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Young v Hoger

Young v Hoger

Case [2001] QCA 453 23 October 2001

Fraud or Forgery

Indefeasibility of Title

Appeal

Limitation Periods

Admissibility of Evidence

Property Law

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION: Young & Ors v Hoger & Ors [2001] QCA 453

PARTIES: WILLIAM IAN YOUNG
DELICE YOUNG
GARY ALAN GRANT
EVELYN JEAN GRANT
LAKE MAPLE PTY LTD ACN 010 800 281
(plaintiffs/appellants)
v
ELVIN JOHN HOGER
(first defendant/first respondent)
MERLE EDITH HOGER
(second defendant/second respondent)
STATE OF QUEENSLAND
(third party/third respondent)

FILE NO/S: Appeal No 175 of 2001
SC No 8689 of 1998

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 23 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 23 August 2001

JUDGES: McMurdo P, Davies JA and Holmes J
Judgment of the Court

ORDER:
1.    Appeal allowed.

2.    Set aside orders made below.

3.    Order that the appellants recover possession of the land situate at Lot 2 on Registered Plan 152209 County of Canning Parish of Mooloolah and being the whole of the land contained in Title Reference 15519089.

4.    Order that the respondents pay the appellants' costs of the trial of this action and of this appeal.

CATCHWORDS:
CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - INDEFEASIBILITY OF TITLE: CERTIFICATE AS EVIDENCE - EXCEPTIONS - FRAUD OR FORGERY - husband and wife registered owners as joint tenants of the subject property - wife and daughter complicit in forging security documents and procuring mortgage - appellant's title as mortgagees indefeasible unless "there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest" - whether subject mortgage was procured by fraud in which a solicitor acting for the mortgagors was involved

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCES WITH JUDGE'S FINDINGS OF FACT - IN GENERAL - whether finding of fraud against the solicitor on the basis of wilful blindness was sustainable - whether finding of actual dishonesty sustainable - where trial judge formed an adverse view of the solicitor's credit and at an early stage expressed the view that the solicitor had committed a gross dereliction of duty - failure to give sufficient weight to the context in which the acts or omissions of the solicitor took place

Land Titles Act 1994 (Qld), s 184(3)(b)

Assets Co Ltd v Mere Roihi [1905] AC 176, cited
Butler v Fairclough (1917) 23 CLR 78, cited
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, considered

Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188, cited

COUNSEL: J A Griffin QC with B G Cronin for appellants
D J Campbell for first respondent
No appearance for second respondent
R J Douglas SC with B J Clark for third respondent

SOLICITORS: Walsh & Partners (Gold Coast) for appellants
J J Riba & Company (Maroochydore) for first respondent
No appearance for second respondent
C W Lohe, Crown Solicitor for third respondent

THE COURT: This is an appeal from a judgment in the Trial Division of…

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 [2001] QCA 453
Case: [2001] QCA 453
Decision Date: 23 October 2001

CaseChat Overview and Summary

The appeal before the court involved the Youngs, appellants, and the Hogers, respondents, with a dispute over the ownership of a property. The Youngs claimed they were the rightful owners of the property, having purchased it under a mortgage. The Hogers argued that they were the legitimate owners of the property. The court was required to determine whether the Youngs had acquired the property through fraud. This involved examining whether there had been fraud by the registered proprietor, the Hogers, or by someone else involved in the transaction.

The primary issue was whether the solicitor who acted for the Hogers was guilty of fraud or wilful blindness. The court considered the solicitor's involvement in the transaction, where the Hogers had provided forged documents to secure the mortgage. The court also had to determine whether the trial judge's findings of fact, particularly regarding the solicitor's conduct, were sustainable. The court concluded that the trial judge had erred by not adequately considering the context in which the solicitor's actions occurred and by forming an adverse view of the solicitor's credibility too early in the proceedings.

The court allowed the appeal and set aside the orders made by the lower court. The court ordered that the Youngs recover possession of the property and that the Hogers pay the Youngs' costs for the trial and appeal. The decision highlights the importance of considering the context of a solicitor's actions and the need for a fair assessment of credibility when determining questions of fraud in property transactions.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders made below.

3. Order that the appellants recover possession of the land situate at Lot 2 on Registered Plan 152209 County of Canning Parish of Mooloolah and being the whole of the land contained in Title Reference 15519089.

