White v Tomasel

Case [2004] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION:

White v Tomasel & Anor [2004] QCA 89

PARTIES:

PAUL WILLIAM WHITE
(applicant/appellant)
v
RICKY BRUNO TOMASEL
HEIDI RENEE TOMASEL
(respondents/respondents)

FILE NO/S:

Appeal No 4281 of 2003
DC No 125 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

2 April 2004

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2004

JUDGES:

Davies and Williams JJA and McMurdo J
Separate reasons for judgment of each member of the Court, Williams JA and McMurdo J concurring as to the orders made, Davies JA dissenting

ORDERS:

1.    Appeal allowed to the extent of setting aside the orders of 31 March 2003 and 12 May 2003

2.    Respondents are to pay the costs of the applications heard on 31 March 2003 and 12 May 2003 and also the costs of the appeal

3.    The making of further consequential orders by this court is adjourned until after a trial determining the agent’s authority to sell the property on 16 January 2003 for $182,000

4.    The application filed 19 March 2003 is to be treated as a claim brought by the respondents seeking orders establishing the existence of the contract on which they rely and specific performance of it

5.    The respondents are to file and serve a statement of claim in that proceeding within 28 days of the order of this court and thereafter steps are to be taken in accordance with the Uniform Civil Procedure Rules 1999 (Qld)

CATCHWORDS:

CONVEYANCING – RELATIONSHIP OF VENDOR AND PURCHASER – VENDOR AND PURCHASER SUMMONS: SUMMARY PROCEDURE – where auctioneer signed contract of sale of land as agent for appellant – where appellant denies he gave authority to auctioneer to sell land at that price – where respondents applied for orders directing appellant to comply with obligations under contract – where learned primary judge made order under s 70 Property Law Act 1974 (Qld) – whether issue was a question affecting existence or validity of contract – whether learned primary judge was entitled to make orders that he did

CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – INDEFEASIBILITY OF TITLE: CERTIFICATE AS EVIDENCE – EXCEPTIONS – GENERALLY – where contract was ordered to be executed by Registrar on behalf of appellant – where respondents have registered title of land – whether indefeasibility of title prevents a court from ordering reconveyance of land to appellant

Land Title Act 1994 (Qld), s 184, s 185
Property Law Act 1974 (Qld), s 70
Uniform Civil Procedure Rules 1999 (Qld), r 296

Bahr v Nicolay [No 2] (1988) 164 CLR 604, considered
Barnes v Addy (1874) LR 9 Ch App 244, considered
Barry v Heider (1914) 19 CLR 197, considered
Boulas v Angelopoulos (1991) 5 BPR 11,477, cited
Breskvar v Wall (1971) 126 CLR 376, considered
C N and N A Davies Ltd v Laughton [1997] 3 NZLR 705, considered
Commissioner for Railways (New South Wales) v Cavanough (1935) 53 CLR…

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Details
AGLC
White v Tomasel [2004] QCA 89
Case
[2004] QCA 89
Decision Date

CaseChat Overview and Summary

The appeal in White v Tomasel concerned a dispute over the sale and purchase of a property in Queensland. The appellant, White, had signed a contract of sale with the respondents, the Tomasel, through an auctioneer acting as an agent. White denied giving the auctioneer the authority to sell the property at the agreed price. The Tomasel applied for orders to compel White to honour the obligations under the contract. The learned primary judge ordered the contract to be executed by the Registrar on behalf of White and that the property be transferred to the Tomasel. The key issues before the court were whether the question of the auctioneer’s authority affected the existence or validity of the contract and whether the learned primary judge had the authority to make the orders he did.

The court examined the provisions of the Property Law Act 1974 (Qld) and found that the issue of the auctioneer’s authority was indeed a question affecting the existence or validity of the contract. It was held that the learned primary judge did not have the jurisdiction to make the orders he did, as the issue was not one that could be resolved through summary procedure. The court further noted that the indefeasibility of title under the Torrens system does not prevent a court from ordering a reconveyance of land in certain circumstances, such as when the registration was obtained through fraud or other equitable exceptions.

The appeal was allowed to the extent of setting aside the orders of 31 March 2003 and 12 May 2003. The respondents were directed to pay the costs of the applications and the appeal. The making of further consequential orders was adjourned until after a trial to determine the auctioneer's authority to sell the property. The application filed on 19 March 2003 was to be treated as a claim by the respondents seeking orders establishing the existence of the contract and specific performance of it. The respondents were required to file and serve a statement of claim within 28 days of the court's order, after which proceedings would follow the Uniform Civil Procedure Rules 1999 (Qld).

Orders

Orders of the court

1. Appeal allowed to the extent of setting aside the orders of 31 March 2003 and 12 May 2003

2. Respondents are to pay the costs of the applications heard on 31 March 2003 and 12 May 2003 and also the costs of the appeal

3. The making of further consequential orders by this court is adjourned until after a trial determining the agent’s authority to sell the property on 16 January 2003 for $182,000

4. The application filed 19 March 2003 is to be treated as a claim brought by the respondents seeking orders establishing the existence of the contract on which they rely and specific performance of it

5. The respondents are to file and serve a statement of claim in that proceeding within 28 days of the order of this court and thereafter steps are to be taken in accordance with the Uniform Civil Procedure Rules 1999 (Qld)

Background

Background to the litigation

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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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