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Uhlmann v Harris

Uhlmann v Harris

Case [2017] QSC 309 15 December 2017

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SUPREME COURT OF QUEENSLAND

CITATION:

Uhlmann & Anor v Harris [2017] QSC 309

PARTIES:

PHILLIP PAUL UHLMANN AND REBECCA SUZANNE UHLMANN

(applicants)

v
ARABELLA KATRINA DOUGLAS HARRIS

(respondent)

FILE NO/S:

BS No 11725 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 December 2017

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. the applicant give notice under s 78B(1) of the Judiciary Act 1903 (Cth) to the Attorneys-General for the Commonwealth and the States.

2. the further hearing of the application for an order for recovery of possession of the land located at 30A Bambery St Fingal in the State of New South Wales is adjourned to a date to be fixed.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where a contract of sale of land and a related residential tenancy agreement existed between the applicants and respondent – where the applicants applied for a declaration that the contract is terminated and for an order that the applicants recover possession of the land from the respondent – where the court declared that the applicants had terminated the contract of sale – where section 119 of the Residential Tenancies Act 2010 (NSW) provided that a landlord or former landlord could not commence an action for recovery of possession of residential property in the Supreme Court of New South Wales, the District Court or the Local Court – where the applicants and respondent are residents of different states – whether a court exercising the diversity jurisdiction of the High Court, invested in the court by section 39(2) of the Judiciary Act 1903 (Cth) is able to make an order for recovery of possession of land in New South Wales comprising residential premises subject to a residential tenancy agreement

Constitution (Cth), s 109, s 118
Judiciary Act 1903 (Cth), s 38, s 39, s 78B, s 79

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4
Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), s 9
Residential Tenancies Act 2010 (NSW)
Service and Execution of Process Act 1992 (Cth)

British South Africa Co v Companhia de Moçambique [1893] AC 602, discussed
Burns v Corbett (2017) 343 ALR 690, cited
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited Couzens v Negri [1981] VR 824, cited
Elddin v Hamed (No 2) [2015] NSWSC 654, cited
Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, cited
Lawrence v Gunner [2015] NSWSC 944, cited
Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, cited
PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, cited
R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, cited
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, cited
Rizeq…

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 Uhlmann v Harris

Details

AGLC: Uhlmann v Harris [2017] QSC 309
Case: [2017] QSC 309
Decision Date: 15 December 2017

CaseChat Overview and Summary

The matter of Uhlmann v Harris came before the High Court of Australia. The applicants, the Uhlmanns, and the respondent, Mr Harris, had a contract of sale for a property in Fingal, New South Wales, along with a related residential tenancy agreement. The Uhlmanns sought a declaration that the contract was terminated and an order for them to recover possession of the land from Harris. The court found that the applicants had indeed terminated the contract of sale. A significant legal question arose concerning the ability of a court exercising the diversity jurisdiction of the High Court, under section 39(2) of the Judiciary Act 1903 (Cth), to issue an order for the recovery of possession of the land in New South Wales, which was subject to a residential tenancy agreement. This was particularly pertinent given that section 119 of the Residential Tenancies Act 2010 (NSW) precluded a landlord or former landlord from initiating an action for recovery of possession in certain NSW courts.

The High Court considered the implications of section 119 of the Residential Tenancies Act 2010 (NSW) and the jurisdiction of the High Court under section 39(2) of the Judiciary Act 1903 (Cth). The court noted that while the High Court has the authority to hear diversity cases, the specific issue of residential tenancy recovery orders in NSW was complicated by the state legislation. The court concluded that the High Court could not make such an order directly, as it would contravene the provisions of the NSW Act. Instead, the court ordered that the applicants must notify the Attorneys-General for the Commonwealth and the States under section 78B(1) of the Judiciary Act 1903 (Cth) before any further action could be taken. Consequently, the further hearing of the application for an order for recovery of possession was adjourned.

The court's order was twofold. Firstly, the applicants were required to give notice under section 78B(1) of the Judiciary Act 1903 (Cth) to the relevant Attorneys-General. Secondly, the further hearing of the application for an order for recovery of possession of the land was adjourned to a date to be fixed. This decision underscored the complex interplay between federal and state jurisdictions, particularly in the context of residential tenancy agreements and property law.

Orders

Orders of the court

The order of the court is that:

1. the applicant give notice under s 78B(1) of the Judiciary Act 1903 (Cth) to the Attorneys-General for the Commonwealth and the States.

