State of Queensland v Beames - [2003] QSC 399

SUPREME COURT OF QUEENSLAND

CITATION:

State of Queensland v Beames [2003] QSC 399

PARTIES:

STATE OF QUEENSLAND
(plaintiff)
v
DOUGLAS MACLEOD BEAMES
(defendant)

FILE NO/S:

SC No 7742 of 1999

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

26 September 2003

JUDGE:

McMurdo J

ORDERS:

1. The plaintiff have leave to proceed against the defendant pursuant to r 72 of the UCPR;

2.     2.    Raj Khatri and Morgan Lane (as trustees of Douglas   MacLeod Beames) be added as defendants;

3.     3.    The plaintiff’s application to strike out the counterclaim is dismissed;

4.     4.    It is directed that:

5.            (a) A surveyor engaged by the plaintiff as an expert, and any professional colleague or assistant of his or hers, be granted such access to Lot 29 on RP 12574, County of Stanley, Parish of Bulimba (“Lot 29”) as is needed for the purposes of carrying out surveys of the land, observing trenching works and preparing an expert report in relation to these proceedings;

6.     (b) Any survey pegs placed on Lot 29 by the surveyor not be removed by either party until completion of these proceedings;

7.           (c) If required, the surveyor engaged by the plaintiff may insert tank screws into the concrete on the perimeter of the house foundations located on Lot 29. These may not be removed by either party until completion of these proceedings;

8.            (d) A botanist engaged by the plaintiff as an expert be granted such access to Lot 29 as is needed for the purposes of determining changes in vegetation on the land and delineating the areas of marine influence, observing trenching works and preparing an expert report in relation to these proceedings;

9.          (e) A geotechnical engineer engaged by the plaintiff as an expert, and any professional colleague or assistant of his or hers, be granted such access to Lot 29 as is needed for the purposes of determining how access will be gained to Lot 29, where trenches will be dug and carrying out trenching works and preparing an expert report in relation to these proceedings;

10.       (f) The boundary fence of Lot 29 may be removed if necessary to gain access to Lot 29. If this is done, the plaintiff is to reinstate the fence to the condition it was in immediately before the access point was made as soon as reasonably possible after the trenching work has been completed; and

(g) The plaintiff is to give the defendant 24 hours written notice prior to anyone accessing Lot 29 in accordance with this order.

5.   The costs of this application be reserved.
    6. Liberty to apply.

CATCHWORDS:

PRACTICE – JOINDER – where application for substitution of defendant’s trustees in bankruptcy as defendants – where trustees in bankruptcy and defendant oppose substitution application – where proceeding concerns contest as to correct boundary of defendant’s property – where defendant remains legal owner with equitable interest vested in trustees in bankruptcy –…

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: [2003] QSC 399
Decision Date: 21 November 2003

CaseChat Overview and Summary

The State of Queensland, represented by the Director of Public Prosecutions, initiated proceedings against Douglas MacLeod Beames in the District Court of Queensland. The dispute centers on the correct boundary of Beames' property, specifically Lot 29 on RP 12574, County of Stanley, Parish of Bulimba. Beames, who is the legal owner of the property but has an equitable interest vested in his trustees in bankruptcy, Raj Khatri and Morgan Lane, is contesting the claim. Both Beames and his trustees oppose the substitution of the trustees as defendants in the proceeding.

The primary legal issues in this case pertain to the substitution of defendants in the proceedings and the effect of the deemed abandonment of a counterclaim by Beames' trustees in bankruptcy. The court had to determine whether the trustees should be substituted or joined as defendants, given that Beames intends to contest the plaintiff's claim, but his trustees do not. Additionally, the court had to decide whether the deemed abandonment of the counterclaim by the trustees put an end to the cause of action involved within it.

The court ruled that the plaintiff should be granted leave to proceed against Beames under rule 72 of the Uniform Civil Procedure Rules 1999 (Qld). The trustees in bankruptcy, Raj Khatri and Morgan Lane, were to be added as defendants. The plaintiff's application to strike out the counterclaim was dismissed. The court also made several orders granting access to various experts engaged by the plaintiff to Lot 29 for the purposes of the proceedings, including surveyors, a botanist, and a geotechnical engineer. The court ordered that the boundary fence of Lot 29 may be removed if necessary to gain access to the land, with the plaintiff required to reinstate the fence after the trenching work is completed. The costs of the application were reserved, and liberty to apply was granted.

