Theodore v Mistford P/L - [2004] QCA 90

SUPREME COURT OF QUEENSLAND

CITATION:

Theodore v Mistford P/L & Anor [2004] QCA 90

PARTIES:

MARIE MARGARET THEODORE
(plaintiff/appellant)
v
MISTFORD PTY LTD ACN 050 406 650
(first defendant/first respondent)
MAX EGERTON VINES AND VALERIE LYNETTE VINES

(second defendants/second respondents)

FILE NO/S:

Appeal No 11225 of 2002

DC No 147 of 1998

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal – Further Order

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

Judgment delivered 24 December 2003
Further Order delivered 2 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2003

JUDGES:

McMurdo P, Jerrard JA and Philippides J

Joint reasons for judgment of McMurdo P and Philippides J; separate reasons of Jerrard JA dissenting in part

ORDERS:

1. Allow the appeal to the limited extent of setting aside the orders made at first instance on the counterclaim.

2. The Court declares that:

(a)Glen Theodore, with the authorisation of the appellant, deposited a certificate of title to the land described as Lot 65 on RP 817375, County of Canning, Parish of Mooloolah contained in Title Reference 18689094 ("the land") with the solicitors to the respondents and thereby secured by equitable mortgage the amount owing under the contract of sale for the purchase by Mobile Lab Pty Ltd ACN 074 680 194 of the business of Air Monitoring Services together with certain plant and equipment from the respondents pursuant to the contract of sale dated 22 July 1996.

(b)The appellant is liable to pay ASIC and the second respondents the sum of $48,100.88, together with interest at five per cent from 1 January 1998 until the date of this order.

3. The appellant is to pay the second respondents' costs, and upon any successful reinstatement of its company registration under s 601AH Corporations Act 2001 the first respondent's costs, of and incidental to the counterclaim together with reserved costs and excepting costs previously ordered in the proceedings to be assessed on the standard basis.

4. The appellant is to pay two-thirds of the second respondents' costs, and upon any successful reinstatement of its company registration under s 601AH Corporations Act 2001 two-thirds of the first respondent's costs, of this appeal, together with reserved costs, if any, to be assessed on the standard basis.

5. Liberty to apply as to the form of these orders within one month of their delivery with any supporting submissions to be in double spacing and not to exceed 2 A4 pages rendered in type no smaller than 1.8 mm (10 point) font on seven days notice to the other side.

CATCHWORDS:

TAXES AND DUTIES – STAMP DUTIES – UNSTAMPED AND IMPROPERLY STAMPED DOCUMENTS – QUEENSLAND – whether contention that equitable mortgage could not be relied on because the provisions of the Stamp Act had not been complied with could be entertained by Court in submissions as to costs

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where offer of settlement made – whether costs should be ordered on…

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 Theodore v Mistford P/L

Details

AGLC: Theodore v Mistford P/L [2004] QCA 90
Case: [2004] QCA 90
Decision Date: 24 December 2003

CaseChat Overview and Summary

In the case of Theodore v Mistford P/L, the primary dispute was over the validity of an equitable mortgage and the associated stamp duty implications, as well as the allocation of costs in the proceedings. The case was heard in the Queensland Court of Appeal. The appellant, Theodore, contested the counterclaim brought by the respondents, Mistford P/L and others, which included claims regarding stamp duty and the validity of the equitable mortgage. The respondents argued that the equitable mortgage was invalid due to non-compliance with stamp duty provisions, and that Theodore should bear the full costs of the proceedings.

The legal issues before the court encompassed whether the argument regarding non-compliance with the Stamp Act could be entertained, the appropriateness of ordering costs on an indemnity basis, and the distribution of costs between the parties. Specifically, the court needed to determine if the argument about the equitable mortgage's invalidity due to stamp duty non-compliance was valid, whether costs should be ordered on an indemnity basis given an offer of settlement, and how costs should be apportioned given the mixed outcomes of the appeal and the counterclaim. Additionally, the court had to address the issue of costs owing to a company that had been deregistered during the proceedings.

The court held that the contention regarding stamp duty non-compliance was valid and could be considered in submissions concerning costs. It also found that the offer of settlement justified ordering costs on an indemnity basis. Regarding the distribution of costs, the court ruled that Theodore should bear the full costs of the counterclaim but only two-thirds of the costs of the appeal. The court further determined that costs owing to the first respondent, who had been deregistered, should be awarded upon any successful reinstatement of its company registration. The final orders included setting aside the orders made at first instance on the counterclaim, declaring the existence and terms of the equitable mortgage, and specifying the allocation of costs between the parties, both for the counterclaim and the appeal.