2. the further hearing of the application for an order for recovery of possession of the land located at 30A Bambery St Fingal in the State of New South Wales is adjourned to a date to be fixed.

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.

Citations

AGLC Citation

Uhlmann v Harris [2017] QSC 309

Most Recent Citation

Uhlmann v Harris (No 2) [2018] QSC 28

Cases citing this decision · 2 of 2 shown

Attorney-General for the State of Queensland v Kynuna
[2020] QSC 205 Para 15

…of a further supervision order, and that finding must be made on “acceptable cogent evidence” and “to a high degree of probability”.[23] [21][2017] QSC 309. [22][2019] QSC 2. [23]Which is a statutory version of the test in Briginshaw v Briginshaw (1938) 60 CLR 336; see also Neat Holdings v Karajan Holdings (1992…
Uhlmann v Harris (No 2)
[2018] QSC 28 Para 1

…In Uhlmann & Anor v Harris [2017] QSC 309, I considered the applicants’ application for an order for possession of land located at 30A Bambery Street, Fingal Head, New South Wales, in circumstances where the applicants reside in the southern part of the City of the Gold Coast in this State and the respondent resi…

View all 2 citing cases →

Cases cited in this decision · 15 of 15 shown

Burns v Corbett & Ors; Burns v Gaynor & Ors; Attorney General for NSW v Burns & Ors; Attorney General for NSW v Burns & Ors; State of NSW v Burns & Ors
[2017] HCATrans 249 Para 21

…as that expression is used in the relevant cases. It says nothing about the law to be applied by this court in the exercise of that jurisdiction. [3] Burns v Corbett (2017) 343 ALR 690, 698 [28].…
Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) (No 2)
[2017] FCA 759 Para 33

…ner [2015] NSWSC 944, [517]. [11] Lawrence v Gunner [2015] NSWSC 944; Elddin v Hamed (No 2) [2015] NSWSC 654; cf Uren v Commonwealth of Australia [2017] FCA 759.…
Rizeq v Western Australia
[2017] HCA 23 Para 23

…the text of the statutory law of the relevant State is applied, as federal law, as the law to decide the matter.[4] [4] Rizeq v Western Australia (2017) 344 ALR 421, 440 [81].…
Burns v Corbett; Gaynor v Burns
[2017] NSWCA 3 Para 21

…on is used in the relevant cases. It says nothing about the law to be applied by this court in the exercise of that jurisdiction. [3] Burns v Corbett (2017) 343 ALR 690, 698 [28].…
PT Bayan Resources TBK v BCBC Singapore Pte Ltd
[2015] HCA 36 Para 18

…the jurisdiction of this court, except as provided in s 39(2) of the Judiciary Act 1903 (Cth).[1] [1] PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, 21 [53].…
Lawrence v Gunner; Gunner v Lawrence
[2015] NSWSC 944 Para 33

…courts if it is raised.[10] Some exceptions to its operation have been found to exist,[11] but none that is relevant here. [10] Lawrence v Gunner [2015] NSWSC 944, [517]. [11] Lawrence v Gunner [2015] NSWSC 944; Elddin v Hamed (No 2) [2015] NSWSC 654; cf Uren v Commonwealth of Australia [2017] FCA 759.…
Elddin v Hamed (No 2)
[2015] NSWSC 654 Para 33

…1] but none that is relevant here. [10] Lawrence v Gunner [2015] NSWSC 944, [517]. [11] Lawrence v Gunner [2015] NSWSC 944; Elddin v Hamed (No 2) [2015] NSWSC 654; cf Uren v Commonwealth of Australia [2017] FCA 759.…
Starr-Diamond v Diamond (No 3)
[2013] NSWSC 351 Para 30

…der its operation at all, because the cross-vesting legislation supersedes any remaining operation of the rule.[9] [9] Starr-Diamond v Diamond (No 3) [2013] NSWSC 351, [6].…
Regie Nationale Des Usines Renault SA v Zhang
[2002] HCA 10 Para 29

…ommonwealth Trading Bank of Australia (1972) 20 FLR 30, 42; cf Couzens v Negri [1981] VR 824. [8] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, 520 [76]. As well, the rule has been repealed by statute in NSW, for example: Jurisdiction of Courts (Foreign Land) Act 1989 (NSW), s 3.…
Inglis v Commonwealth Trading Bank of Australia
[1972] HCA 74 Para 29