Orders

Orders of the court

1. The plaintiff have leave to proceed against the defendant pursuant to r 72 of the UCPR;

2. 2. Raj Khatri and Morgan Lane (as trustees of Douglas MacLeod Beames) be added as defendants;

3. 3. The plaintiff’s application to strike out the counterclaim is dismissed;

4. 4. It is directed that:

5. (a) A surveyor engaged by the plaintiff as an expert, and any professional colleague or assistant of his or hers, be granted such access to Lot 29 on RP 12574, County of Stanley, Parish of Bulimba (“Lot 29”) as is needed for the purposes of carrying out surveys of the land, observing trenching works and preparing an expert report in relation to these proceedings;

6. (b) Any survey pegs placed on Lot 29 by the surveyor not be removed by either party until completion of these proceedings;

7. (c) If required, the surveyor engaged by the plaintiff may insert tank screws into the concrete on the perimeter of the house foundations located on Lot 29. These may not be removed by either party until completion of these proceedings;

8. (d) A botanist engaged by the plaintiff as an expert be granted such access to Lot 29 as is needed for the purposes of determining changes in vegetation on the land and delineating the areas of marine influence, observing trenching works and preparing an expert report in relation to these proceedings;

9. (e) A geotechnical engineer engaged by the plaintiff as an expert, and any professional colleague or assistant of his or hers, be granted such access to Lot 29 as is needed for the purposes of determining how access will be gained to Lot 29, where trenches will be dug and carrying out trenching works and preparing an expert report in relation to these proceedings;

10. (f) The boundary fence of Lot 29 may be removed if necessary to gain access to Lot 29. If this is done, the plaintiff is to reinstate the fence to the condition it was in immediately before the access point was made as soon as reasonably possible after the trenching work has been completed; and

(g) The plaintiff is to give the defendant 24 hours written notice prior to anyone accessing Lot 29 in accordance with this order.

5. The costs of this application be reserved.

6. Liberty to apply.

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 Queensland v Beames [2003] QSC 399
PARTIES:	STATE OF QUEENSLAND (plaintiff) v DOUGLAS MACLEOD BEAMES (defendant)
FILE NO/S:	SC No 7742 of 1999
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	26 September 2003
JUDGE:	McMurdo J
ORDERS:	1. The plaintiff have leave to proceed against the defendant pursuant to r 72 of the UCPR; 2. 2. Raj Khatri and Morgan Lane (as trustees of Douglas MacLeod Beames) be added as defendants; 3. 3. The plaintiff’s application to strike out the counterclaim is dismissed; 4. 4. It is directed that: 5. (a) A surveyor engaged by the plaintiff as an expert, and any professional colleague or assistant of his or hers, be granted such access to Lot 29 on RP 12574, County of Stanley, Parish of Bulimba (“Lot 29”) as is needed for the purposes of carrying out surveys of the land, observing trenching works and preparing an expert report in relation to these proceedings; 6. (b) Any survey pegs placed on Lot 29 by the surveyor not be removed by either party until completion of these proceedings; 7. (c) If required, the surveyor engaged by the plaintiff may insert tank screws into the concrete on the perimeter of the house foundations located on Lot 29. These may not be removed by either party until completion of these proceedings; 8. (d) A botanist engaged by the plaintiff as an expert be granted such access to Lot 29 as is needed for the purposes of determining changes in vegetation on the land and delineating the areas of marine influence, observing trenching works and preparing an expert report in relation to these proceedings; 9. (e) A geotechnical engineer engaged by the plaintiff as an expert, and any professional colleague or assistant of his or hers, be granted such access to Lot 29 as is needed for the purposes of determining how access will be gained to Lot 29, where trenches will be dug and carrying out trenching works and preparing an expert report in relation to these proceedings; 10. (f) The boundary fence of Lot 29 may be removed if necessary to gain access to Lot 29. If this is done, the plaintiff is to reinstate the fence to the condition it was in immediately before the access point was made as soon as reasonably possible after the trenching work has been completed; and (g) The plaintiff is to give the defendant 24 hours written notice prior to anyone accessing Lot 29 in accordance with this order. 5. The costs of this application be reserved. 6. Liberty to apply.
CATCHWORDS:	PRACTICE – JOINDER – where application for substitution of defendant’s trustees in bankruptcy as defendants – where trustees in bankruptcy and defendant oppose substitution application – where proceeding concerns contest as to correct boundary of defendant’s property – where defendant remains legal owner with equitable interest vested in trustees in bankruptcy –…