Gilbert v Goodwin[2004] QCA 119

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with the orders proposed by Davies JA and with his reasons.

DAVIES JA:

1.These proceedings

2. This is an appeal from an order made by a judge in the applications jurisdiction of the Supreme Court on 7 November 2003 dismissing an application by the defendants to strike out such of those paragraphs of the plaintiffs' amended statement of claim filed on 2 April 2003 as are not the basis for a claim for adverse possession; and for an order that the proposed paragraphs contained in the plaintiffs' proposed further amended statement of claim, then before her Honour but filed only on 2 April 2004, be disallowed. Both applications were on the grounds that those paragraphs:

"(a)disclose no reasonable cause of action;  and

(b)further or alternatively, have a tendency to prejudice or delay the fair trial of the proceedings;  and

(c)further or alternatively, are otherwise an abuse of the process of the Court."

2.The statement of claim

3. The relevant allegations in the amended statement of claim, considered by the learned primary judge but filed only on 2 April 2004, the day of hearing this appeal, are as follows:

"1.The Defendants are the personal representatives of John Taylor Goodwin, deceased, and are sued in that capacity in these proceedings.

2. At all material times prior to about 29 January 1970 John Taylor Goodwin and Frances Goodwin were registered as the owners of an Estate in Fee Simple as joint tenants in:-

[the land] …

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 Certificatesgave 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.

4.Subsequent to 29 January 1970:-

(a)the transfer of the land from John Taylor Goodwin and Frances Goodwin as joint tenants to the Plaintiffs has not been registered on the title to the … land;

…

(d)on or about 21 July 1974 Frances Goodwin died;

(e)on or about 15 April 1999 John Taylor Goodwin died.

5.On or about 24 January 2000 the Defendants, as personal representatives of John Taylor Goodwin, deceased, purported to seek a transmission by death of the title in and to the … land to themselves claiming an interest in fee simple on behalf of John Taylor Goodwin, deceased, the surviving joint tenant.

6.On or about 9 May 2000 the Plaintiffs lodged a caveat … in respect of each parcel of land comprised in the … land:-

(a)claiming an Estate in fee simple as purchaser in and to the … land;

(b)the Estate is claimed pursuant to a Certificate of Sale of Land dated 29 January 1970 between the Albert Shire Council and the Plaintiffs;

…

7.Subsequent to 9 May 2000 the Plaintiffs have:-

(a)given notice to the Defendants of the caveat and of the grounds of their claim to the … land to the Defendants;

(b)requested the Defendants to transfer the … land to the Plaintiffs;  and

(c)the Defendants have refused, neglected or otherwise failed to transfer the … land to the Plaintiffs."

4. The way in which I have set out par 2 of this amended statement of claim obscures the fact that it alleges, in effect, that between 29 January 1970 and the date of delivery of the amended statement of claim of 2 April 2003, the description and, it seems from what was said by senior counsel for the defendants, the area of the land changed. This was, we were also told by senior counsel for the defendants, because, between those dates, there was a resumption of part of the land for road purposes. However that does not affect the right of the plaintiffs to the remedy which they seek which is, principally, a declaration that they are entitled to be registered as owners of an estate in fee simple in the land described in par 2(b), the way in which the balance of the land, after such resumption, is now described.

3.The questions in issue

5. The central question is whether, on the correct construction of s 27 of the Local Government Act 1936, on proof of the facts which I have set out, the plaintiffs would be entitled to be registered as owners of an estate in fee simple in the land.  The defendants both before the learned primary judge and in this Court asserted that there was another question which depended in some way on indefeasibility of title.  I shall discuss this assertion in the course of discussing the central question.

6. The plaintiffs also relied on s 52(30) of the Act for their entitlement to a declaration in the terms I have indicated, on the facts which I have set out. The learned primary judge did not find it necessary to deal with that contention. This contention then became the subject of a notice of contention in this Court by the plaintiffs. However, like the learned primary judge, I do not find it necessary to decide the consequence of the application of s 52(30) although I shall say something about it.

Section 27 of the Local Government Act

7. Whether the plaintiffs are entitled to the relief which they claim depends primarily on the meaning of s 27 of the Local Government Act, in particular s 27(12).  Section 27, in the subsections prior to subsection (11), provided for the levy, payment and recoverability of rates, objections and appeals, the recoverability of rates notwithstanding objection or appeal, discount on rates for prompt payment, liability for interest on arrears of rates, remission of rates in certain circumstances and other matters not relevant to this appeal.

8. Subsection (11) then provides for the sale of land for arrears of rates. The following are the provisions in subsection (11) which are most relevant to this appeal:

"(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.

1. 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.
2. The land shall be sold by public auction.
3. 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."

9. Subsection (12) is then in the following terms:

"(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."

