leave to proceed - where the plaintiff obtained orders for
costs as against the
defendant in 2017 – whether the plaintiff needs leave to proceed under
Source
Original judgment source is linked above.
Catchwords
CIVIL PROCEDURE – COURT SUPERVISION – DORMANT PROCEEDINGS -leave to proceed - where the plaintiff obtained orders forcosts as against thedefendant in 2017 – whether the plaintiff needs leave to proceed underrule 389 to rely on an enforcementwarrantCIVIL PROCEDURE - COSTS – where costs certificates were filed in 2017– where the defendant filed preliminary objections– whetherprocedural fairness accorded by the costs assessor – where the defendanthas delayed in bringing his applicationfor a review of the costs assessmentsEQUITY - TRUSTS – where the defendant alleges he signed declarationsof trusts in 1989 – whether in fact trust createdand whether thedeclarations of trust were stamped and stamp duty paidUniform Civil Procedure Rules 1999 (Qld) rr 5, 389, 720, 738, 742,799, 821, 828Artahs Pty Ltd v Gall Stanfield and Smith [2012] QCA 272[2013] 2
Qd R 202, cited
Basha v Basha [2010] QCA 123, considered
Citicorp Australia Limited v Metropolitan Public Abbatoir Board
[1992] 1 Qd R 592, cited
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA
26
(2016) 260 CLR 1, cited
Hannover v Robson [2012] QSC 47, considered
Hood v State of Queensland [2002] QSC 169, considered
Hood v State of Queensland [2003] QCA 408, cited
Jovanovski v Tafcom Contractors Pty Ltd QSC No 4012/1987,
cited
Kells v Waters [2007] NSWSC 885, cited
Khoury v Khoury [2006] NSWCA 184
(2006) 66 NSWLR 241, cited
Project Blue Sky v ABA (1998) 194 CLR 355
[1998] HCA 28,
cited
Quinlan v Rothwell [2008] QSC 143, considered
R v A2 [2019] HCA 35
(2019) 269 CLR 507, applied
Radich v Kenway [2014] QCA 301, cited
Radich v Smith [2012] QMC 17, cited
Richards v Delbridge [1874] UKLawRpEq 67
(1874) LR 18 Eq 11, cited
Rideout v Glaxo Group Limited [1996] 1 Qd R 200, applied
Westpac Banking Corporation v Keppel [2017] QDC 223, considered
Judgment (79 paragraphs)
[1]
CIVIL PROCEDURE - COURT SUPERVISION - DORMANT PROCEEDINGS - leave to proceed - where the plaintiff obtained orders for costs as against the defendant in 2017 - whether the plaintiff needs leave to proceed under rule 389 to rely on an enforcement warrant
[2]
CIVIL PROCEDURE - COSTS - where costs certificates were filed in 2017 - where the defendant filed preliminary objections - whether procedural fairness accorded by the costs assessor - where the defendant has delayed in bringing his application for a review of the costs assessments
[3]
EQUITY - TRUSTS - where the defendant alleges he signed declarations of trusts in 1989 - whether in fact trust created and whether the declarations of trust were stamped and stamp duty paid
Westpac Banking Corporation v Keppel[2017] QDC 223, considered
[23]
[1] The plaintiff applies for the following orders:
[24]
(a) a declaration that the enforcement officer may seize and sell the properties identified in paragraphs 1, 2, 3, 4, 5, 6 and 7 of the enforcement warrant dated 22 March 2022
(b) a declaration that the enforcement officer may seize and sell lots 34 and 35 on registered plan 19028 title reference 14938161[1] and lots 13 and 14 on registered plan 34585 title reference 11599044[2].
[25]
(a) An order setting aside the enforcement warrant on the grounds it was issued without the leave required under UCPR 389(2) and 799(2)(a) and it includes property being held on trust.
(b) An order pursuant to UCPR 742(6) that the costs assessments dated 28 April 2017 and 31 May 2017 be set aside.
[26]
[3] On 16 May 2013, the plaintiff commenced a proceeding claiming recovery of unpaid land tax with respect of 10 properties for periods up to and including 30 June 2013. Summary judgment was entered for the plaintiff by Douglas J on 12 June 2014 in the amount of $486,509, together with interest and costs.
[4] The defendant paid the plaintiff the sum of $487,994.10 on 2 April 2015 and it was agreed by consent that the balance of the plaintiff's claim be dismissed and the defendant pay the plaintiff's costs of the proceeding to be agreed or assessed.
[5] On 24 October 2014, the defendant filed an application for a costs assessment. On 21 May 2015, Atkinson J ordered that the costs assessment be set aside and appointed Mr Steven Hartwell to conduct the assessment. The costs assessments were completed on 28 April 2017 and 31 May 2017.
[6] On 23 May 2017, the deputy registrar ordered the defendant pay the plaintiffs costs in the amount of $49,976.62.
[7] On 31 May 2017, the deputy registrar ordered the defendant pay the plaintiffs further costs in an amount of $72,498.21. The total amount of costs owing is $122,464.83.
