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  • Unreported Judgment

Gilbert v Goodwin

 

[2005] QSC 84

Reported at [2005] 2 Qd R 12

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

19 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 December 2004

JUDGE:

McMurdo J

ORDERS:

  1. I give judgment for the plaintiffs against the defendants
  2. I declare that the plaintiffs are entitled to be registered as owners of an estate in fee simple in the land described in the statement of claim
  3. I further order that the defendants do all things and sign all documents as may be required for the plaintiffs to become registered as owners of those lands

CATCHWORDS:

LOCAL GOVERNMENT – POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY – PARTICULAR POWERS AND FUNCTIONS – POWERS OVER LAND – DISPOSAL – where land was sold by the local council at auction to recover unpaid rates under s 27(11)(i) of the Local Government Act 1936 – where plaintiffs sought registration as owners of land – where conflicting evidence as to the identity of the purchaser – where certificates of sale were cancelled and new certificates issued with the plaintiffs’ names substituted as purchasers – where certificates of sale were not registered – whether the certificates of sale can be challenged or must be registered under s 27(11)(v) – whether “the purchaser of such land” in s 27(11)(v) would include nominated transferees of the initial purchaser

PROCEDURE – SUPREME COURT PROCEUDRE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where no other claim to the land since the sale – whether there is any real prospect that the prima facie evidence of the certificates would be displaced by the defendant

Local Government Act 1936 (Qld), s 27(11), s 27(12), s 52(30)

Gilbert v Goodwin [2003] QSC 380, cited

Gilbert v Goodwin [2004] 2 Qd R 374, applied

Lord v Trippe (1977) 14 ALR 129, referred to

Meehan v Jones (1981-1982) 149 CLR 571, referred to

Tonelli v Komirra Pty Ltd [1972] VR 737, referred to

Re Barton ex parte Official Receiver v Barton (1983) 52 ALR 95; 76 FLR 223, discussed

Re Barton ex parte Official Receiver v Barton (1984) 58 ALR 328, discussed

COUNSEL:

J A Griffin QC with C J Carrigan for the applicants

M P Amerena for the respondents

SOLICITORS:

Short Punch & Greatorix (Bundall) for the applicants

Tony Goodwin & Company (Gladstone) for the respondents

[1] McMURDO J: In 1969 the Albert Shire Council (“the Council”) sold land near Springbrook to recover unpaid rates.  The plaintiffs claim that they were its purchasers and that they are entitled to be registered as its owners.  Alternatively, they claim to be entitled to the land based upon adverse possession.

[2] In 1969, the registered owners were Frances and John Taylor Goodwin as joint tenants.  Each of them is now deceased but their names remain as the registered owners.  The defendants are the personal representatives of the estate of Mr Goodwin who survived Mrs Goodwin.  They dispute the plaintiffs’ alternative claim based upon adverse possession.  As to the claim based upon a sale by the Council, they contend that any sale was not to the plaintiffs but to other members of the plaintiffs’ family and they indicate several  potential owners whilst not arguing for a particular one of them.  The effect of the defendants’ case is that until the true purchasers are identified and claim the land, they should be its owners.

[3] The defendants had also pleaded that the Council was not entitled to sell the land.  They said that it was incumbent upon the plaintiffs to plead and prove that there were unpaid rates, and that the Council had taken the pre-sale steps which the statute required.  On those arguments, they applied for an order to strike out so much of the statement of claim as did not relate to the claim based upon adverse possession.  Wilson J rejected those arguments and dismissed their application[1] and her judgment was upheld on appeal in Gilbert v Goodwin [2004] 2 Qd R 374. 

[4] The present question involves the interpretation of the statute under which the Council was able to sell land for unpaid rates, but it is not a question which arose in that appeal.  The plaintiffs argue that upon the proper interpretation of the statute, and on the uncontroverted facts, they are entitled to summary judgment, and in particular to a declaration that they are entitled to be registered as owners. 

The statute

[5] Section 27 of the Local Government Act 1936 provided for the levy and recovery of rates.  Subsections 27(11) and (12) provided for the sale of land for arrears of rates in these terms:

 

"11(i)Power to sell land for arrears of rates.