4.How the central question arises

10. The defendants contended and contend that the plaintiffs were obliged to plead facts showing that the land had rates accrued thereon which had remained unpaid for three years or longer (subsection (11)(i)), that the council had given notice in compliance with subsection (11)(ii) and that it had sold in compliance with subsection (11)(iii).  The plaintiffs' primary response was that they did not have to prove and consequently allege those facts because they were entitled to rely on subsection (12).^[1]  Whether that is correct is a question of interpretation of that subsection.

The meaning of s 27(12)

11. The defendants submit in this Court that s 27(12) should be read with the balance of s 27. That much may be accepted. They then submit that s 27 sets out a legislative scheme intended to be complementary to and not inconsistent with the Torrens Title register. I would also accept that. They then make the following submission:

"In those circumstances, it is a most unlikely construction that Parliament intended s. 27(12) of its own force to confer statutory indefeasibility only upon irregular sales under s. 27 of the Act."

12. I have considerable difficulty in understanding this submission. On its face, s 27(12) has nothing to do with indefeasibility.  On the contrary, it 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.  But what it does say, clearly enough, is that no sale by a local authority for arrears of rates shall be rendered invalid by reason of any failure by the local authority to comply with any of the earlier provisions in s 27 or by reason of any omission, irregularity, insufficiency or inaccuracy in the observance of any such provisions;  and that no Registrar of Titles or purchaser under any such sale shall be bound to inquire whether such sale has been properly made.

13. 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. It follows from this 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.^[2]  But that is because, otherwise, the protection afforded to a sale and to the purchaser by the statutory scheme in s 27 would be rendered nugatory.

14. The defendants contend that the second paragraph of s 27(12) "protects the validity of the registration achieved by the local authority furnishing a certificate of sale to the Registrar of Titles pursuant to s. 27(11)(v)".  That is not what it says.  It says that neither the Registrar of Titles nor a purchaser upon any such sale is bound to inquire as to whether any of the conditions precedent to a valid sale have been complied with.  In protecting the Registrar of Titles or the Crown or any State administered fund from suit in respect of any sale purporting to have been made under s 27(11) the third paragraph of s 27(12) plainly extends to a time after registration.  But it follows from what the second paragraph says, that the protection of the sale, the purchaser and the Registrar, arises upon sale.  None of this, however, is inconsistent with the indefeasibility provisions in those Acts.

15. By "sale" in subsection (12) the legislature means, I think, the making of a contract of sale by fall of the auctioneer's hammer: see s 27(11)(iii), s 27(11)(v). In this case, it seems, the council, upon sale, furnished the certificates of sale, not to the Registrar of Titles, but to the plaintiffs and the plaintiffs furnished them to the Registrar only in 1972 about two years after they had been executed and presumably furnished to them by the council. However I do not think that anything turns on this. No rights of innocent third parties intervened during that period or since. The act of furnishing of the certificates of sale to the Registrar was, as appears from s 27(11)(v), an act of performance of the contract of sale which could as well be performed, as it was in this case, by the council furnishing them to the purchasers who, in turn, furnished them to the Registrar.

16. Understandably the defendants relied, in support of their submissions, on the decision of Demack J in International Gems Pty Ltd v Livingstone Shire Council.^[3]  The relevant subsections of s 27 of the Local Government Act considered in that case appear to have been in the same terms as those relevant here.  It seems that a council had purportedly sold the plaintiff's land for arrears of rates.  As the learned trial judge found, the time, expiration of which gave rise to the council's right to sell, had not expired before it took steps to sell.  However it was not stated in his Honour's reasons whether the sale had been performed by the council furnishing to the Registrar of Titles, or even to the purchaser, a certificate of sale in the terms prescribed by subsection (11)(v).  His Honour held that s 27(12) offered no protection to the sale and granted an injunction restraining the council and the purchaser pursuant to such sale from proceeding with it.

17. In my respectful opinion the decision in that case can be correct only if, because the sale had not been performed by the furnishing of a certificate of sale, the sale did not receive the protection of s 27(12). There is no reason to think, on a plain reading of s 27(12), that the sale did not receive the protection of that section upon its making. But it is unnecessary to decide that question. What is plain is that the absence of such a certificate was not the ratio of his Honour's decision.

18. After setting out s 27(12) his Honour said that the proviso to that subsection was meaningless. On the contrary, it seems to me, its meaning is reasonably plain. As already stated, the intention of the subsection as a whole is to ensure that neither a purported sale, made in the way I have described, nor the purchaser under such purported sale nor the Registrar of Titles would thereafter be affected by any failure of the council to comply with any condition precedent to such purported sale. And the purpose of the proviso was to make it clear that nothing in the earlier paragraphs of the subsection should be construed to protect a local authority from any liability in respect of its failure to comply with any conditions precedent to a valid sale. It also ensured that any person guilty of fraud was liable in respect of any sale so procured.