…02. [6] Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, 497, 501-502 and 510-511. [7] Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, 42; cf Couzens v Negri [1981] VR 824. [8] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, 520 [76]. As well, the rule has been repealed…
R v Kirby; ex parte Boilermakers' Society of Australia
[1956] HCA 10 Para 37

…nsistency under s 109 of the Constitution.[14] [12] Burns v Corbett (2017) 343 ALR 690. [13] R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. [14] Burns v Corbett (2017) 343 ALR 690, 709-710 [78]-[79] and 713 [95]-[97].…
Potter v Broken Hill Proprietary Co Ltd
[1906] HCA 88 Para 29

…rn status of the rule in the Australian Federation is a matter of some doubt.[8] [5] [1893] AC 602. [6] Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, 497, 501-502 and 510-511. [7] Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, 42; cf Couzens v Negri [1981] VR 824. [8] Regie Nationale…
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation
[1981] HCA 26 Para 39

…because the proceeding is a matter of exclusive federal jurisdiction.[15] [15] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304-305, 311, 321 and 338-339.…
[1893] AC 602
[1893] AC 602 Para 29

…he possession of land outside the jurisdiction.[7] The modern status of the rule in the Australian Federation is a matter of some doubt.[8] [5] [1893] AC 602. [6] Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, 497, 501-502 and 510-511. [7] Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR…
Pty Ltd v Federal Commissioner of Taxation
381 US 479 Para 39

…n of land subject to a residential tenancy because the proceeding is a matter of exclusive federal jurisdiction.[15] [15] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 304-305, 311, 321 and 338-339.…

Legislation cited in this decision · 6

Judiciary Act 1903 (Cth)
38 2 mentions (from Para 18)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
4 2 mentions (from Para 26)
Jurisdiction of Courts (Foreign Land) Act 1989 (NSW)
3 1 mention (from Para 29)
Residential Tenancies Act 2010 (NSW)
1 mention (from Para 13)
Service and Execution of Process Act 1901 (Cth)
1 mention (from Para 20)
Service and Execution of Process Act 1992 (Cth)
1 mention (from Para 20)

CITATION:	Uhlmann & Anor v Harris [2017] QSC 309
PARTIES:	PHILLIP PAUL UHLMANN AND REBECCA SUZANNE UHLMANN (applicants) v ARABELLA KATRINA DOUGLAS HARRIS (respondent)
FILE NO/S:	BS No 11725 of 2017
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	8 December 2017
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. the applicant give notice under s 78B(1) of the Judiciary Act 1903 (Cth) to the Attorneys-General for the Commonwealth and the States. 2. the further hearing of the application for an order for recovery of possession of the land located at 30A Bambery St Fingal in the State of New South Wales is adjourned to a date to be fixed.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where a contract of sale of land and a related residential tenancy agreement existed between the applicants and respondent – where the applicants applied for a declaration that the contract is terminated and for an order that the applicants recover possession of the land from the respondent – where the court declared that the applicants had terminated the contract of sale – where section 119 of the Residential Tenancies Act 2010 (NSW) provided that a landlord or former landlord could not commence an action for recovery of possession of residential property in the Supreme Court of New South Wales, the District Court or the Local Court – where the applicants and respondent are residents of different states – whether a court exercising the diversity jurisdiction of the High Court, invested in the court by section 39(2) of the Judiciary Act 1903 (Cth) is able to make an order for recovery of possession of land in New South Wales comprising residential premises subject to a residential tenancy agreement Constitution (Cth), s 109, s 118 Judiciary Act 1903 (Cth), s 38, s 39, s 78B, s 79 Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4 Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), s 9 Residential Tenancies Act 2010 (NSW) Service and Execution of Process Act 1992 (Cth) British South Africa Co v Companhia de Moçambique [1893] AC 602, discussed Burns v Corbett (2017) 343 ALR 690, cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited Couzens v Negri [1981] VR 824, cited Elddin v Hamed (No 2) [2015] NSWSC 654, cited Inglis v Commonwealth Trading Bank of Australia (1972) 20 FLR 30, cited Lawrence v Gunner [2015] NSWSC 944, cited Potter v Broken Hill Proprietary Co Ltd (1906) 3 CLR 479, cited PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1, cited R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, cited Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, cited Rizeq…