Re an application by Hines[1998] QDC 383

CIVIL JURISDICTION

JUDGE ROBERTSON

IN THE MATTER of the District Court Act 1967 (as amended)

and

IN THE MATTER of an application by GREGORY RONALD HINES

IPSWICH

DATE 23/06/98

JUDGMENT

HIS HONOUR: The applicant Gregory Ronald Hines seeks a final injunction. The applicant is a beneficiary in his mother's Will which is dated 13 March 1998.

Relevantly, clause 3 of the Will provides:

Clause 4 of the Will relevantly provides for the distribution of the residuary estate and the applicant is a residuary beneficiary as to part thereof.

Mrs Hines died on 22 March 1998. The application is supported by a number of affidavits which establish inter alia:

The application was returnable on 11 June 1998 and the respondent appeared with his solicitor and after preliminary argument an interim injunction was granted until 4.30 p.m. on 16 June 1998 in terms of the application. The application was adjourned to 8.30 a.m. on 16 June 1998 to enable the respondent to file an affidavit.

On 16 June 1998 the respondent appeared represented by counsel who sought leave to read and file an affidavit by him sworn 15 June 1998. Mr West, of counsel, who has throughout appeared for the applicant, objected to much of the affidavit on the ground of relevance and, in the case of clause 20, on the grounds of relevance and that the allegations contained therein were scandalous. Clause 20 was struck out by consent.

Mr Atkinson, of counsel, who appeared for the respondent, conceded in argument that the affidavit, which was apparently settled by the solicitor, does, in fact, contain a great deal of irrelevant material. The affidavit is a strange mix of pleadings, submissions and allegations of fact. For the purposes of determining this application I intend to disregard paragraphs 1, the last two sentences of paragraph 3, paragraphs 4, 5, 6 and 7, the first sentence of paragraph 10, paragraphs 11, 13, 16 and 18. If, indeed, the affidavit was settled by the solicitor, in my opinion it displays a disturbing ignorance of basic drafting principles and the issues raised for determination by me on the application.

I have been greatly assisted by the submissions of counsel for both parties, including the additional written submissions forwarded to me by both counsel by consent after the conclusion of the argument.

It is appropriate to deal with the submissions made by Mr Atkinson in order advanced by him:

1. (a)
   JURISDICTION:

It is submitted that the applicant has not discharged the onus of showing that the relief sought is within the jurisdiction of this Court as contained in section 68(1)(b)(xi) of the District Court Act: See Startune Ptv Ltd and Ultra Tune Systems (Aust) Pty Ltd (1991) 1 QdR at 192.

The affidavit of Mr Leather, the applicant's solicitor, refers to an estimate given by the two earlier mentioned trustees of a value of the property in the vicinity of $160,000 to $180,000. The property is currently being marketed for sale with various local real estate agents. In my view there is no substance at all in this submission. The application is clearly one within the jurisdiction of the Court and the applicant has satisfied the onus upon him.

2. (b)
   STANDING:

Mr Atkinson's submission is that the interests of the applicant in the property is not a proprietary right and therefore an injunction cannot be granted. In support of the proposition that the applicant in this case must establish a proprietary right in the property before an injunction could be granted, he relies on the judgment of Street CJ in Melbourne Oyster Supply Pty Ltd v. Sutherland Shire Council (1967) 1 NSWLR 643. The Chief Justice sought in that case to distinguish contrary English authority in the Privy Council in Zobel v. Croudace (1899) AC 258, and His Honour's reasoning is strongly criticised by the learned authors of Equity, Doctrines and Remedies, Meagher, Gummow and Lehane, Third Edition Butterworths at 2167. In my opinion it is not necessary for me to decide this point for the purposes of determining the application and for that purpose the recent submissions from Mr West submit to the contrary. However, for the purposes of determining this application I am prepared to accept the argument advanced by Mr Atkinson. Mr Atkinson's submission is that the applicant has no proprietary interest as his interest is that of a beneficiary in an unadministered estate, and in accordance with the judgment in the Commissioner of Stamp Duties (Qld) v. Livingstone (1965) Appeal Cases 694; (1964) 3 All England Reports 692; (1964) 3 Weekly Law Reports 963, the applicant's interest is not a specific interest in the property and is not sufficient to establish a proprietary interest.

With respect to Mr Atkinson's submission I think it misconceives the legal nature of the applicant's interest in the subject property. The applicant here is not simply a residuary legatee as was the case with Mrs Coulson in Livingstone. Clearly the trustees hold legal title to the property, subject to the various trusts set out in the Will. Equally clearly, in my view, is that the applicant is given the right under clause 3(a) of the Will to sole use and occupation of the property subject to certain conditions with which he is complying until sale.