When in respect of any rateable land any rates accrued thereon under this Act or any of the Acts hereby repealed or any of the Acts thereby repealed have, whether before or after, or partly before and partly after, the commencement of this Act remained unpaid for three years or longer ... the Local Authority shall without further authority than this Act be empowered to sell such land.

    (ii)Notice of sale to be served.

The Local Authority, after resolving to sell any such land as aforesaid, shall forthwith cause to be served by registered post on the registered proprietor of such land, and also upon any mortgagee, encumbrancee, lessee, or trustee of such land who has previously registered himself as such in the office of the Local Authority by notice in writing sent by registered post (which registration the Local Authority shall recognise and record) a notice of sale which shall be in the following form or to the like effect, together with a statement of the provisions of the law relating to the sale of land for arrears of rates:-

...

(iii)Powers of sale.

(a)After the expiration of three months and before the expiration of six months from the date of the notice of sale, unless the rates due and in arrear in respect of the said land, and all expenses incurred by the Local Authority in connection with the proposed sale of the said land, are sooner paid, the Local Authority shall proceed with the sale of the land.

(b)The land shall be sold by public auction.

(c)Not more than fourteen days nor less than seven days before the date of the sale the notification of time and place of the sale and a full description of the land to be sold shall be advertised in some newspaper, and a notice containing particulars of the sale and a full description of the land to be sold shall be affixed on some conspicuous part of the said land and be served upon the registered proprietor by registered post as in the case of the notice of sale.

A copy of the notice served upon the registered proprietor shall be kept posted up at the office of the Local Authority for a period of not less than fourteen days immediately preceding the date of the sale.

...

(v)Issue of title on certificate of sale of land for rates.

Upon the sale of any land as aforesaid the Local Authority shall furnish to the registrar of titles under the seal of the council a certificate which shall be in the following form set out hereunder, or to the like effect certifying that the land has been sold in pursuance of this section and specifying the description of the land, the name, occupation, and address of the purchaser of such land, and the amount of consideration received for such land, and the registrar of titles shall thereupon, without any further authority than this Act, and notwithstanding any other Act to the contrary, and notwithstanding the non-production of the instrument of title, register the person named in such certificate for an estate in fee-simple in the said land free of any obligation hereinbefore referred to in paragraph (iv) of this subsection ... for the entire estate or interest of the owner in default free of any such obligation as aforesaid, and shall, without any fee in respect of such registration, issue to such person a clear title to the said land.

(12)When sales of land valid notwithstanding any irregularity.

No sale of land or of any estate or interest therein made or purporting to have been made under the provisions of this section, and no action of the Local Authority in taking possession of any land under the provisions of this section shall be rendered invalid merely by reason of any failure to comply with any of the said provisions, or of any omission, irregularity, insufficiency, or inaccuracy in the observance of any of the said provisions, whether in substance or in form; and every such sale made shall be valid and effectual for all purposes whatsoever, notwithstanding any such failure, omission, irregularity, insufficiency, or inaccuracy.

No registrar of titles and no purchaser upon any such sale shall be bound to inquire whether such sale has been properly made under the said provisions or be affected by notice, either express or implied, that there has been any such failure, omission, irregularity, insufficiency, or inaccuracy as aforesaid.

No action or other proceeding shall lie or be taken against any registrar of titles or against any such purchaser as aforesaid, or against the Crown or any Minister of the Crown, or State officer acting for the Crown, or against the assurance fund established under 'The Real Property Acts, 1861 to 1877,' or any fund administered or controlled by the State, or any such State officer in respect of any sale of land or of any estate or interest therein made or purporting to have been made under the provisions of this section, or any action of the Local Authority in taking possession or purporting to take possession of any land under the provisions of this section, or by reason of any failure to comply with any of the said provisions, or of any omission, irregularity, insufficiency, or inaccuracy in the observance of any of the said provisions, whether in substance or in form, on the part of any such purchaser, or any such Local Authority or officer thereof, or any registrar of titles or any Minister of the Crown, or any such State officer:

Provided always, that this subsection shall not be construed so as to afford any protection to any officer or person who has been guilty of fraud or wilful default in connection with any such sale or any such taking possession, or to any Local Authority which has not complied with the provisions of this section in connection with any such sale or any such taking possession."

