Sweeney v Johnston - [2007] QSC 35

SUPREME COURT OF QUEENSLAND

CITATION:

Sweeney & Anor as t’tees of the Bankrupt Estate of Johnston v Johnston [2007] QSC 035

PARTIES:

PAUL DESMOND SWEENEY AND TERRY GRANT VAN DER VELDE IN THEIR CAPACITY AS TRUSTEES OF THE BANKRUPT ESTATE OF LORIS HALLOWEEN JOHNSTON
(applicant)
v
MARTIN JAMES JOHNSTON
(respondent)

FILE NO/S:

BS11228/06

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

4, 18, and 31 January 2007

JUDGE:

Muir J

ORDER:

[1] It is declared that no agreement for lease of Lot 7 on Registered Plan 19427 in the County of Stanley, Parish of Enoggera, was entered into between the registered proprietor of such land Loris Johnston and the respondent Martin Johnston prior to 18 May 2005 and the instruments between Loris Johnston and the respondent Martin Johnston, which or copies of which are exhibits MJ2 and MJ3 to exhibit 14 in these proceedings, do not limit or otherwise affect the rights or interests of the applicants in or in relation to the said land.

[2] Order that the respondent pay the applicants’ costs of and incidental to the proceedings, including reserved costs, if any.

CATCHWORDS:

LANDLORD AND TENANT – AGREEMENTS FOR LEASE – GENERALLY – where the applicants were trustees in bankruptcy of the bankrupt’s estate – where the respondent claimed to have an agreement for lease over land registered in the bankrupt’s name – where the applicants sought a declaration that the purported lease was not bona fide or binding on them – whether the purported agreement for lease was entered into prior to bankruptcy

LANDLORD AND TENANT – AGREEMENTS FOR LEASE – GENERALLY – where the applicants were trustees in bankruptcy of the bankrupt’s estate – where the respondent claimed to have an agreement for lease over land registered in the bankrupt’s name – where the applicants sought a declaration that the alleged agreement for lease had been surrendered or abandoned – whether the lease was surrendered or abandoned

Residential Services (Accreditation) Act 2002 (Qld)

Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 VR 319, applied
Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17, applied

ADVOCATES:

T Sullivan, counsel, for the applicants
B Peters, solicitor, for the respondent

SOLICITORS:

Deacons for the applicant
Douglas Law for the respondent

The application

The applicant trustees in bankruptcy of Loris Johnston seek a declaration that a purported agreement for lease dated 1 August 2004, under which Mrs Johnston purportedly leased to her son, Martin Johnston, the respondent, land registered in her name is not bona fide or binding on the applicants. Alternatively, the applicants seek a declaration that the alleged agreement for lease has been surrendered or abandoned.

Relevant history

Mrs Johnston became bankrupt on 18 May 2005. She and the respondent resided together at “Hazelwood”, as the boarding house on the land was known. The respondent was intimately involved in the boarding house business run by his…

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: [2007] QSC 35
Decision Date: 7 February 2007

CaseChat Overview and Summary

Sweeney v Johnston is a case before the court where Loris Johnston's trustees in bankruptcy, the applicants, sought a declaration regarding an alleged agreement for lease over land registered in Loris Johnston's name. The respondent, Martin Johnston, claimed to have an agreement for lease with Loris Johnston over the specified land. The applicants argued that the purported lease was not bona fide or binding on them and sought a declaration that the agreement for lease was either not entered into before bankruptcy or had been surrendered or abandoned.

The central legal issues revolved around whether the purported agreement for lease was entered into prior to Loris Johnston's bankruptcy and if the lease had been surrendered or abandoned. The applicants contended that if the agreement was indeed made before the bankruptcy, it was not bona fide and did not bind the estate. They also argued that any lease had been effectively surrendered or abandoned.

The court examined the evidence and concluded that no agreement for lease was entered into between Loris Johnston and Martin Johnston prior to the bankruptcy date of 18 May 2005. Furthermore, the instruments between the parties, which were exhibits in the proceedings, did not limit or affect the applicants' rights or interests in the land. The court thus granted the declarations sought by the applicants and ordered the respondent to pay the applicants' costs of the proceedings, including any reserved costs.

Orders

Orders of the court

[1] It is declared that no agreement for lease of Lot 7 on Registered Plan 19427 in the County of Stanley, Parish of Enoggera, was entered into between the registered proprietor of such land Loris Johnston and the respondent Martin Johnston prior to 18 May 2005 and the instruments between Loris Johnston and the respondent Martin Johnston, which or copies of which are exhibits MJ2 and MJ3 to exhibit 14 in these proceedings, do not limit or otherwise affect the rights or interests of the applicants in or in relation to the said land.

[2] Order that the respondent pay the applicants’ costs of and incidental to the proceedings, including reserved costs, if any.

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:	Sweeney & Anor as t’tees of the Bankrupt Estate of Johnston v Johnston [2007] QSC 035
PARTIES:	PAUL DESMOND SWEENEY AND TERRY GRANT VAN DER VELDE IN THEIR CAPACITY AS TRUSTEES OF THE BANKRUPT ESTATE OF LORIS HALLOWEEN JOHNSTON (applicant) v MARTIN JAMES JOHNSTON (respondent)
FILE NO/S:	BS11228/06
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	4, 18, and 31 January 2007
JUDGE:	Muir J
ORDER:	[1] It is declared that no agreement for lease of Lot 7 on Registered Plan 19427 in the County of Stanley, Parish of Enoggera, was entered into between the registered proprietor of such land Loris Johnston and the respondent Martin Johnston prior to 18 May 2005 and the instruments between Loris Johnston and the respondent Martin Johnston, which or copies of which are exhibits MJ2 and MJ3 to exhibit 14 in these proceedings, do not limit or otherwise affect the rights or interests of the applicants in or in relation to the said land. [2] Order that the respondent pay the applicants’ costs of and incidental to the proceedings, including reserved costs, if any.
CATCHWORDS:	LANDLORD AND TENANT – AGREEMENTS FOR LEASE – GENERALLY – where the applicants were trustees in bankruptcy of the bankrupt’s estate – where the respondent claimed to have an agreement for lease over land registered in the bankrupt’s name – where the applicants sought a declaration that the purported lease was not bona fide or binding on them – whether the purported agreement for lease was entered into prior to bankruptcy LANDLORD AND TENANT – AGREEMENTS FOR LEASE – GENERALLY – where the applicants were trustees in bankruptcy of the bankrupt’s estate – where the respondent claimed to have an agreement for lease over land registered in the bankrupt’s name – where the applicants sought a declaration that the alleged agreement for lease had been surrendered or abandoned – whether the lease was surrendered or abandoned Residential Services (Accreditation) Act 2002 (Qld) Apriaden Pty Ltd v Seacrest Pty Ltd (2005) 12 VR 319, applied Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17, applied
ADVOCATES:	T Sullivan, counsel, for the applicants B Peters, solicitor, for the respondent
SOLICITORS:	Deacons for the applicant Douglas Law for the respondent