The applicant's interests in the property is, therefore, analogous to that of a tenant at will of the trustees, subject to the express terms of the Will. A tenant can sue for trespass and, indeed, only the tenant and not the landlord can sue if a third party trespasses on the land the subject of a tenancy: See Rodrigues v. Ufton (1894) 20 VLR 539 at 524, per Hodges J.

There is also no doubt that an injunction can issue to restrain threatened trespasses to land or (as in this case) the continuation of trespass (see the cases cited in Meagher Gummow and Lehane supra at 2121). There is, therefore, no substance in the submission that the applicant in this case has no standing.

3. (c)
   NATURE OF TRESPASS

The third submission made by Mr Atkinson is that an injunction should not be granted because any injury resulting from the respondent's trespass could be compensated in an award of damages: See R v. McFarlane (1923) 32 CLR 518. The facts established on the evidence which mitigate against this proposition are:

This submission made by Mr Atkinson really goes to a threshold question, because the Court has no jurisdiction to award an injunction if damages are adequate: See cases cited at paragraph 15.8.6, the Laws of Australia, Volume 15 Law Book Company. The quantum of damage is relevant but not determinative.

In my view, for the reasons expressed above, the plaintiff in the circumstances of this case could not be adequately compensated by an award for damages and the respondent's submission on this point therefore fails.

4. (d)
   BALANCE OF CONVENIENCE

Mr Atkinson's final submission is that the balance of convenience favours the refusal of the applicant's application. The respondent's alleged right to occupy the property seems to be based on the following line of reason:

By his actions in entering the property without the consent of the applicant or trustees on 4 June 1998 the respondent has sought to enforce these alleged rights by way of self-help. His conduct in this regard is a relevant factor to consider in relation to an argument based on the balance of convenience. In all the circumstances of this case, I am of the opinion that the balance of convenience favours the continuation of the applicant's occupation of the property in terms of the express provisions of the mother's Will until sale. Any alleged breaches of the terms of those various trusts affecting the property in favour of the respondent are matters for determination between himself and the trustees.

I therefore intend to grant a final injunction and I order that an injunction issue to restrain Mark Vincent Hines by himself, his servant or agent, from occupying, residing or otherwise being at certain premises namely the house and land situated at Thagoona/Rosewood Road, Thagoona, more particularly described as lot 2 on registered plan 813524 County of Churchill, Parish of Walloon, except with the leave or licence of the applicant until further order. I order the respondent to pay the applicant's costs of and incidental to the application, including reserve costs, to be taxed or as agreed.

MR WEST: Does Your Honour need to indicate whether it is to be taxed as if it were a matter of less than $50,000 or not, in case there is any difficulty with the Taxing Officer?

HIS HONOUR: The value of the property would be a relevant factor there, wouldn't it?

MR WEST: Yes, on the first day I did submit I was entitled to costs on the higher costs scale because of the value of the property but I acknowledge that at that stage the trespass was relatively trivial. If it had been an action for damages one could conceive it as being less than $50,000 so there was some leeway there. It is a matter for Your Honour's discretion in the circumstances. I submit the value of the land is the appropriate value and the costs should be taxed on the higher scale.

HIS HONOUR: Mr Atkins, do you want to say anything about that?

MR ATKINS: Your Honour, Mr West's submissions on the first day I think are pertinent for the exercise of your discretion. At that stage the occupation by the respondent was for a brief period of seven days. There was no material - there is no material before you the applicant suffered any specific damage and I would urge Your Honour to exercise your discretion to specify the costs be taxed on the lower scale.

HIS HONOUR: I order that the costs be taxed on the lower scale of the District Court scale.

MR ATKINS: There is two other things, one is the injunction to restrain talks about the leave of the applicant. There is no reference to the executors.

HIS HONOUR: No, that was quite deliberate.

MR ATKINS: The second matter is I spoke to Mr Atkinson yesterday and it was our understanding that this morning would be an interim injunction not a final injunction based upon the material before you.

HIS HONOUR: I don't know where that came from. The application was finally determined.

MR ATKINS: The submission I would make Your Honour is this: the matter came before Your Honour, at that stage an interim injunction was granted, that application was then adjourned to the last time -----

HIS HONOUR: No submissions - no-one sought to cross-examine anyone. No-one has for a minute suggested to me there is going to be any oral evidence called, any affidavits are going to be challenged. It always proceeded on the basis of the material. I have determined it.

MR ATKINS: The expectation from our counsel was because the material was of some shortness that it was adequate to ground a decision by Your Honour on an interim basis which today is the extension of the first return.

HIS HONOUR: Mr Atkins, I can shorten this; that wasn't my understanding. As far as I am concerned I have determined the application. Your client has a right of appeal if he wishes to take that.

MR ATKINS: Very well, there is nothing more I can say.