The decision of the Court of Appeal

[6] The fact that the land had been purportedly sold by the Council was and is pleaded by the plaintiffs and admitted by the defendants.  The defendants’ arguments in the appeal were summarised by Davies JA at [10].  They were that the plaintiffs were obliged to plead that there were rates unpaid for three years or more (s 27(11)(i)), that the Council had given a notice of the proposed sale (s 27(11)(ii)) and that it had complied with the requirements of s 27(11)(iii). 

[7] This was rejected by the Court of Appeal, which held that s 27(12) effectively precluded an investigation of whether the preconditions for a valid sale under s 27 had been fulfilled, at least where, as in this case, there had been both a purported sale and a certificate of that sale furnished by the local authority.  Davies JA concluded as follows:

 

“[27]It follows from what I have said that s. 27(12) did not and did not purport to extinguish the registered title of the then existing registered proprietor.  What it intended to and did achieve was, amongst other things, to ensure that the validity of a sale purportedly made under s. 27(11) would not be invalidated and that a purchaser in such purported sale would not be affected by any breach by the local authority of any of the pre-conditions for a valid sale contained in s. 27.”

[8] The Court of Appeal did not consider the different question of whether an unregistered certificate of sale could be challenged upon the basis that, in truth, there had been no sale to the person named in the certificate as the purchaser.  That is the question of the interpretation of s 27 which now arises. 

[9] The application which Wilson J dismissed was for the striking out of part of the Statement of Claim pursuant to Uniform Civil Procedure Rules 1999 (Qld) r 191.  The order made by her Honour was simply that the defendants’ application be dismissed.  However, in dismissing the appeal from that order, the Court of Appeal made a further order in these terms:

 

“Declare that, on proof of the facts alleged in pars 1 to 7 of the Amended Statement of Claim filed 2 April 2004, the plaintiffs will be entitled to be registered as owners of an estate in fee simple in the land described in par. 2(b) of that Statement of Claim.”

Paragraphs 1 to 7 of that Statement of Claim are set out in the judgment of Davies JA at [3].  Paragraph 3 of the pleading is in these terms:

 

3.In late 1969 and in or about January 1970:–

(a) the Albert Shire Council sold the … land or purported to do so pursuant to s. 27 of the Local Government Act 1936;

(b) the Albert Shire Council sold the … land to the Plaintiffs;

(c) On or about 29 January 1970 the Albert Shire Council in accordance with s. 27 of the Local Government Act 1936, issued two Certificates gave to the Plaintiffs a Certificate of Sale of Land in respect of the sale of the … land, and in or about 1972, such Certificates were lodged with the Registrar of Titles in accordance with the provisions of s. 27(11)(v) of the said Act.”

The present arguments

[10] The defendants now argue that the plaintiffs must establish that “the Albert Shire Council sold the … land to the plaintiffs” and that the certificates of sale were issued in respect of that sale, which is a burden apparently accepted by paragraph 3 of the plaintiffs’ pleading.  The defendants rely upon the terms of the declaration made by the Court of Appeal to argue that the entitlement to registration is dependant upon proof of, amongst other things, those matters.  It is then submitted that the determination of the question of whether the plaintiffs were the purchasers requires a trial, with the result that the present application for summary judgment must be dismissed.

[11] The plaintiffs argue that the terms of the certificates of sale, in which they are named as the purchasers, provide conclusive evidence of their entitlement to be registered as owners.  They say that once the certificates were issued from the Council, there could be no challenge to the fact that the land was sold to them.