4. Order that the respondents pay the appellants' costs of the trial of this action and of this appeal.

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

Young v Hoger [2001] QCA 453

Most Recent Citation

Waller v Davies HC Auckland Civ-2003-404-6843 [2005] NZHC 1236

Cases citing this decision · 11 of 11 shown

Partram Developments Pty Ltd v The Registrar of Cooperative Housing Societies
[2024] QSC 191 Para 13

…n other respects but that, in either case, it must amount to actual dishonesty.’[33] [30] Rodgers v ANZ Banking Group [2005] QSC 365 at [26]. [31][2001] QCA 453. [32] Assets Co Ltd v Mere Roihi [1905] AC 176 at 210. [33]See also Butler v Fairclough (1917) 23 CLR 78 at 90, 97; Pyramid Building Society (in liq) v S…
Trouton v Trouton
[2022] QSC 210

…hite v Tomasel & Anor [2004] QCA 89 Williams v Turner [2009] 1 Qd R 296 Young v Hoger [2001] QCA 453 COUNSEL: A J H Morris KC, with I Erskine for the plaintiff; G Allan for the defendants SOLICITORS: Creagh Weightman Lawyers for the plaintiff; Walt Allan for the defendants…
Australian and New Zealand Bank Group Ltd v Beamond
[2017] QSC 208 Para 9

…o. 2 ) (1988) 164 CLR 604 at 614, 631-632; Davis v Williams [2003] NSWCA 371; Russo v Bendigo Bank Limited [1999] 3 VR 376; Young v Hoger [2001] QCA 453.…
J Wright Enterprises Pty Ltd (In Liquidation) v Port Ballidu Pty Ltd
[2010] QSC 213 Para 1

…ty or that he actually had a suspicion that the mortgagor’s signature on the mortgage had been forged and abstained from further enquiry.[79] [77][2001] QCA 453. [78]Ibid at [33]. [79]See also Royalene Pty Ltd v Registrar of Titles [2008] QSC 64.…
Royalene Pty Ltd v Registrar of Titles
[2008] QSC 64

…QSC 401 Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188 Young v Hoger [2001] QCA 453 Land Title Act 1994 (Qld) COUNSEL: B Marais for the plaintiff B Clarke SC with D Pyle for the first defendant and first third party SOLICITORS: Queensland Law Group for the plaintiff Crown law for the…
Hilton v Gray
[2007] QSC 401 Para 1

…The failure to talk to the justice of the peace is not evidence of fraud; see Young v Hoger [2001] QCA 453 at [26]. Their other conduct did not amount to fraud either for the reasons expressed by me earlier. The test is described in the similar decision of Young v Hoger at [11] (footnotes omitted):…
Royalene Pty Ltd v Registrar of Titles
[2007] QSC 59 Para 1

…Young v Hoger [2001] QCA 453 provides an example of such a case. It was an appeal against a trial judge’s finding of fraud against a solicitor in circumstances where there had been failure to require compliance with safeguards that may have revealed the fraudulent nature of the transaction. The judgment of the Co…
Rodgers v ANZ Banking Group Ltd
[2005] QSC 365 Para 1

…must amount to actual dishonesty.’[16] In The Ampthill Peerage Case[17] the fraud was defined as ‘conscious and deliberate dishonesty.’ [14] [2001] QCA 453 at [11]. [15] The Court citing Assets Co Ltd v Mere Roihi [1905] AC 176 at 210. [16] The Court also referred to Butler v Fairclough (1917) 23 CLR 78 at 90 an…
Waller v Davies HC Auckland Civ-2003-404-6843
[2005] NZHC 1236

…h’s citation of the decision of the Court of Appeal of that state allowing an appeal in terms unusually critical of the trial Judge ( Young v Hoger [2001] QCA 453 at paras 14 & 15). Mr Tingey pre-empted Mr Galbraith’s reliance upon Australian authority by a submission that Courts in that jurisdiction have been mo…
Young v Hoger
[2002] QSC 13 Para 2

…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.…
Port of Brisbane Corporation v ANZ Securities Ltd (No 2)
[2001] QSC 403 Para 1

