MacDonald v Clark[2012] QDC 290

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 3 September 2012 I transferred District Court proceeding 216 of 2012 filed in the Southport District Court to the Supreme Court pursuant to s 85 District Court Act 1967. My reasons follow.

2. [2]
   The defendants applied to the District Court for the following orders:

1. (a)
   a declaration pursuant to r 16(a) of the Uniform Civil Procedure Rules 1999 (“UCPR”) that the plaintiffs’ proceeding for which the Claim and Statement of Claim have been issued have not, for want of jurisdiction, been properly started.

2. (b)
   alternatively an order pursuant to r 16(g) of the UCPR staying the proceeding permanently or until such time as determined by the Court. 

3. [3]
   The plaintiffs and defendants are neighbours. The plaintiffs are the registered owners of Unit 16 at 101 Morala Avenue, Runaway Bay described as Lot 24 on Group Titles Plan 104503.  They have lived there since about 1 July 2008.

4. [4]
   The defendants are the registered proprietors at Unit 15, 101 Morala Avenue Runaway Bay described as Lot 23 on Group Titles Plan 104503.  The neighbouring lots are part of a Community Titles Scheme known as “Mornington Quays Community Title Scheme CTS 23056.”

5. [5]
   At the time the plaintiffs purchased their property a brush fence marked the apparent boundary between both lots. In April 2009 the plaintiffs, with the consent of the Mornington Quays Body Corporate, made some improvements to their property. The brush fence was replaced with a wooden fence. Both parties shared the cost of constructing the new fence. The plaintiffs engaged a tradesman to undertake other work which included laying sandstone tiles to extend a patio area and installing a shade sail structure. The improvements were completed by June 2009.

6. [6]
   About 20 July 2011 the defendants engaged a surveyor to determine the correct boundary line between both lots. The survey was undertaken because another neighbour had sought body corporate permission to erect a pontoon at the frontage of Lots 23 and 24. The survey revealed the plaintiffs’ patio and wooden fence encroached into the defendants’ land covering a total area of about 6.5 square metres.

7. [7]
   After unsuccessful negotiation between the parties, the plaintiffs commenced proceedings in the District Court on 18 April 2012 by way of Claim and Statement of Claim. The plaintiffs’ claim is for a declaration pursuant to s 196, or alternatively s 185 of the Property Law Act 1974 (Queensland) (“PLA”) that the plaintiffs have made lasting improvements to part of the defendants’ land in a genuine but mistaken belief that the encroached land was part of the land owned by them.  The plaintiffs, in the claim, also seek orders pursuant to s 197 or s 190 of the PLA vesting the encroached land free of any mortgage, lease, easement or other encumbrance to them.

8. [8]
   The defendants challenge the Court’s jurisdiction to hear and determine the plaintiffs’ claim. On 18 May 2012 the defendants filed a Conditional Notice of Intention to Defend and the present application. The defendants’ contentions are summarised in their written Outline of Argument as follows:

1. (a)
   the proceeding concerns a “dispute” between the plaintiffs and the defendants within the meaning of that expression as defined in s 227(1)(a) of the Body Corporate and Community Management Act 1997 (the “BCMCA”) with respect to the purported encroachments extending from the plaintiffs’ land (Lot 24) over the defendants’ land (Lot 23);

2. (b)
   before the plaintiffs commenced the proceedings the defendants had applied to have the dispute dealt with by the Office of the Commissioner for Body Corporate and Community Management by application made under s 242A of the BCCMA;

3. (c)
   the dispute resolution process invoked by the defendants has not yet been completed and in the premises, and by reason of s 229 of the Act (which provides exclusivity of dispute resolution provision), the plaintiffs are not entitled to commence the within proceeding with the consequence that the proceeding has not been properly started for want of jurisdiction, and

4. (d)
   further, the relief claimed, being relief under the provisions of the Property Law Act other than relief under Pt 19 of that Act is not relief that is within the jurisdiction of the Court to grant, with the consequence that the proceeding has not been properly started for want of jurisdiction.

Jurisdiction

9. [9]
   It is appropriate to first determine whether this Court has jurisdiction to determine the plaintiffs’ cause of action.

10. [10]
    The plaintiffs submit it is clear that the jurisdiction for the determination of this dispute lies within ss 68 and 69 of the District Court of Queensland Act 1967.

11. [11]
    The Supreme Court has exclusive jurisdiction to determine claims or actions under the PLA except where s 68 District Court of Queensland Act 1967 specifically gives jurisdiction to the District Court. For example, s 68(1)(b)(vi) of the Act specifically gives the District Court jurisdiction to hear and determine actions for the sale or partition or division of property pursuant to s 38 or 41 of the PLA where the property does not exceed the monetary limit.

