Weber v Australian Securities and Investments Commission

[2004] QSC 136

SUPREME COURT OF QUEENSLAND

CITATION:

Weber v ASIC & Ors [2004] QSC 136

PARTIES:

FRITZ HEINZ WEBER
(Applicant)
v
AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
(First Respondent)
JOHNSTONE SHIRE COUNCIL
(Second Respondent)
AA REALTY AUCTIONEERS
(Third Respondent0

FILE NO/S:

S552 of 2003

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

6 May 2004

DELIVERED AT:

Cairns

HEARING DATE:

2 February 2004

JUDGE:

Jones J

ORDER:

1.        Application is dismissed

2.       Adjourn the consideration of the question of costs allowing the parties 14 days within which to make written submissions on that issue.

CATCHWORDS:

EQUITY – INJUNCTIONS - INTERLOCUTORY INJUNCTIONS - SERIOUS QUESTION TO BE TRIED – BALANCE OF CONVENIENCE –Interim injunction sought by applicant to restrain respondent from selling land in order to recoup unpaid council rates  - where applicant alleged interest in the land has been fraudulently taken away - whether the balance of convenience favour granting of an injunction.

Corporations Act 2000

Australian Course Grains v Barley Marketing Board (1982) 57 ALJR 425 applied

COUNSEL:

Applicant in Person

Mr. J Sheridan for the Second Respondent

No Appearances for or on behalf of the First and Third Respondents

SOLICITORS:

Marino Morrow Lawyers for the Second Respondent

1. This is an application for an interim injunction to restrain the second respondent, Johnstone Shire Council (“the Council”) by its servants or agents from selling by auction certain land described as Lots 3, 4 and 5 on GTP 70423, County of Nares, Parish of Hull (title references 21505230, 21505231 and 21505232 respectively).  The first respondent is the owner by default of the subject lands pursuant to the provisions of s 601AD(2) of the Corporations Act 2000.  The third respondent is the company retained by the Council to carry out the auction.

1. On 31 July 2003 the council resolved to sell the lands for unpaid rates as follows:-

Lot No.	1996/1997 to 1998/1999	1999/2000	2000/2001	2001/2002	2002/2003	Interest	Total
3	1655.94	667.00	667.00	686.00	713.50	1654.71	6044.15
4	1655.93	667.00	667.00	686.00	713.50	1654.71	6044.14
5	1655.92	667.00	667.00	686.00	713.50	1654.71	6044.13[1]

[1]See affidavits of Peter Bruce Roberts filed by leave on 28/11/2003

Each allotment has an unimproved value for rating purposes of $8,000.00.

1. Prior to 1996 the registered owner and therefore the entity responsible to pay the rates was Mission Developments Pty Ltd.  This company was de-registered on 8 December 1997 following its being wound-up pursuant to s 445D of the Corporations Law 1991.  The effective date for the winding-up was 2 July 1996.  Consequent upon the winding-up and pursuant to s 601AD(2) of the Corporations Act all the former assets of the company are now the property of the first respondent, Australian Securities and Investments Commission (“ASIC”).  ASIC has expressed its intention to take no further action with respect to the land  meaning thereby that it will take no steps towards the sale of the land nor to pay rates.  The respondent Council remains obligated to account to ASIC for any surpluses arising from the proposed sale of the land.

1. The first question is whether the applicant has any standing at law to invoke the jurisdiction of the court to seek an injunction of this kind.  In this regard the applicant has supplemented the original application filed on 26 November 2003 with a further application filed on 5 January 2004.  The combination of applications sets out a wide variety of claims against a number of persons.  The applications were supported by a large volume of documents to which I have had regard.  The applicant’s claims are not formulated in any precise or readily understandable form.  In broad terms, the applicant claims that he and his late wife Willie Weber (who died on 15 November 2001) were defrauded by various persons, but principally by Stephen Heinz Weber and Geoffrey William Glew.  They were at the time acting as the Secretary of a body corporate, “The Proprietors of GTP 70423”.  There is alleged to have been a transfer of the applicant’s assets to various entities without his knowledge or consent.  He wishes to litigate these issues which he asserts touches upon his right to continue to occupy the land.

1. But the true nature of the alleged fraudulent and/or criminal behaviour cannot be explored in these proceedings because the right of any person to restrain the sale of land for arrears of rates is very limited. Regard must first be had to Chapter 14 of the Local Government Act 1993 (“the Act”) which prescribes the rights and obligations of the council in respect of levying and recovering rates. As well, it prescribes the rights of any person to challenge the Council’s power to sell land for any unpaid rates. Firstly, it must be observed that the obligation to pay rates falls upon the owner for the time being of the land, and that presently means ASIC. (See s 1010(1) of the Act.)

1. Secondly, by s 1040 the Council is, after making a resolution to do so, authorised to sell the land to recover rates that remain unpaid for periods specified in s 1039.  Then s 1041 requires notice to be given to –

(a)        The owner;

(b)        Each encumbrancee, lessee or trustee who has given written notice to the Council of the person’s interest.

1. The Council has, in fact, complied with those requirements imposed on it and it is thus authorised to proceed with the sale in accordance with the provisions of the Act.

1. The one statutory prohibition to the sale arises in s 1040(2) which provides:-

“(2) However, the local government may not sell land if the liability of the owner of the land to pay the overdue rate is the subject of a proceeding pending in a court.”

There is no such proceeding pending in this or any other court concerning the liability of the owner to pay rates.

1. Proceedings about disputed ownership or about the existence of trusts or other claims to land do not fall within this prohibition.  The council is entitled to have the rates paid regardless of any such dispute.  This is the difficulty which confronts the applicant.  He does not assert that the owner has no liability to pay rates, nor does ASIC, the present owner by default, raise any such dispute.

1. The thrust of the applicant’s complaint appears to be that he has an interest in land which has, by the fraudulent conduct of others, been taken from him and his late wife.  Such a claim would have to be determined in other proceedings.  But whatever that interest might be, it does not, on the material before me, challenge the owner’s liability to pay the rates already levied.

1. To be successful in the application before me, the applicant would have to show that there is a serious question to be tried and that the balance of convenience necessitates the injunction being granted whilst that question is tried.  Australian Course Grains v Barley Marketing Board[2] .  Whilst therefore the applicant may have a genuine grievance against other persons whose names are referred to in the material, none of those claims go to the issue of the obligation to pay rates.  Consequently, there is no serious question to be tried, the determination of which could justify delaying the sale of the land.  Accordingly, I would dismiss the application.

   [2](1982) 57 ALJR 425

Orders

1. 1.          Application is dismissed

2.          Adjourn the consideration of the question of costs allowing the parties 14 days within which to make written submissions on that issue.