Lake v State of Queensland[2017] QDC 39

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant/applicant, State of Queensland, applies for summary judgment pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r. 293, seeking judgment against the plaintiff, Nathan James Lake, on the basis that:

1. (a)
   the plaintiff has no real prospect of succeeding on its claim; and

2. (b)
   there is no need for a trial of the claim.

2. [2]
   The plaintiff by claim seeks declaratory relief and damages in the sum of not less than $155,000, on the basis that:

1. (a)
   the plaintiff purchased a vehicle for $17,000;

2. (b)
   the vehicle was confiscated by police and subsequently delivered to a third party; and

3. (c)
   because of the vehicle being taken and not returned, the plaintiff has a claim in conversion, detinue and/or negligence.^[1]

Background

3. [3]
   On or about 21 November 2015 the plaintiff bought an unregistered 1970 XW Ford Falcon sedan, serial prefix JG33 KT, serial number 77594 SADO 907940 (the vehicle) for $17,000 from Barry Tickle.^[2]  The plaintiff paid Barry Tickle $17,000 in cash for the vehicle^[3] and took possession of the vehicle from Barry Tickle.^[4]  The plaintiff remained in possession of the vehicle from 21 November 2015 up to 30 January 2016.^[5]

4. [4]
   On 30 January 2016 Plain Clothes Senior Constable (‘PCSC’) Proellocks of the Queensland Police Service executed a search warrant on the plaintiff’s premises at Murgon and seized the vehicle.^[6]  On 2 February 2016 a Queensland police service administrative assistant delivered the vehicle to Ms Jeanette McGrory.^[7]

5. [5]
   Ms Jeanette McGrory is the daughter of Geoffrey James Tickle, who died on 2 June 2013^[8] and Anne Sylvia Tickle (Geoffrey’s wife) is the sister of Barry James Tickle.^[9]  Geoffrey Tickle died on 2 June 2013 and left his estate including the vehicle to his wife, Anne Tickle,^[10] but Anne Tickle became completely incapacitated in September 2012 after suffering a severe stroke and being diagnosed with dementia and consequently Jeanette McGrory then acted as Anne Tickle’s attorney in all regards pursuant to an Enduring Power of Attorney dated 30 June 1994.^[11]  At no stage did Jeanette McGrory, in her capacity as attorney for Anne Tickle, formally transfer the vehicle or renew its registration with Queensland Transport or authorise the transfer and ownership of the car or enter into an agreement with respect to the vehicle or receive any money for it, and the car remained the property of Jeanette McGrory’s mother, Anne Tickle until she died on 4 November 2016.^[12]

6. [6]
   PCSC Steven Proellocks provided an affidavit in related Supreme Court proceedings sworn 3 June 2016 in respect of the motor vehicle, which affidavit was in turn exhibited to an affidavit by PCSC Proellocks sworn 20 December 2016 and filed in these proceedings. PCSC Proellocks attests to having examined various documents including the will of Geoffrey Tickle and the enduring power of attorney of Anne Tickle; concluded that Anne Tickle was the lawful and rightful owner of the vehicle;^[13] concluded and was satisfied that Jeannette McGrory was the enduring power of attorney for Anne Tickle;^[14] and established “that neither the informant Jeanette McGrory nor these documents [a reference to the enduring power of attorney of Anne Tickle, and the wills of Anne Tickle and Geoffrey Tickle] provided either the suspect Barry Tickle or Nathan Lake with lawful permission or authority to use or dispose of the vehicle subject to this investigation.”^[15]  Accordingly PCSC Proellocks concluded that he was “satisfied the only appropriate course to take was to release the vehicle to the informant [i.e. Jeanette McGrory] for the vehicle to return to the owner Anne Tickle”.^[16]

7. [7]
   On 24 March 2016 Barry Tickle pleaded guilty to an offence of stealing a vehicle,^[17] in the Caboolture Magistrates Court and Magistrate Batts imposed a criminal conviction and a $750 fine.^[18]

8. [8]
   In the related Supreme Court proceedings before Mullins J, the plaintiff’s counsel advised that Barry Tickle had paid the plaintiff the sum of $14,500.^[19]

Summary judgment

9. [9]
   Uniform Civil Procedure Rules (UCPR) r. 293 provides:-

“293 Summary judgment for defendant

(1) A defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

(2) If the court is satisfied—

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate.”

10. [10]
    The Court of Appeal in Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, affirmed the approach taken in Swain v Hillman [2001] 1 All ER 91 in respect of the meaning of the phrase “no real prospect of succeeding” in these terms:-

“The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves.  The word ‘real’ distinguishes fanciful prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.^[20]”

As Atkinson J stated in Deputy Commissioner of Taxation v Salcedo:

“If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment.  These rules benefit both parties as neither faces the expense of taking a matter to trial when the result of such a trial is inevitable as there is no real prospect of one of the parties being successful.  There are also obvious advantages to the administration of justice if matters that can and ought to be dealt with summarily, are so dealt with.”^[21]

Discussion

11. [11]
    The pleadings and the affidavit material demonstrate, conclusively, that at the date that the plaintiff purported to purchase the vehicle (21 November 2015) the true owner of the vehicle was Anne Tickle, who was then the sole beneficiary of the estate of Geoffrey Tickle who died on 2 June, 2013. Barry Tickle, who purported to sell the vehicle to the plaintiff, was never the owner, had no authority to sell the vehicle and on 24 March 2016, pleaded guilty to stealing the vehicle.

12. [12]
    I accept without reservation the submission on behalf of the defendant that the plaintiff could never obtain title to the vehicle from Barry Tickle because Barry Tickle had no title to give. It is not possible to transfer a better title to goods than the seller possesses.^[22]  Any ownership that the plaintiff obtained in the vehicle was always subject to a claim by Anne Tickle through her then attorney Jeanette McGrory, resulting in the inevitable defeat of the plaintiff’s claim to possession.  Anne Tickle’s ownership was not, I conclude, dependent on whether or not Anne Tickle obtained probate of the will of Geoffrey Tickle.^[23]

13. [13]
    It was unfortunate that the plaintiff was informed, on 17 March 2016 by Acting Inspector Braithwaite, Queensland Police Service that the vehicle “would remain in police possession until the proceedings were finalised”,^[24] whereas in truth the vehicle had already been returned to Jeanette McGrory on 2 February 2016. However, that does not alter the fundamental proposition that the plaintiff, in the light of the facts outlined and the plea by Barry Tickle to stealing the vehicle, never gained ownership of the vehicle. The plaintiff is out of pocket at most $2,500 (a debt owing by Barry Tickle), and regardless of the value of the vehicle (which itself is uncertain) the plaintiff can never succeed on any basis against the State of Queensland, whether as pleaded or otherwise.  It is therefore entirely appropriate that these proceedings be brought to an appropriate conclusion because there is, I consider, no real prospect that the plaintiff can succeed on any part of his claim.

Order

14. [14]
    Pursuant to r. 293 of the Uniform Civil Procedure Rules 1999 (Qld), judgment be given against the plaintiff.

Costs

15. [15]
    I will hear the parties on costs.