The defendants’ pleading

[12] The present Defence pleads to an earlier version of the Statement of Claim.  The terms of paragraph 3 in that Statement of Claim can be identified from the present paragraph 3 which I have set out.  Paragraph 4(a)(ii) of the Defence pleads an admission that “the Albert Shire Council purported … to sell the … land to the plaintiffs”.  Read alone, this would seem to admit the facts which the defendants now argue should be investigated at a trial.  However, the defendants have raised the presently relevant factual issue by another  part of their pleading.  In paragraph 5(b)(ii), in response to the predecessor of what is now paragraph 3(c) of the Statement of Claim, the defendants plead that they:

 

“(b) deny however that the two Certificates of Sale were furnished in accordance with s. 27(11)(v) of the Act.

 

Direct Explanation

(ii) in any event it is denied that the Certificates of Sale were furnished in accordance with s. 27(11)(v) of the Act so as to entitle the Plaintiffs to register an estate in fee simple in the Springbrook land free of any obligation referred to in s. 27(11)(iv) of the Act such that in respect of such registration the Registrar of Titles could issue to the Plaintiffs a clear title to the said land on the following grounds:

 

A. the Plaintiffs were not in fact the purchasers of the Springbrook land purportedly sold by publixauction held on the 22nd October, 1969, rather their parents, Hiram Roderick Gilbert and Clara Catherine Gilbert or alternatively Hiram Ross Gilbert, Vernee Joseph Gilbert and Hiram Roderick Gilbert trustee for Edward John Gilbert (a minor) were …”  

[13] Clearly enough the defendants have raised a case to the effect that any sale was not to, and only to, the six persons who are the plaintiffs.  If the plaintiffs were not to have judgment upon this application, the Defence would have to be amended to remove the apparent tension between the two paragraphs I have mentioned.  In that event I would be persuaded to allow the defendants to withdraw the admission in paragraph 4(a)(ii) because of what is further pleaded in paragraph 5(b)(ii).

The evidence

[14] In an affidavit sworn in August 2000[2] the first named plaintiff said that he and his parents attended the auction and that “[m]y parents were the successful bidders and the said land was purchased as a gift from my parents for me and my brothers and sister [and] … [o]n the day of the auction my father, in my presence, paid the (price) to the Council and he received a receipt from the Council.”

[15] A further affidavit by the same plaintiff sworn in November 2004 contains this evidence:

 

“4.I recall the auction which I attended in relation to the purchase of the Springbrook land.  The auction was held on or about 22 October 1969.  I attended the auction with my mother … and my father … We were the only representatives of the Gilbert family in attendance at the auction.  I recall that I was the successful bidder for the Springbrook land, which was purchased on behalf of the Gilbert family.”

[16] The defendants read an affidavit by a Mr Stuy who says that he was present at the auction and there spoke to the plaintiffs’ parents.  He swears that the plaintiffs’ father was the successful bidder and that after the auction, the plaintiffs’ parents told him that their interest in buying the land was “because they were thinking of assisting their son with a possible motel business.”

[17] There are different versions then as to who was the successful bidder.  The first named plaintiff now says that he was, and that he was acting on behalf of “the Gilbert family”.  But according to his affidavit in 2000, his parents were the bidders.  And Mr Stuy’s version is that the plaintiffs’ father was the bidder.  The identity of the bidder is important in the defendants’ argument because Davies JA said that there was a sale by the fall of the auctioneer’s hammer in acceptance of the bid, and that the act of furnishing the certificates of sale to the Registrar was an act of performance of the contract of sale.[3]

[18] The auction was held on 22 October 1969.  The Council issued a certificate of sale dated 26 November 1969.  It certified that the land had been sold to “Hiram Ross Gilbert, Vernee Joseph Gilbert and Hiram Roderick Gilbert, trustee for Edward John Gilbert (a minor)”.  Three of those persons are amongst the six plaintiffs.  The other, Hiram Roderick Gilbert, is the plaintiffs’ late father.  According to Mr Errol Gilbert’s affidavit sworn in 2000, this certificate “was subsequently cancelled by the Council as it did not contain all the names of my parent’s children who were to benefit by the purchase of the said land.”

