Re Coffey, Bartel - [1995] QSC 67

IN THE SUPREME COURT

OF QUEENSLAND O.S. No. 192 of 1995

[Re Coffey, Bartel]

IN THE MATTER of Land Title Act 1994

- and -
IN THE MATTER of a caveat lodged by FRANCIS JAMES COFFEY
- and -
IN THE MATTER of and application by LYNETTE JEAN BARTEL
JUDGMENT - DERRINGTON J.

Delivered:21 April 1995

CATCHWORDS: REAL PROPERTY - Caveat - Sale by holder of power of attorney - No condition on face - Verbal condition alleged - Owner knowingly failing to forbid auction or to warn potential purchasers - Failing to protest until filing caveat on morning of settlement of sale - Caveat removed.

Sale by agent in excess of authority - Purchaser innocent - Whether principal can have sale set aside - Conduct of principal, effect of.

Counsel:A.C. Smith for the applicant
A.P.J. Collins for the respondent

Solicitors:Howard Gill and Brown T/A for Welsh & Welsh for the applicant
Garland Waddington for the respondent

Hearing Date: 10 April 1995

JUDGMENT - DERRINGTON J.

Delivered the 21st day of April 1995

The above-named Frances James Coffey is the registered proprietor of certain land on the title of which he has registered a caveat On 29 March 1995 Mackenzie J ordered among other things that it be removed on or after 10 April 1995, the date on which this application was heard. Mr Coffey now applies to set that order aside, and its effect has been deferred pending the delivery of this judgment.
That order was obtained by Ms Bartel who was the purchaser of the land when it was sold at auction by Waters Gamble & Associates Pty Ltd ("Waters Gamble") under a power of attorney granted by Mr Coffey on 7 November 1994. At the time of its grant Mr Coffey was indebted to Waters Gamble in a substantial sum the repayment of which was secured over the land by mortgage. The terms of the mortgage are not known, but after his default he granted the power of attorney which expressly empowered Waters Gamble to sell the land for a price of not less than $100,000, and to perform all necessary ancillary acts. It was expressed to be irrevocable.
He now claims that the power of attorney was conditional. His affidavit describes his claim in these terms.
"1.I say that the Power of Attorney given by me in favour of Waters Gamble and Associates Pty Ltd on the 7th November, 1994 was given by me solely for the purpose of allowing Waters Gamble and Associates Pty Ltd to sell the property known as 14 Cottonwood Street, Mudjimba, Queensland as attorney in the event that I was not in a position to discharge my obligations to the said Waters Gamble and Associates under a Bill of Mortgage dated the 29th July, 1993 prior to the date upon which the mortgagee had fixed for the auction of the property, known as 14 Cottonwood Street, Mudjimba, Queensland.

2.I further say that I gave the said Power of Attorney in favour…

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 Re Coffey, Bartel

Details

AGLC: Re Coffey, Bartel [1995] QSC 67
Case: [1995] QSC 67
Decision Date: 21 April 1995

CaseChat Overview and Summary

The matter before Derrington J in the Supreme Court of Queensland involved a dispute between Francis James Coffey, the registered proprietor of certain land, and Lynette Jean Bartel, who had purchased the land at auction. Coffey had granted a power of attorney to Waters Gamble & Associates Pty Ltd, authorising them to sell the property for a minimum price of $100,000. Coffey claimed that the power of attorney was conditional, and he now sought to set aside the sale on this basis. The legal issues in the case centred around whether Coffey's alleged condition on the power of attorney could be enforced, and if so, whether Bartel's purchase could be set aside due to Coffey's and Waters Gamble's conduct. Derrington J found that the power of attorney was expressed to be irrevocable and unconditional, and that Bartel, as a bona fide purchaser for value without notice, was unaffected by any unexpressed conditions. Furthermore, Coffey's conduct, including his failure to protest the sale or warn potential purchasers of any limitations on the agent's authority, was such that it would be inequitable to allow him to rely on the alleged condition or Waters Gamble's conduct to defeat Bartel's equitable interest. Consequently, the application by Coffey to set aside the sale was dismissed with costs.

Orders