12. [12]
    Section 70 of the PLA also confers the District Court with power to grant relief from forfeiture under s 124, 125, 127 of the PLA, but only in relation to existing or threatened proceedings in the District Court under s 68(1)(b)(xi) for the recovery of possession of land. 

13. [13]
    Section 69 District Court of Queensland Act 1967 clearly confers upon the District Court all the powers and authorities of the Supreme Court to grant relief or remedy, make any order as may be done in like cases by a Judge of the Supreme Court but “only for the purposes of exercising the jurisdiction conferred by this part which for practical purposes means by s 68”^[1] (emphasis added).

14. [14]
    In the present proceeding, the plaintiffs’ claim lies under s 197 of the PLA. The relief claimed is confined to relief in the form of an order vesting in the plaintiffs, part of the defendants’ land upon which the plaintiffs maintain they have made lasting improvements in the genuine but mistaken belief that such land was their property as defined under s 196 of the PLA.

15. [15]
    The plaintiffs appear to have filed the claim in the District Court having regard to the case of Oakwood Constructions Pty Ltd v Wyndon Properties Pty Ltd [2010] QDC 80 (“Oakwood”) where the District Court gave judgment in an action apparently brought under s 196 of the PLA.  The plaintiffs also relied on this decision and the subsequent decision of the Court of Appeal^[2] in oral argument.

16. [16]
    The issue of jurisdiction was not litigated before the primary judge and was not a ground of appeal before the Court of Appeal where no reference to the jurisdiction of the District Court is to be found in the judgment.

17. [17]
    At par [43] of the district court judgment the primary judge said as follows:

“No submissions were made regarding the court’s jurisdiction. References to the court in ss 196 and 197 are to the Supreme Court. This court could not entertain a proceeding based on them. Section 69 of the District Court of Queensland Act 1967, however, confers on the District Court all the powers of the Supreme Court in a proceeding properly brought in the District Court, i.e. one within section 68. The present proceeding may qualify under s 68(1)(b)(viii) for example, also  (b)(i) and paragraph (a)(i).”

18. [18]
    The primary judge recognized that jurisdiction is only conferred on the District Court in a proceeding brought within s 68, whereas s 69 is limited to the powers of the District Court to grant relief.

19. [19]
    The only other reference to the issue of the District Court’s jurisdiction in Oakwood is found in paragraph [1] where the primary judge made reference to the plaintiff claiming, as part of its relief, “(A) A declaration that [the defendant] holds [the relevant lot] in trust for [the plaintiff]”.  The primary judge surmised that the claim for relief under “(A) may well have been there to support a caveat and/or to establish the court’s jurisdiction”^[3] (my emphasis). This may also explain the primary judge’s reference to s 68(1)(b)(viii) later on in the judgment as possibly providing the District Court with jurisdiction in the matter before him.^[4]  

20. [20]
    It is not entirely clear from the primary judgment in Oakwood whether any other, or what other, relief was sought by the plaintiff in those proceedings. 

21. [21]
    The plaintiffs’ attempts on the present application to massage this cause of action into one that falls within the jurisdiction of the District Court are not convincing. I do not see how the present claim qualifies under s 68 of the District Court Act. Section 68(1)(a)(i) refers to a claim for recovery of money or damages which is not claimed in this proceeding.  Section 68(1)(b)(i) gives jurisdiction for enforcing, by delivery of possession, of any mortgage, encumbrance, charge or lien where the amount owing does not exceed the monetary limit.  The present cause of action does not lie under this section.  Section 68(1)(b)(viii) of the Act is confined to cases where the action is for the execution  of a trust or a declaration that a trust subsists.

Conclusion

22. [22]
    The plaintiffs’ claim lies within the jurisdiction of the Supreme Court, not the District Court. The plaintiffs’ cause of action should therefore have been commenced in the Supreme Court. The appropriate course under s 85 of the District Court of Queensland Act 1967 is to order that this proceeding be transferred to the Supreme Court.  It is not clear whether I have any jurisdiction in relation to costs in circumstances such as this, but if I have, I will simply reserve the costs to the Supreme Court.

23. [23]
    The defendants’ other grounds of the present application are not ones which are for this court to decide. As to the merits of the other parts of the defendants’ application, namely whether, this dispute falls within s 228 of the BCCMA and whether exclusive jurisdiction is enlivened under the provisions of the BCCMA, in circumstances where the matter is to be transferred to the Supreme Court, are not issues about which it is appropriate for me to express any view, even on a precautionary basis.

24. [24]
    I order this proceeding be transferred to the Supreme Court. I reserve the costs of the application to the Supreme Court.