Ryan v Simon George and Sons Pty Ltd - [2017] QSC 247

SUPREME COURT OF QUEENSLAND

CITATION:

Ryan v Simon George & Sons Pty Ltd & Anor [2017] QSC 247

PARTIES:

PAULETTE RYAN

(Applicant)

v
SIMON GEORGE & SONS PTY LTD

(First Respondent)
and
ANTHONY FRANCIS McEWAN
(Second Respondent)

FILE NO/S:

SC 463 of 2017

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

31 October 2017

DELIVERED AT:

Cairns

HEARING DATE:

27 October 2017

JUDGE:

Henry J

ORDERS:

1. That part of the application which sought declarations is dismissed.

2. I will hear the parties further as to that part of the application seeking such other orders as this Court deems appropriate and will also hear the parties as to costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT – PRACTICE – INITIATING PROCEDURES – APPLICATION – whether mode of commencement by application under r 11 UCPR correct – whether or not there was a substantial dispute of fact – where counsel for the applicant contended if there was a substantial dispute of fact it was irrelevant because that applicant’s possession was determinative

TORTS – TROVER AND DETINUE – POSSESSIONS OR RIGHT TO POSSESSIONS – RIGHT TO POSSESSION – PARTICULAR RIGHTS – JUS TERTII – where the applicant has possession of the property – where the first respondent has a charge over and where the applicant relied on the principle that a defence of jus tertii is not open to a wrongdoer or stranger against a possessor of the property in question – where the court held that the application was not brought as between a possessor and a wrongdoer

Civil Proceedings Act 2011 (Qld) s 17

Uniform Civil Procedure Rules 1999 (Qld) r 11

Banks v Ferrari & Ors [2000] NSWSC 874, cited

Jeffries v Great Western Railway Company (1856) 2 EL & BL 680, distinguished

The Winkfield [1902] P 42, distinguished

COUNSEL:

M A Jonsson QC for the applicant
P Hackett for the first respondent

No appearance for the second respondent

SOLICITORS:

The Law Office for the applicant

N R Barbi Solicitor for the first respondent

The applicant Ms Ryan seeks the following orders:
“1.     A declaration that the Applicant is entitled to have the entire beneficial interest in a motor vehicle namely a 1966 Ford Mustang convertible bearing the registration PNY-11 and VIN 6T07A204833 (“motor vehicle”)
2.     A declaration that the First Respondent is not entitled to a charge and/or possession of the said motor vehicle.
3.     Such other order or orders that this Honourable Court deems appropriate.”
The dispute underlying the present application is connected with a claim of the first respondent against the second respondent Mr McEwan, heard in Brisbane, in which judgment was given on 28 August 2017 (“the Brisbane proceeding”).
The Brisbane Proceeding
The Brisbane proceeding concerned fraud against the first respondent by Mr McEwan in his capacity as the first respondent’s Cairns branch manager. It was a fraud for which Mr McEwan was also prosecuted and imprisoned. In the Brisbane proceeding it was alleged Mr McEwan…

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: [2017] QSC 247
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the case of Ryan v Simon George and Sons Pty Ltd, the dispute involved Ms Ryan who sought declarations regarding her rights over a vehicle and also sought an order for its return. Simon George and Sons Pty Ltd, a respondent, held a charge over the vehicle and contested Ms Ryan's claims. The legal issues centred around whether the mode of commencement by application was appropriate given the substantial dispute of fact, and if Ms Ryan's possession was determinative of her rights against a wrongdoer or stranger holding a charge over the vehicle.

The court examined the principles of jus tertii, which state that a defence of third party rights is not available against a possessor of the property in question. However, the court held that the application was not framed as a dispute between a possessor and a wrongdoer, but rather as a contest between the applicant and a charge holder. The court found that there was a substantial dispute of fact as to whether Ms Ryan was the owner of the vehicle, and this fact made it inappropriate for the proceeding to have been initiated by application. The court dismissed the part of the application seeking declarations, as it was not the correct procedural approach given the circumstances.

Further, the court decided to hear the parties again to determine if any other orders were appropriate under the novel circumstances of the case, and also to address the issue of costs. The orders issued by the court were to dismiss the part of the application seeking declarations and to hear the parties further regarding other orders and costs.

Orders

Orders of the court

1. That part of the application which sought declarations is dismissed.

2. I will hear the parties further as to that part of the application seeking such other orders as this Court deems appropriate and will also 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

For all of these reasons Ms Ryan cannot in these circumstances prevail merely by pointing to the fact of her possession of the vehicle. Conclusion As already explained, there is a substantial dispute of fact as to whether Ms Ryan is the owner of the vehicle, making it inappropriate for this proceeding to have been started by application. It may be relevant to costs as to whether that ought to have been apparent before the application was filed, so I refrain from expressing a concluded view about that presently. However, it is at least clear in hindsight that the proceeding seeking declarations should not have been started by application. It follows I should not give either of the declarations sought by the application. It is less clear whether some other order ought be deemed appropriate in the novel circumstances of the case. I will allow the parties an opportunity to be heard about that.Orders My orders are:1.That part of the application which sought declarations is dismissed.2.I will hear the parties further as to that part of the application seeking such other orders as this Court deems appropriate and will also hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ryan v Simon George & Sons Pty Ltd & Anor [2017] QSC 247
PARTIES:	*PAULETTE RYAN* (Applicant) v *SIMON GEORGE & SONS PTY LTD* (First Respondent) and ANTHONY FRANCIS McEWAN (Second Respondent)
FILE NO/S:	SC 463 of 2017
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	31 October 2017
DELIVERED AT:	Cairns
HEARING DATE:	27 October 2017
JUDGE:	Henry J
ORDERS:	1. That part of the application which sought declarations is dismissed. 2. I will hear the parties further as to that part of the application seeking such other orders as this Court deems appropriate and will also hear the parties as to costs.
CATCHWORDS:	PROCEDURE – SUPREME COURT – PRACTICE – INITIATING PROCEDURES – APPLICATION – whether mode of commencement by application under r 11 UCPR correct – whether or not there was a substantial dispute of fact – where counsel for the applicant contended if there was a substantial dispute of fact it was irrelevant because that applicant’s possession was determinative TORTS – TROVER AND DETINUE – POSSESSIONS OR RIGHT TO POSSESSIONS – RIGHT TO POSSESSION – PARTICULAR RIGHTS – JUS TERTII – where the applicant has possession of the property – where the first respondent has a charge over and where the applicant relied on the principle that a defence of jus tertii is not open to a wrongdoer or stranger against a possessor of the property in question – where the court held that the application was not brought as between a possessor and a wrongdoer Civil Proceedings Act 2011 (Qld) s 17 Uniform Civil Procedure Rules 1999 (Qld) r 11 Banks v Ferrari & Ors [2000] NSWSC 874, cited Jeffries v Great Western Railway Company (1856) 2 EL & BL 680, distinguished The Winkfield [1902] P 42, distinguished
COUNSEL:	M A Jonsson QC for the applicant P Hackett for the first respondent No appearance for the second respondent
SOLICITORS:	The Law Office for the applicant N R Barbi Solicitor for the first respondent