Grzegolec v Grzegolec[2007] QSC 296

SUPREME COURT OF QUEENSLAND

[1] DAUBNEY J:  In 1953, Piotr and Feodora Grzegolec purchased a property on Old Cleveland Road East, Capalaba, which was then described as Lot 25 on Registered Plan 70826.  In August 1978, that property was subdivided into Lot 1 and Lot 2 on RP 163841.

[2] The Grzegolec family home was situated on the land which became Lot 2.  The applicant, Tadeusz Grzegolec, is the youngest child of Mr and Mrs Grzegolec.  He was born in 1955.  His elder siblings are Maria Helena Bruce, Stanislawa Davey, Irena Olga Cranitch, and Jan Henryk Grzegolec.

[3] In about 1972, the applicant started doing panel beating work from his then family home.  He eventually started his own business, TG Crash Repairs, which he operated from that property.  He stayed at home with his parents until he married and moved into his own home in Birkdale.  He continued to operate his panel beating business from his parents’ property.

[4] In about 1980, Mr and Mrs Grzegolec bought some land at Alexandra Hills.  In 1981, his parents told the applicant that they were getting tired of the noise from his panel beating business, and that they were going to build a new home on their land at Alexandra Hills.  The applicant and his parents then reached an agreement that he would purchase Lot 2 from them for $35,000.  They regarded this as fair market value at the time.  This assessment is effectively confirmed by a valuation of Lot 2 as at 30 June 1981 by Mr Ian Crane, a registered valuer, which was in evidence before me.

[5] The applicant deposes that he paid the purchase moneys to his parents by the end of June 1981, although he cannot now remember the precise date.  In exchange for the purchase price, his parents gave him the Certificate of Title to Lot 2, which he held until after his mother’s death, and which is now in his solicitors’ custody.  The applicant also deposes that since purchasing Lot 2 in 1987, he has all of the expenses in connection with the property, including all rates and levies.

[6] After purchasing Lot 2, the applicant and his wife sold their Birkdale home, and they moved into the house on Lot 2.  They lived there for about two years until they purchased another house and rented out the house on Lot 2.  The applicant continued to operate his business from Lot 2.

[7] Despite all of this, a transfer of Lot 2 to the applicant from his parents was not registered, if indeed one was ever signed.  The reason given for this is that at the time of the purchase, Lot 2, which had previously been zoned Light Industrial, had been rezoned to Residential B.  After objections by the applicant and his father, the local authority allowed the panel beating business to continue on the property as an existing non-conforming use, but only until such time as ownership of the property was transferred.  The applicant says that he believed that if he had taken a formal transfer of the property, the consent to the non-conforming use would have lapsed.  He says ‘[f]or this reason, my parents agreed to hold the title on my behalf and so enable me to continue to utilize the property for a panel beating business’.

[8] The applicant’s father died in 1984, and his mother in 2005.  In 1989, the applicant had paid for the erection of a new shed on the property.

[9] The applicant now seeks:

(a) a declaration that the applicant was absolutely entitled to Lot 2 as from 30 June 1981, and

(b) an order pursuant to s 114 of the Land Titles Act 1994 (Qld) that he be registered as the proprietor of Lot 2.

[10] On the material before me, the only people who could possibly claim to have competing interests in Lot 2 are his siblings.  Each of them has been served with this application.  Irena and Maria have filed affidavits confirming, to their knowledge, the applicant’s account of purchasing Lot 2 from his parents, and payment of the purchase price of $35,000.  Each of them expressly consents to the orders sought by the applicant.  Stanislawa and Jan have also filed affidavits.  Whilst they have less detailed knowledge of the purchase of the property by the applicant, each of them recalls their parents indicating, at about the time of their father’s retirement, that the applicant was going to purchase Lot 2.  This is consistent with the applicant’s account.  Each of Stanislava and Jan expressly depose that they have ‘no interest in making a claim on the property now or in the future’.  I note for completeness that Jan and Irena are the executors of their mother’s deceased estate.

[11] It is, in my view, clear enough from this recitation of the facts of this case that from the time he paid his parents the purchase price of $35,000 (which happened no later than 30 June 1981), his parents were the base trustees of Lot 2 for the benefit of the applicant.  Moreover, as he was the sole beneficiary, this was clearly a case apposite to the application of the Rule in Saunders v Vautier[1] because the applicant was absolutely entitled to Lot 2 as trust property from the time he paid the purchase price and took possession of the Certificate of Title.

[12] Section 114 of the Land Title Act 1994 (Qld) provides:

114Applying for Supreme Court order

(1)This section applies to –

(a)the Attorney-General;  or

(b)a trustee or beneficiary under a trust;  or

(c)a personal representative, a devisee or anyone else interested in –

(i)a lot of a deceased registered proprietor;  or

(ii)a trust involving a lot of a deceased registered proprietor.

(2)A person to whom this section applies may apply to the Supreme Court for an order that a named person be registered as proprietor of a lot.

(3)The Supreme Court may make 1 or more of the following orders –

(a)that a person be registered as proprietor of the lot;

(b)that a person be removed from the freehold land register as proprietor of the lot;

(c)that a caveat be lodged to protect a person’s interest in the lot;

(d)that a person advertise in a specified form, content or way;

(e)that costs be paid by any person or out of any property.

(4)The registrar must register particulars of an order if a request to register the order is lodged and an office copy of the order is deposited.

(5)An order does not vest an interest in the lot until it is registered.

[13] A current title search of Lot 2 reveals that it is still registered in the names of his deceased parents, and the application of the section is therefore invoked by sub-s 114(1)(c)(i).

[14] The applicant, apart from serving his siblings and the Registrar of Titles with this application, had also publicly notified his intention to bring this application by an advertisement placed in the Courier Mail.  In the circumstances described above, this is an appropriate case for an order under s 114(3)(a).

[15] Accordingly, I make the following declaration and order:

1.A declaration that from 30 June 1981 the Applicant was absolutely entitled to the property situated at 264 Old Cleveland Road East, Capalaba, Queensland, 4157 described as Lot 2 on RP 163841, County of Stanley, Parish of Capalaba, Title Reference 15815127 (‘the Property’).

2.An order pursuant to s 114 of the Land Titles Act 1994 that the applicant be registered as proprietor of the Property.