19. His Honour then said that s 27(12), seen in the historical context that it replaced s 249A of the Local Authorities Act 1902, ought to be construed, subject to the proviso, as dealing with the problem that In re Church's Caveat^[4] presented, namely a misdescription in the notice of sale.  But in my respectful opinion s 27(12) was not intended to have so restricted an operation.  It was not expressly so limited;  and there was no reason for implying any such limitation.  On the contrary, to do so would have been inconsistent with the plain intention of the legislature.

20. In International Gems Pty Ltd, subject to the possibility that no certificate of sale had been furnished and the protection of s 27(12) commenced only after it had been, the consequence of a sale by the local authority before the time for payment of rates had expired was no more than that, notwithstanding that the sale remained valid and the purchaser entitled to require registration of the certificate of sale, the council remained liable in damages to the registered proprietor in respect of its failure to comply with a condition precedent to the exercise by it of its power of sale.  It should not have resulted in an injunction restraining the council and the purchaser from proceeding with the sale.  For those reasons, although International Gems Pty Ltd may possibly have been correctly decided, for a reason not adverted to by his Honour, the reasoning of the learned judge was, in my respectful opinion, wrong.

21. On the other hand, in Hillebrand and Another v Penrith City Council and Others^[5] Hodgson CJ in Equity adopted a similar construction of s 602 and s 604 of the Local Government Act 1919 (NSW) to that which I have given s 27(11) and s 27(12).  Section 604(4) was in the following terms:

"(4)Neither the purchaser nor the Registrar-General nor any official to whom a transfer made by the council and purporting to be made under this Act is produced for registration shall be concerned to inquire whether the provisions of this Act in respect of the sale or transfer have been complied with or otherwise into the regularity or validity of the sale or transfer."

22. His Honour held that, because the word "purporting" was used in that subsection (cf s 27(12)) the requirement that there be a valid such sale under s 602 was excluded by clear words;^[6]  and "validity" in that subsection was plainly apt to cover all possible defects, including, as in that case, a mistake by the local authority as to whether the rates were in fact unpaid.^[7]  In my opinion it therefore supports the construction of s 27(12) which I have reached.

23. It is true, as the learned primary judge has said, that s 604(4) had some differences in wording from s 27(12) but the section seems plainly to have had the same purpose and was given a construction similar to that which I have reached. And the defendants' attempt in this Court to distinguish that case on the basis that there the subject land was old system land is without foundation. The point in both cases is that the validity of a sale (in s 27(12)) or transfer (in s 604(4)) under such provisions is not challengeable as against the purchaser or the Registrar notwithstanding a failure by the local authority to comply with any conditions precedent to such sale or transfer.^[8]

24. I should also add that, contrary to the defendants' contention, the decision of the Full Court in In re Church's Caveat^[9] does not in any way assist the defendants' argument.  The sections there under consideration, s 243 to s 249 of the Local Authorities Act 1902, an Act which preceded the Local Government Act, permitted a bailiff of the District Court to sell land for unpaid rates and for the Registrar of that court to execute a proper transfer of the land to the purchaser after compliance with a certain procedure.  However, unlike s 27(12), those sections did not expressly state the consequences of non-compliance with conditions precedent to the execution of that transfer.  The case is consequently of no relevance in construing subsection (12) which, on its face, provides for such consequences.  It is probably correct, as Demack J said in International Gems Pty Ltd, that s 249A of that Act, introduced in a 1905 amendment and which contained provisions somewhat similar to those in subsection (12), was introduced as a response to the Full Court decision in In re Church's Caveat.

Section 52(30)

25. Section 52 of the Act provided for legal proceedings. Subsection (30) is in the following 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."

26. If my construction of s 27(12) is correct it was unnecessary for the plaintiffs to rely also on s 52(30). However I would agree with the plaintiffs' contention that the certificates of sale were, like memoranda of transfer, "instruments creating an interest in land" within the meaning of that provision. Indeed the certificates themselves recite that the respondents are entitled to the interest which they claim. So even if the plaintiffs were not entitled to rely on s 27(12) because my construction of it is wrong, it follows from the combination of s 27(11)(v) and s 52(30) 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).

Conclusion

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.

28. A consequence of this is that, on proof by them of the facts alleged in their latest amended statement of claim the plaintiffs will be entitled to registration as owners of the land. In my opinion this Court should make a declaration to that effect.

Orders

1. Dismiss the appeal.

2. 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.

3. The appellants pay the respondents' costs of this appeal.

29. PHILIPPIDES J:  I agree with the reasons for judgment of Davies JA and with the orders proposed.