in respect of the subject property and the defendant's
counterclaim.

The non-appearance of the defendant today may owe something to
the assurance which the published reasons appeared to give
that the defendant was not at risk as to costs.  That
situation has changed by reason of the offer, which at least
obliges the Court to consider whether it's one that the
defendant ought to have accepted on pain of being punished in
costs.

As Mr Barlow accepts, it's not at all an easy judgment to
make.  There is no clear way of assessing the equivalence of
the plaintiff's offer to take $60,000 to walk away and the
outcome which the Court thought appropriate of the plaintiff
obtaining title to the land but on the basis of payment of
$95,000 compensation.  Clearly, the Court shouldn't embark on
determination of questions of that kind in the absence of the
defendant, at least without making it clear to the defendant
that circumstances to do with the offer mean that costs may be
ordered against it.

The draft order which has been signed obviously incorporates
different arrangements for costs from the proposal which my
associate had advised the parties of by email.  In paragraph 4,
it stipulated that there be no orders as to costs.
The last matter to arguably merit mention this morning is that
an error appears in paragraph 33 of the published reasons in
which the reference to Mr Lewis is clearly erroneous.  He was,
of course, the personification of the plaintiff and the
reference ought to have been to Mr Richards standing for the
defendant.  Thank you very much.

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