State of Qld v Beames - [2001] QSC 132

SUPREME COURT OF QUEENSLAND

CITATION: State of Qld v Beames [2001] QSC 132

PARTIES: STATE OF QUEENSLAND
(plaintiff/respondent)
v
DOUGLAS MACLEOD BEAMES
(defendant/applicant)

FILE NO: S7742 of 1999

DIVISION: Trial Division

PROCEEDING: Application

DELIVERED ON: 8 May 2001

DELIVERED AT: Brisbane

HEARING DATES:
16, 30 January, 8 February 2001

JUDGE: Wilson J

ORDERS:
1.          That the defendant’s application for summary judgment be dismissed;

2.          That the plaintiff pay the defendant’s costs of and incidental to the hearings on 16 and 30 January 2001 to be assessed on the indemnity basis;

3.          Subject to order 2, that the costs of the application be reserved.

CATCHWORDS:
CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – SURVEY, DEPOSITED PLAN ETC. – position of boundary between land owned by registered proprietor and land owned by Crown – effect of s 9 and s 10 Land Act 1994 (Qld) on common law – position of ordinary high water mark at spring tide and mean high water mark – whether area of land increased due to filling or reclamation – ownership of additional land resulting from filling or reclamation

REAL PROPERTY – CROWN LANDS – position of boundary between land owned by registered proprietor and land owned by Crown - effect of s 9 and s 10 Land Act 1994 (Qld) on common law

REAL PROPERTY – FENCING OR BOUNDARIES OF LAND - position of boundary between land owned by registered proprietor and land owned by Crown - effect of s 9 and s 10 Land Act 1994 (Qld) on common law - position of ordinary high water mark at spring tide and mean high water mark – whether area of land increased due to filling or reclamation

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – whether s 10 Land Act 1994 (Qld) is retrospective in its operation – effect of s 10 Land Act 1994 (Qld) on common law

Harbours Act 1955 (Qld), s 77.
Land Act 1994 (Qld), s 5, s 8, s 9, s 10, s 13, Schedule 6.
Land Title Act 1994 (Qld).
Transport Operations (Marine Safety) Act 1994 (Qld), s 10.
Uniform Civil Procedure Rules 1999 (Qld), r 293.

Attorney-General v Chambers (1854) 4 De GM & G 206; 43 ER 486 at 215, 489, cited.
Beames v Leader [2000] 1 QdR 347, considered.
Brighton and Hove General Gas Company v Hove Bungalows Limited [1924] 1 Ch 372, applied.
Pascale v Sutherland Shire Council (1995) 87 LGERA 30, applied.
Southern Centre of Theosophy Inc v South Australia [1982] 1 AC 706, applied.
Svendsen v State of Queensland and Anor (unreported, Demack J, Supreme Court of Queensland, Rockhampton No 32 of 1996, 29 April 1999), considered.

COUNSEL: DA Skennar for the applicant defendant
RJ Douglas SC and DJ Campbell for the respondent plaintiff

SOLICITORS: Chris Reeve & Co for the applicant defendant
CW Lohe, Crown Solicitor for the respondent plaintiff

WILSON J: This is an application by the defendant pursuant to rule 293 of the Uniform Civil Procedure Rules for judgment,…

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: [2001] QSC 132
Decision Date: 8 May 2001

CaseChat Overview and Summary

The case of State of Queensland v Beames concerned a dispute over the ownership of land situated between the ordinary high water mark at spring tide and the mean high water mark. The land in question was located in Queensland, and the plaintiff, the State of Queensland, sought to determine the ownership of the land in dispute. The defendant, Mr Beames, argued that he was the owner of the land in question. The case was heard in the District Court of Queensland.

The legal issues that the court was required to decide included the effect of section 9 and section 10 of the Land Act 1994 (Qld) on the common law, the position of the boundary between land owned by a registered proprietor and land owned by the Crown, and whether the area of land had increased due to filling or reclamation. The court was also required to determine whether section 10 of the Land Act 1994 (Qld) was retrospective in its operation.

The court found that section 10 of the Land Act 1994 (Qld) did not have retrospective effect and did not alter the common law position regarding the ownership of land situated between the ordinary high water mark at spring tide and the mean high water mark. The court held that the common law position remained that the Crown owned the land in question. The court also found that the area of land had not increased due to filling or reclamation. The defendant's application for summary judgment was dismissed, and the plaintiff was ordered to pay the defendant's costs of and incidental to the hearings on 16 and 30 January 2001 to be assessed on the indemnity basis. The costs of the application were reserved subject to order 2.

Orders

Orders of the court

1. That the defendant’s application for summary judgment be dismissed;

2. That the plaintiff pay the defendant’s costs of and incidental to the hearings on 16 and 30 January 2001 to be assessed on the indemnity basis;

3. Subject to order 2, that the costs of the application be reserved.

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:	State of Qld v Beames [2001] QSC 132
PARTIES:	STATE OF QUEENSLAND (plaintiff/respondent) v DOUGLAS MACLEOD BEAMES (defendant/applicant)
FILE NO:	S7742 of 1999
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	8 May 2001
DELIVERED AT:	Brisbane
HEARING DATES:	16, 30 January, 8 February 2001
JUDGE:	Wilson J
ORDERS:	1. That the defendant’s application for summary judgment be dismissed; 2. That the plaintiff pay the defendant’s costs of and incidental to the hearings on 16 and 30 January 2001 to be assessed on the indemnity basis; 3. Subject to order 2, that the costs of the application be reserved.
CATCHWORDS:	CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – SURVEY, DEPOSITED PLAN ETC. – position of boundary between land owned by registered proprietor and land owned by Crown – effect of s 9 and s 10 Land Act 1994 (Qld) on common law – position of ordinary high water mark at spring tide and mean high water mark – whether area of land increased due to filling or reclamation – ownership of additional land resulting from filling or reclamation REAL PROPERTY – CROWN LANDS – position of boundary between land owned by registered proprietor and land owned by Crown - effect of s 9 and s 10 Land Act 1994 (Qld) on common law REAL PROPERTY – FENCING OR BOUNDARIES OF LAND - position of boundary between land owned by registered proprietor and land owned by Crown - effect of s 9 and s 10 Land Act 1994 (Qld) on common law - position of ordinary high water mark at spring tide and mean high water mark – whether area of land increased due to filling or reclamation STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – whether s 10 Land Act 1994 (Qld) is retrospective in its operation – effect of s 10 Land Act 1994 (Qld) on common law Harbours Act 1955 (Qld), s 77. Land Act 1994 (Qld), s 5, s 8, s 9, s 10, s 13, Schedule 6. Land Title Act 1994 (Qld). Transport Operations (Marine Safety) Act 1994 (Qld), s 10. Uniform Civil Procedure Rules 1999 (Qld), r 293. Attorney-General v Chambers (1854) 4 De GM & G 206; 43 ER 486 at 215, 489, cited. Beames v Leader [2000] 1 QdR 347, considered. Brighton and Hove General Gas Company v Hove Bungalows Limited [1924] 1 Ch 372, applied. Pascale v Sutherland Shire Council (1995) 87 LGERA 30, applied. Southern Centre of Theosophy Inc v South Australia [1982] 1 AC 706, applied. Svendsen v State of Queensland and Anor (unreported, Demack J, Supreme Court of Queensland, Rockhampton No 32 of 1996, 29 April 1999), considered.
COUNSEL:	DA Skennar for the applicant defendant RJ Douglas SC and DJ Campbell for the respondent plaintiff
SOLICITORS:	Chris Reeve & Co for the applicant defendant CW Lohe, Crown Solicitor for the respondent plaintiff