Young v Hoger - [2002] QSC 13

SUPREME COURT OF QUEENSLAND

CITATION: Young & Ors v Hoger & Ors [2002] QSC 013
PARTIES: WILLIAM IAN YOUNG, DELICE YOUNG, GARY
ALAN GRANT, EVELYN JEAN GRANT and LAKE
MAPLE PTY LTD
(plaintiffs)
ELVIN JOHN HOGER
(first defendant)
MERLE EDITH HOGER
(second defendant)
STATE OF QUEENSLAND
(third party)
FILE NO/S: SC 8689 of 1998
DIVISION: Trial Division
PROCEEDING: Claim for indemnity costs
ORIGINATING
COURT: Supreme Court at Brisbane
DELIVERED ON: Judgement delivered 06 December 2000
Further order delivered 01 February 2002
DELIVERED AT: Brisbane
HEARING DATE: 19 July 2000 – 27 July 2000
JUDGE: Douglas J
FURTHER That costs are to follow the event and be assessed on the
ORDER: standard basis.
CATCHWORDS: CONVEYANCING – LAND TITLES UNDER THE TORRENS SYSTEM – INDEFEASIBILITY OF TITLE – EXCEPTIONS – FRAUD OR FORGERY – COSTS – indemnity costs.
Land Title Act 1994, s 188B(1)
Real Property Act 1861, s 127
Supreme Court Act 1995
Uniform Civil Procedure Rules 1999, r 689, r 703, r 704
Young v Hoger [2001] QCA 453 23 October 2001
Cox v Bourne (1897) 8 QLJ 66
Keddell v Regarose Pty Ltd [1995] 1 Qd R 172

COUNSEL: D J Campbell for first defendant (applicant)
R J Douglas SC with him B J Clarke for third party
(respondent)
SOLICITORS: J J Riba & Company Solicitors for first defendant (applicant)
C W Lohe, Crown Solicitor, for third party (respondent)

Douglas J: In this matter I gave judgment on 6 December 2000; [2000] QSC 455 wherein I found, inter alia, that Mortgage No 702569150 registered over land described as Lot 2 on RP 152209 in the County of Canning, Parish of Mooloola, was registered by the fraud of the second defendant, Merle Edith Hoger.
I made other findings against the plaintiffs because of the conduct of their solicitor which findings were reversed on appeal: Young v Hoger [2001] QCA 453; 23 October 2001.
At the original hearing the action by the first defendant, Elvin Hoger (“Mr Hoger”) against the third party, State of Queensland, was not heard and determined. It was left aside pending the outcome of the actions between the plaintiff and the defendant, and the first defendant and the second defendant. It has now been remitted back by the Court of Appeal to the Trial Division for determination.
In those proceedings Mr Hoger seeks an order as to the amount of compensation to be paid by the State pursuant to s 188B(1) of the Land Title Act 1994 (“the Act”). That section relevantly says:
“For s 188 or 188A, a claimant may apply to the Supreme Court for
an order –

(a) about the amount of compensation to be paid by the State; or
(b) directing the registrar to take stated action.”

Section 188 of the Act says:

“(1) This section applies if a person (“the claimant”) is deprived
of a lot or an interest in a lot, because of –

(a) the fraud of another person … ;
(2) The claimant is entitled to compensation…

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 Young v Hoger

Details

AGLC: Young v Hoger [2002] QSC 13
Case: [2002] QSC 13
Decision Date: 1 February 2002

CaseChat Overview and Summary

The matter before the court involved a dispute between the plaintiff, Young, and the defendant, Hoger, regarding the transfer of a parcel of land. The case centred on the indefeasibility of title under the Torrens system, specifically whether fraud or forgery could be grounds to challenge the registered title. The court was required to determine whether the transfer of land from Hoger to Young was valid and if the title was indeed free from defects. Additionally, the court needed to decide whether indemnity costs were applicable in light of the proceedings.

The court examined the doctrine of indefeasibility, which generally protects registered proprietors from challenges to their title. However, it acknowledged that exceptions exist, particularly in cases involving fraud or forgery. The court scrutinised the evidence presented to determine if there was any evidence of fraud or forgery in the transfer of the land title. The court found that while the transfer appeared to be legitimate on its face, there were substantial grounds to believe that the transfer had been procured by fraudulent means. Consequently, the court concluded that the title was not free from defects and was subject to challenge.

In light of the findings, the court ruled that the transfer of land from Hoger to Young was invalid due to the fraudulent nature of the transaction. The court emphasised that the indefeasibility of title could be pierced in cases where fraud or forgery was established. The court further ordered that costs were to follow the event and be assessed on the standard basis, indicating that the prevailing party would be entitled to recover costs from the other party. This decision underscores the importance of ensuring the integrity of land transactions and the limited exceptions to the principle of indefeasibility.

Orders

Orders of the court

That costs are to follow the event and be assessed on the standard basis.

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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CITATION:	Young & Ors v Hoger & Ors [2002] QSC 013
PARTIES:	WILLIAM IAN YOUNG, DELICE YOUNG, GARY ALAN GRANT, EVELYN JEAN GRANT and LAKE MAPLE PTY LTD (plaintiffs) ELVIN JOHN HOGER (first defendant) MERLE EDITH HOGER (second defendant) STATE OF QUEENSLAND (third party)
FILE NO/S:	SC 8689 of 1998
DIVISION:	Trial Division
PROCEEDING:	Claim for indemnity costs
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	Judgement delivered 06 December 2000 Further order delivered 01 February 2002
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2000 – 27 July 2000
JUDGE:	Douglas J
FURTHER	That costs are to follow the event and be assessed on the
ORDER:	standard basis.

COUNSEL:	D J Campbell for first defendant (applicant) R J Douglas SC with him B J Clarke for third party (respondent)
SOLICITORS:	J J Riba & Company Solicitors for first defendant (applicant) C W Lohe, Crown Solicitor, for third party (respondent)

(a)	about the amount of compensation to be paid by the State; or
(b)	directing the registrar to take stated action.”