Orders

Orders of the court

1. Allow the appeal to the limited extent of setting aside the orders made at first instance on the counterclaim.

2. The Court declares that:

(a)Glen Theodore, with the authorisation of the appellant, deposited a certificate of title to the land described as Lot 65 on RP 817375, County of Canning, Parish of Mooloolah contained in Title Reference 18689094 ("the land") with the solicitors to the respondents and thereby secured by equitable mortgage the amount owing under the contract of sale for the purchase by Mobile Lab Pty Ltd ACN 074 680 194 of the business of Air Monitoring Services together with certain plant and equipment from the respondents pursuant to the contract of sale dated 22 July 1996.

(b)The appellant is liable to pay ASIC and the second respondents the sum of $48,100.88, together with interest at five per cent from 1 January 1998 until the date of this order.

3. The appellant is to pay the second respondents' costs, and upon any successful reinstatement of its company registration under s 601AH Corporations Act 2001 the first respondent's costs, of and incidental to the counterclaim together with reserved costs and excepting costs previously ordered in the proceedings to be assessed on the standard basis.

4. The appellant is to pay two-thirds of the second respondents' costs, and upon any successful reinstatement of its company registration under s 601AH Corporations Act 2001 two-thirds of the first respondent's costs, of this appeal, together with reserved costs, if any, to be assessed on the standard basis.

5. Liberty to apply as to the form of these orders within one month of their delivery with any supporting submissions to be in double spacing and not to exceed 2 A4 pages rendered in type no smaller than 1.8 mm (10 point) font on seven days notice to the other side.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Theodore v Mistford P/L & Anor [2004] QCA 90
PARTIES:	MARIE MARGARET THEODORE (plaintiff/appellant) v MISTFORD PTY LTD ACN 050 406 650 (first defendant/first respondent) MAX EGERTON VINES AND VALERIE LYNETTE VINES (second defendants/second respondents)
FILE NO/S:	Appeal No 11225 of 2002 DC No 147 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal – Further Order
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	Judgment delivered 24 December 2003 Further Order delivered 2 April 2004
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2003
JUDGES:	McMurdo P, Jerrard JA and Philippides J Joint reasons for judgment of McMurdo P and Philippides J; separate reasons of Jerrard JA dissenting in part
ORDERS:	1. Allow the appeal to the limited extent of setting aside the orders made at first instance on the counterclaim. 2. The Court declares that: (a)Glen Theodore, with the authorisation of the appellant, deposited a certificate of title to the land described as Lot 65 on RP 817375, County of Canning, Parish of Mooloolah contained in Title Reference 18689094 ("the land") with the solicitors to the respondents and thereby secured by equitable mortgage the amount owing under the contract of sale for the purchase by Mobile Lab Pty Ltd ACN 074 680 194 of the business of Air Monitoring Services together with certain plant and equipment from the respondents pursuant to the contract of sale dated 22 July 1996. (b)The appellant is liable to pay ASIC and the second respondents the sum of $48,100.88, together with interest at five per cent from 1 January 1998 until the date of this order. 3. The appellant is to pay the second respondents' costs, and upon any successful reinstatement of its company registration under s 601AH Corporations Act 2001 the first respondent's costs, of and incidental to the counterclaim together with reserved costs and excepting costs previously ordered in the proceedings to be assessed on the standard basis. 4. The appellant is to pay two-thirds of the second respondents' costs, and upon any successful reinstatement of its company registration under s 601AH Corporations Act 2001 two-thirds of the first respondent's costs, of this appeal, together with reserved costs, if any, to be assessed on the standard basis. 5. Liberty to apply as to the form of these orders within one month of their delivery with any supporting submissions to be in double spacing and not to exceed 2 A4 pages rendered in type no smaller than 1.8 mm (10 point) font on seven days notice to the other side.
CATCHWORDS:	TAXES AND DUTIES – STAMP DUTIES – UNSTAMPED AND IMPROPERLY STAMPED DOCUMENTS – QUEENSLAND – whether contention that equitable mortgage could not be relied on because the provisions of the Stamp Act had not been complied with could be entertained by Court in submissions as to costs PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON INDEMNITY BASIS – where offer of settlement made – whether costs should be ordered on…