…Young v Hoger [2001] QCA 453; Assets Co Ltd v Mere Roihi [1905] AC 176 at 210; Butler v Fairclough (1917) 23 CLR 78 at 90, 97; Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1998] 1 VR 188 at 192 -195…

View all 11 citing cases →

Cases cited in this decision · 4 of 4 shown

Bank of South Australia Ltd v Ferguson
[1998] HCA 12 Para 1

…[1905] AC 176 at 210. [4]See also Butler v Fairclough (1917) 23 CLR 78 at 90, 97, Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188 at 192 - 195.…
Butler v Fairclough
[1917] HCA 9 Para 1

…nt to actual dishonesty.[4] [2] Land Title Act 1994 s 184(3)(b). [3] Assets Co Ltd v Mere Roihi [1905] AC 176 at 210. [4]See also Butler v Fairclough (1917) 23 CLR 78 at 90, 97, Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188 at 192 - 195.…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd
[1992] HCA 66 Para 1

…n other respects also, but submitted that there was no basis for a finding of actual dishonesty. [7] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.…
[1905] AC 176
[1905] AC 176 Para 1

…other respects but that, in either case, it must amount to actual dishonesty.[4] [2] Land Title Act 1994 s 184(3)(b). [3] Assets Co Ltd v Mere Roihi [1905] AC 176 at 210. [4]See also Butler v Fairclough (1917) 23 CLR 78 at 90, 97, Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188 at 19…

Legislation cited in this decision · 2

Land Title Act 1994 (Qld)
184(3)(b) 1 mention (from Para 1)
Land Titles Act 1994 (Qld)
184(3)(b) 1 mention

CITATION:	Young & Ors v Hoger & Ors [2001] QCA 453
PARTIES:	WILLIAM IAN YOUNG DELICE YOUNG GARY ALAN GRANT EVELYN JEAN GRANT LAKE MAPLE PTY LTD ACN 010 800 281 (plaintiffs/appellants) v ELVIN JOHN HOGER (first defendant/first respondent) MERLE EDITH HOGER (second defendant/second respondent) STATE OF QUEENSLAND (third party/third respondent)
FILE NO/S:	Appeal No 175 of 2001 SC No 8689 of 1998
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2001
JUDGES:	McMurdo P, Davies JA and Holmes J Judgment of the Court
ORDER:	1. Appeal allowed. 2. Set aside orders made below. 3. Order that the appellants recover possession of the land situate at Lot 2 on Registered Plan 152209 County of Canning Parish of Mooloolah and being the whole of the land contained in Title Reference 15519089. 4. Order that the respondents pay the appellants' costs of the trial of this action and of this appeal.
CATCHWORDS:	CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - INDEFEASIBILITY OF TITLE: CERTIFICATE AS EVIDENCE - EXCEPTIONS - FRAUD OR FORGERY - husband and wife registered owners as joint tenants of the subject property - wife and daughter complicit in forging security documents and procuring mortgage - appellant's title as mortgagees indefeasible unless "there has been fraud by the registered proprietor, whether or not there has been fraud by a person from or through whom the registered proprietor has derived the registered interest" - whether subject mortgage was procured by fraud in which a solicitor acting for the mortgagors was involved APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCES WITH JUDGE'S FINDINGS OF FACT - IN GENERAL - whether finding of fraud against the solicitor on the basis of wilful blindness was sustainable - whether finding of actual dishonesty sustainable - where trial judge formed an adverse view of the solicitor's credit and at an early stage expressed the view that the solicitor had committed a gross dereliction of duty - failure to give sufficient weight to the context in which the acts or omissions of the solicitor took place Land Titles Act 1994 (Qld), s 184(3)(b) Assets Co Ltd v Mere Roihi [1905] AC 176, cited Butler v Fairclough (1917) 23 CLR 78, cited Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, considered Pyramid Building Society (in liq) v Scorpion Hotels Pty Ltd [1988] 1 VR 188, cited
COUNSEL:	J A Griffin QC with B G Cronin for appellants D J Campbell for first respondent No appearance for second respondent R J Douglas SC with B J Clark for third respondent
SOLICITORS:	Walsh & Partners (Gold Coast) for appellants J J Riba & Company (Maroochydore) for first respondent No appearance for second respondent C W Lohe, Crown Solicitor for third respondent