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Oliver v Catania

 

[2018] QCA 61

COURT OF APPEAL

 

FRASER JA

GOTTERSON JA

MORRISON JA

 

 

 

Appeal No 10168 of 2017

DC No 159 of 2017

 

 

ROSWITHA MARIA OLIVER

Appellant

v

 

CHRISTOPHER ANTHONY CATANIA

First Respondent

ELIZABETH JULIE CATANIA

Second Respondent

BRISBANE

 

TUESDAY, 3 APRIL 2018

 

JUDGMENT

 

FRASER JA:  The respondents applied in the District Court for the appointment of a statutory trustee for the sale of property at Oxenford.  According to the title records, the property was co-owned by the respondents and Roswitha Marie Oliver.  Marie is spelt M-a-r-i-e.  The respondent’s originating application spelt the appellant’s name in that way.  Subsequently, the appellant filed an affidavit in the District Court proceedings in which she spelt her middle name M-a-r-i-a.  The appellant did not take any point in the District Court about these different spellings of her middle name.

On the 31st of August 2017, a judge in the District Court acceded to an application by the appellant to adjourn the proceedings on the basis that she would obtain an appraisal of the value of a property by a real estate agent.  The appellant had submitted to the District Court that it might lack jurisdiction because the value of the property exceeded $750,000 which was the monetary limit of that Court’s jurisdiction.  There were in evidence three reports by real estate agents which gave appraisals of the property at ranges below $750,000.

After the adjournment, the parties obtained a report by a real estate agent dated 5 September 2017 which appraised the property again in a range below $750,000.  During the adjourned hearing on 8 September 2017, the appellant’s husband, who was permitted to make submissions on the appellant’s behalf, agreed that the property should be sold but the appellant opposed the property being vested in statutory trustees for that purpose.  The appellant wished to obtain vacant possession of the property and sell it herself.  The judge made the order sought by the respondents.

On 3 October 2017, the appellant filed a notice of appeal against the orders made on 31st August 2017 and 8 September 2017, and also against an order for substituted service of the proceedings upon the appellant which had been made on 14 July 2017.  The various grounds stated in the notice of appeal can be reduced to two essential contentions.  The first contention is that the District Court judge had no jurisdiction to make the orders because the property was valued at more than $750,000.  That contention must fail because the only evidence before the District Court judge was that the value of the property was less than $750,000.

Mr Oliver, who was given leave to speak during this appeal on behalf of Mrs Oliver, referred to an appraisal of the property given after the orders made on 8 September which appraises the property at a figure considerably higher than $750,000.  The document is dated 11 September 2017.  It describes the range of figures it gives as: “An estimated value range –” and suggests that the owner talk to the agent for a “market appraisal”.  The appellant did not formally apply for leave to adduce this document as evidence in the appeal.  Any such application would necessarily fail because of the unconvincing nature of the evidence, the circumstance that the appellant had sufficient time before 8 September 2017 to obtain whatever evidence she wished to rely upon on the point, and the circumstances that the appellant chose to rely upon an appraisal which indicated that the value of the property was less than $750,000.  Mr Nelson, who appeared for the respondents, submitted that, in any event, the District Court judge’s decision about the value for the purposes of jurisdiction was conclusive under the provisions of s 68(4) of the District Court of Queensland Act 1967.  For the reasons I have given, it is not necessary to address that submission.

The second essential contention underlying the grounds of appeal is that the appellant’s middle name was incorrectly spelt in the originating application.  That was how her name was spelt in the contract by which she and the respondents bought the property.  The same spelling appeared on the mortgagee’s home loan statement relating to the property.  It also appeared in the registration confirmation statement for the property.  The appellant did not deny in the District Court that she was the person named in those documents and the person named in the proceedings.  Assuming that her name was misspelt in the District Court proceedings, as she argues with reference to the spelling on her driver’s licence, that is merely a misnomer of no enduring significance.  The orders made on 8 September 2017 were effective according to their terms.

Section 38 of the Property Law Act 1975 empowered the District Court on the application of the respondents to appoint trustees of a property for sale.  The right of co-owners to apply for such orders is an incident of their co-ownership of the land; see Ex parte Eimbart Pty Ltd [1982] Qd R 398.  The appellant’s submissions do not suggest that there was any arguable error in the decision to make the orders that were made.  Nor do her arguments suggest any basis for thinking that the earlier orders made in July and August 2017 should not have been made.  An appeal against those earlier orders is also out of time.