[19] On 29 January 1970, the Council issued further certificates of sale, which are the ones now relied upon by the plaintiffs.  Those certificates show the six plaintiffs as the purchasers.  There are some typed words which have been deleted within the specification of the purchasers, and it is likely that those words referred to the plaintiffs’ father as a trustee for Edward John Gilbert.  It is unnecessary to consider that further because the certificates unambiguously represent the plaintiffs as the purchasers.  Mr Errol Gilbert was to attend to the registration of these certificates, which he attempted to do but without legal assistance.  He had them stamped in July 1971 and he lodged them in the Titles Office in February 1972.  They were the subject of a requisition which required a fresh Plan of Survey to be lodged, because of the impact of a road.  He says that for reasons which he cannot recall, “the registration process was never completed”. 

[20] In about September 1999, a real estate agent enquired about the prospect of a sale of the land, and in 2000 the plaintiff, Neroli Gilbert made enquiries at the Titles Office.  The plaintiffs then learnt that they were not the registered owners.  They engaged solicitors who lodged caveats and filed the present proceedings.

[21] It is possible that whoever did the bidding was acting as an agent for the plaintiffs.  Mr Errol Gilbert’s version that he was the bidder and that the land was purchased “on behalf of the Gilbert family” would be consistent with that.  However, it is also possible that the bidder was not then acting as an agent, or at least for each of the plaintiffs, but that the plaintiffs were subsequently nominated as the transferees.  If the difference between those possibilities was important then, again, a trial would be necessary.

[22] There is no issue as to the fact of the two certificates and of their contents.  Nor is there any issue as to the fact that the land was sold at auction in October 1969. 

The effect of the certificates of sale

[23] As I have mentioned, the effect of the plaintiffs’ argument is that the certificates of sale cannot be challenged and must be registered.  This is notwithstanding the declaration by the Court of Appeal, the terms of which might suggest a necessity to prove a sale to the plaintiffs as one of the facts alleged in paragraphs 1 to 7 of the Statement of Claim.  With respect, it does not appear from the reasons for judgment that proof of each of the matters in paragraphs 1 to 7 would be necessary.  It was reasoned that certain other and unpleaded facts, such as that rates were in arrears, did not have to be pleaded and proved.  There are some facts alleged within paragraphs 1 to 7 which could not be essential to the plaintiffs’ claimed entitlement.  For example, paragraph 6 pleads that the plaintiffs lodged their caveat and paragraph 7 that they gave notice of it to the defendants.  They may be relevant pleas to show that there is a dispute which warrants the grant of discretionary remedies, but they are not allegations of facts, the existence of which is essential to their entitlement to the land.  In my view, the declaration should not be understood as a determination that proof of each of the matters in paragraphs 1 to 7 is essential.  Read with the reasons for judgment, it must be understood to mean that there is a case sufficiently pleaded within that part of the pleading, paragraphs 1 to 7, which the defendants had sought to strike out.  The Court has declared that proof of no more was required.

[24] The plaintiffs rely upon what Davies JA said at [13] as follows:

 

“The consequence of this is that a certificate of sale pursuant to s 27(11)(v), when produced to the Registrar of Titles shall, without more, be sufficient to require the Registrar to issue to the purchaser a clear title to the land.  In other words, it is to have the same effect as the production to the Registrar of Titles of a valid transfer, signed by the registered proprietors, together with the relevant instrument of title.”

Davies JA referred to a “certificate of sale pursuant to s 27(11)(v)”.  And as I read s 27(11)(v), if it is demonstrated that what purports to be such a certificate is not a certificate furnished pursuant to the section, the Registrar is not obliged to register it.  The Registrar’s obligation is to register the person named in such certificate “… [as] the owner” but “such certificate” must be one which is authorised and required by s 27(11)(v).  So a certificate of sale which represented that certain land had been sold, when in truth other land had been the subject of the sale, would not be a certificate of sale within s 27(11)(v).  In that circumstance there would have been no sale or purported sale of the land the subject of the certificate, and if the error was demonstrated before registration of the certificate, the Registrar would be obliged not to register it.  In the same way, if there was a sale of certain land to A, but the certificate referred to a sale of that land to B, the certificate would not be one furnished pursuant to s 27 because, again, there would have been no sale or purported sale with which the certificate corresponded.  That is not to say that the Registrar would be bound to enquire in every case as to whether there was a sale represented by a certificate.  In the ordinary case the Registrar would be entitled to assume that the certificate was furnished pursuant to the section.  But it is another matter where the fact that the certificate does not correspond with the sale or purported sale is demonstrated before the certificate is registered.

[25] The plaintiffs’ submission would elevate the effect of an unregistered certificate to a registered interest.  Importantly, Davies JA said that s 27 “accepts that indefeasible title would be conferred on a purchaser only when, on receipt of a certificate of sale pursuant to s 27(11)(v), the Registrar of Titles registered the land in the purchaser’s name”,[4] and he continued:[5]

 

“It follows … that it is implicit in s 27(12) that the original proprietor, the rate payer whose land was sold, would not, after registration be entitled to claim the land under a prior certificate of title.” (My emphasis)

Section 52(30)

[26] In the Court of Appeal, the plaintiffs relied upon an alternative argument based upon s 52(30) which is in these terms:

 

“(30)Presumption against registered proprietor.

 

The production in any court of a certificate of title, memorandum of transfer, or other instrument creating an interest in land, or of a duly certified copy thereof, shall be sufficient evidence that the person named therein as registered proprietor, or as entitled to such interest, is the owner of or person entitled to an interest in such land until the contrary is proved.”

At [26] Davies JA said that if the plaintiffs were not entitled to rely upon s 27(12) because his construction of it was wrong, he would accept that the certificates of sale were “instruments creating an interest in land” within that provision so that “the onus would be on the defendants to plead and prove that the plaintiffs were not entitled to rely on the presumption contained in s 52(30).”  Accordingly a certificate of sale, being an instrument within s 52(30), needs to be treated as prima facie but not conclusive evidence of the sale which it describes.  A certificate can be challenged upon the basis that there was no sale as represented by it, either because different land was sold or because the sale was to different persons.  But because of s 52(30), the onus is upon the party challenging the validity of the certificate.  In the present matter the onus is upon the defendants to establish that the certificates do not accurately represent a sale or purported sale of this land, in that the plaintiffs were not the purchasers.

Were the plaintiffs the purchasers?

[27] According to s 27(11)(v) the certificate which the Council was authorised to issue was one in which “the purchaser of such land” was specified.  The defendants submit that a person is not “the purchaser of such land” simply by being a nominated transferee, and that the “purchaser” must have been the party with whom the Council contracted for the sale of the land.  Relying upon the statement by Davies JA that the sale was effected upon the fall of the auctioneer’s hammer, the defendants submit that the “purchaser of such land” was the successful bidder.  The argument then focuses upon the meaning of  “the purchaser” in the context of s 27(11)(v).

[28] The defendants’ submission cites several authorities for the proposition that where there is a contract for the sale of land under which the purchaser nominates another to be the transferee, the nomination does not result in a novation of the contract, so that the contract is neither enforceable by nor against the transferee.  That proposition is not in doubt.  But the present question is whether “the purchaser” in this section might include not only the party with whom the Council had contracted but that party’s nominated transferee.

[29] Even in a contract which contains no express provision for the nomination of another as the transferee, a purchaser, in the absence of special circumstances, is able to require the vendor to transfer to some third party: Lord v Trippe (1977) 14 ALR 129 at 143; Meehan v Jones (1981-1982) 149 CLR 571 at 594; Tonelli v Komirra Pty Ltd [1972] VR 737.  Apart from s 27(11), there is nothing in this Act which would affect this right of a purchaser to nominate a transferee.  And there is nothing in the context of a sale of land to recover unpaid rates which would suggest that this right should be excluded.  But the right would be excluded, if the term “the purchaser” within s 27(11)(v) is given the meaning for which the defendants argue, because a certificate of sale could not show as the purchaser a person who was a nominated transferee.  Because a registered title is acquired by registration of the certificate of sale, the land would have to be conveyed to the original purchaser rather than to a nominated transferee.  If there is an interpretation of “the purchaser” which is reasonably open and which avoids that consequence, then there is at least one reason for preferring that interpretation.  Especially where the contract is to be made by the fall of the auctioneer’s hammer, the right to nominate a transferee could be important to many bidders, and the attraction of bidders could be important for the recovery of the unpaid rates and to obtain a proper price in the interests of the owner.