After the appellant filed her notice of appeal, she lodged a general request in the Titles Registry to change the recording of her name as co-owner of the property to accord with her contention that her middle name ends with an “a” rather than an “e.”  After she supplied supporting evidence of that contention to the Titles Office, the change was duly recorded.  In consequence, the respondents applied for and, on 17 November 2017, were granted an order in the District Court that her name in the originating proceedings be amended accordingly, as a misnomer in accordance with the Uniform Civil Procedure Rules, r 375(3).

On 8 March 2018, the appellant filed an application for leave to appeal and a notice of appeal, by which she sought orders setting aside all of the orders made in the District Court, including the orders made on 17 November 2017.  She also sought other consequential orders.  In support of the second appeal, the appellant filed an affidavit by herself on 8 March 2018 and an amended outline of argument on 29 March 2018.  These documents do not contain any substantively different contentions from the contentions upon which the earlier appeal was based.

The argument in support of them appears largely to be based upon a misapprehension that the orders made on 17 November 2017 authorising the respondents to amend their originating application to correct the spelling of the appellant’s middle name resulted in a completely new set of proceedings which then were required to be disposed of by a completely new set of orders.  In fact, the order against which relief is sought in these appeals appointing a statutory trustee for sale had been made in September 2017 and remained effective according to its tenor.

The documents filed in this Court for the appellant contain many suggestions that people have behaved inappropriately or, indeed, have committed criminal offences.  None of those suggestions is supported by credible evidence.  All of them are irrelevant to the issues for determination in this Court.  The respondents have applied for an order that particular documents be removed from the Court file and be sealed pending further order of the Court.  Such an order should be made.

For the reasons I’ve given, the orders I would make are:

  1. The appeal be dismissed.
  2. The application to the Court of Appeal filed on 8 March 2018 be refused.
  3. The document headed “Appellant New Supporting Affidavit and Appellants Amended Outline of Argument” filed on 8 March 2018 and the document headed “Appellants Amended Outline of Argument” filed on 29 March 2018 including annexures be removed from the court file, sealed and placed in an envelope marked “Not to be opened without an order of the Supreme Court”.
  4. Until further order, the transcript of the hearing in the Court of Appeal is not to be published to any person other than the parties and their legal representatives.

The respondents apply for an order that the appellant pay the respondents’ costs of the proceedings in this court and an order that those costs be assessed on the indemnity basis.  As to the first order, the respondents should be given their costs of resisting the appeal.  On the basis that the appeal failed, there is no reason to depart from the usual approach that costs follow the event of the proceeding.  As to the second order, the appellant argues that costs should be assessed on the standard basis on the footing that the appellant had a legal right to appeal from the decision in the District Court.  The appellant argues that although she raised allegations of criminality against parties who are not present in the court, and although the appellant could not prove the truth of those allegations in this court, those allegations should be able to be proved upon a subsequent police investigation.

As to the first point, it is true the appellant had a right to appeal, but the court, nevertheless, has a discretion about the basis on which costs should be assessed.  As to the second point, the court has found that the evidence put before the court did not provide a sound basis for the allegations of criminality, but in any event, that they were irrelevant to the subject matter of the appeal.  It is well established that the court may exercise a discretion to order costs to be assessed on an indemnity basis.  The discretion is often exercised in favour of such an order in cases where proceedings are brought without any sensible, arguable basis, and where the party ordered to pay the costs on an indemnity basis makes allegations of fraud or other misconduct without any real basis for making them in the evidence.  Those are the circumstances here.  Even taking into account that leeway might be afforded in some cases to unrepresented litigants, the proceedings have been so lacking in factual or legal foundation and have been rendered so unnecessarily complex by irrelevant allegations of fraud and misconduct that, in my opinion, costs ought to be ordered to be assessed on an indemnity basis.

GOTTERSON JA:  I agree.

MORRISON JA:  I also agree.

FRASER JA:  The additional order of the court is that the appellant pay the respondents’ costs of the proceedings brought by the appellant in this court to be assessed on the indemnity basis.

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Editorial Notes

  • Published Case Name:

    Oliver v Catania

  • Shortened Case Name:

    Oliver v Catania

  • MNC:

    [2018] QCA 61

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Gotterson JA, Morrison JA

  • Date:

    03 Apr 2018

Litigation History

Event Citation or File Date Notes
Primary Judgment DC159/17 (No Citation) 31 Aug 2017 Unreported (Muir DCJ).
Notice of Appeal Filed File Number: Appeal 10168/17 03 Oct 2017 -
Appeal Determined (QCA) [2018] QCA 61 03 Apr 2018 Appeal dismissed: Fraser JA, Gotterson JA, Morrison JA.

Appeal Status

{solid} Appeal Determined (QCA)