[30] I do not see why the expression “the purchaser of such land” in s 27(11)(v) should be confined to the person who contracted with the local authority.  The term “purchaser” can have a different meaning according to its context.  For example, Butterworths Australian Legal Dictionary gives it this meaning: “A person who acquires an interest in property for valuable consideration by conveyance”, adding that “[t]he term “purchaser” may have a wider meaning than “buyer”: Re Barton ex parte Official Receiver v Barton (1983) 52 ALR 95; 76 FLR 223.”  In Barton’s case, the word “purchaser” was considered in the context of the then terms of s 120 of the Bankruptcy Act 1966 (Cth) which avoided certain settlements of property, other than a settlement in certain circumstances, made in favour of a “purchaser”.  In that context, Lockhart J, sitting on the Full Court, said that “the expression does not connote a purchaser in the strict sense of a contract for purchase and sale.  It is not a conveyancing term.  The phrase connotes a purchaser in the ordinary commercial sense who gives consideration which is real and substantial”.[6]  According to both the Oxford English and Macquarie Dictionaries, one meaning of the word is “one who acquires land or property in any way other than by inheritance.”

[31] The nomination of another party as the transferee of land under a contract of sale is a common practice.  At least on one ordinary meaning of the term, “the purchaser of such land” would include a party to whom the land transferred in performance of the contract of sale.  There is, in my view, no reason to read the expression as a reference only to the party with whom the local authority originally contracted.  That interpretation would achieve nothing but inconvenience and expense.

[32] Accordingly the plaintiffs are entitled to the land if they were persons nominated by whoever it was who contracted with the local authority.  By the operation of s 52(30), they are presumed to be such persons unless the contrary is proved.  The question then is whether the defendants have a real prospect of proving that the plaintiffs were not the nominated transferees.

[33] There is no evidence to suggest that the plaintiffs were not the nominated transferees.  In particular, in the quarter of a century which has passed since this sale, it appears that no one else has come forward to claim that he or she should be a transferee.  The differing versions as to who was the bidder at the auction, and as to who was said to have been the intended owner or owners, do not suggest any real prospect that the prime facie evidence of the certificates would be displaced.  I conclude that the defendants have no real prospects of discharging that onus and, accordingly, no real prospects of defending the claim.

[34] The plaintiffs will have summary judgment.  There will be a declaration that the plaintiffs are entitled to be registered as owners of an estate in fee simple in land described as:

 

Description of LotCountyParishTitle Reference

 

Lot 7 on RP 51168WardNuminbah13163106

 

Lot 8 on RP 51168WardNuminbah13163106

 

Lot 9 on RP 51168WardNuminbah13163106

 

Lot 10 on RP 51168WardNuminbah13163106

 

Lot 11 on CP WD2152WardNuminbah12940206

 

Lot 12 on CP WD2152WardNuminbah12940206

 

Lot 13 on RP 52706WardNuminbah13163107

[35] According to s 27 there should be no need for anything to be done by the defendants to enable the plaintiffs to be registered.  However, I am persuaded that the plaintiffs should have a further order that the defendants do all things and sign all documents as may be required for the plaintiffs to become registered as owners of those lands.  There will be liberty to apply.  I shall hear the parties as to costs.

Footnotes

[1] [2003] QSC 380.

[2] Filed in related proceedings numbered application 5720 of 2000.

[3] At [15].

[4] At [12].

[5] At [13].

[6] (1984) 58 ALR 328 at 344.

Close

Editorial Notes

  • Published Case Name:

    Gilbert v Goodwin

  • Shortened Case Name:

    Gilbert v Goodwin

  • Reported Citation:

    [2005] 2 Qd R 12

  • MNC:

    [2005] QSC 84

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    19 Apr 2005

Litigation History

Event Citation or File Date Notes
Primary Judgment [2005] 2 Qd R 12 19 Apr 2005 -

Appeal Status

No Status