[8] On 17 August 2017, the plaintiff obtained an enforcement warrant for seizure and sale of the properties owned by the defendant. In March 2017, the plaintiff registered a statutory charge over each of the defendant's properties for land tax owing on that property to the plaintiff.
[9] On 16 January 2018, Martin J dismissed an application by Mr Wiltshire seeking an order for an auction of property owned by the defendant. The application was dismissed because the defendant claimed that the property was held on trust and the judge held in light of that circumstance the property could not be sold.
[10] As a result of this decision, at that stage, the plaintiff did not proceed with an application to sell the defendant's properties. In July 2018, the plaintiff became aware that the defendant asserted he held the properties identified in paragraph 2 of the application on trust, pursuant declarations of trust exhibited to the affidavit of Jaime McIver. These declarations of trust are dated 2 June 2000 and 19 December 2000. These declarations are unstamped.
[11] Since obtaining the enforcement warrant on 17 August 2017, the plaintiff has continued to renew it and it will expire in March 2026.
[27]
(a) 38 Lever Street Albion, duty $8,975, penalty interest $38,502.75.
(b) 29 Wellington Street Virginia, duty $3,650, penalty interest $15,585.50.
(c) The total is $66,713.25.
[28]
[13] A letter of demand was sent to the defendant on 20 July 2020. On 6 August 2020, the defendant denied he owed the stamp duty.
[14] There are three issues to be determined as follows:
Whether rule 389 applies to an enforcement warrant and whether the enforcement warrant should be set aside.
Whether the defendant is the trustee of 39 Lever Street Albion and 29 Wellington Street Virginia pursuant to 1989 declarations of trust and whether the alleged 1989 declarations of trust were stamped and stamp duty paid.
Whether costs assessments dated 28 April 2017 and 31 May 2017 should be set aside.
[15] Rule 389 (2) requires a party to seek the court's leave to proceed if a step in the proceeding has not been taken for two years.
[16] The defendant submits that rule 389 does apply to enforcement warrants. It is submitted that these proceedings commenced on 17 August 2017. It is submitted the court would be persuaded by the statements made in Westpac Banking Corporation v Keppel.[3] It is submitted that the renewal of the warrant is not a step in the proceedings.
[17] It is submitted that if rule 389 does apply, then the court would exercise its discretion against granting leave to proceed as 10 years has passed since the original judgment and seven years has passed since the costs judgment. The defendant's reasonable expectation is that the proceedings came to an end. There is no explanation for the delay.
[18] Even if rule 389 does not apply, rule 5 does. It is submitted in reliance on Basha v Basha[4] and other similar cases, this is a case where it is appropriate for the court to impose a sanction under rule 5(4) to restrain the plaintiff from proceeding further.
[19] It is also submitted that leave was needed under rule 799(2). I do not accept this argument as the evidence shows the warrant was issued on 17 August 2017[5] within the 6-year period, it has been renewed yearly since and is not due to expire until March 2026.
[31]
[20] The plaintiff submits that rule 389 does not apply to enforcement warrants. It is submitted that the "proceeding" as defined in rule 389 ended on 31 May 2017 when the Deputy Registrar ordered the defendant to pay the plaintiff's costs. It is submitted that an "enforcement proceeding" is not a "proceeding" and is governed by Chapter 19 of the rules.
[21] It is submitted the court would not be bound by the statements made in Westpac Banking Corporation v Keppel.[6]
[22] It is further submitted that the renewal of the warrant would be regarded as a step in any event. I might say, I do not accept this submission as the cases say that a renewal of process is not a step.[7]
[32]
[23] The duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to mean.[8]
[24] In construing the meaning of words in a statute, one must have regard to the approach taken by the High Court. In R v A2[9] Kiefel CJ and Keane J noted that:
[33]
a. One must first consider the words of the statute, but the matter does not end there.
[34]
b. The context of the statute however may point against an ordinary meaning of the words. Therefore the context needs to be considered.
[35]
c. Context includes the surrounding statutory provisions and the statute as a whole. This extends to the mischief the statute is trying to remedy.
[36]
d. Though the actual words should not be lost sight of and the general purpose of the statute may not detract from the words.
[37]
[25] When I consider the provisions of the UCPR it seems to me that "enforcement proceedings" are to be distinguished from "proceedings" referred to in rule 389.
[26] Rule 389 is contained in the chapter 10 which is entitled "Court supervision." The scheme of that chapter deals with matters such as directions, failing to attend, failing to comply with the rules and amendment. In my opinion, these provisions are all aimed at the proceedings the subject of Chapter 2.
[27] Chapter 2 is entitled "Starting proceedings". Rule 8(2) provides for the types of originating process which does not include an enforcement warrant. It is interesting to note that rule 8(3) provides that an outcome of a proceeding is not an originating process, which to mind tends to support the contention that an enforcement warrant is not a proceeding.
[28] Chapter 9 provides for Ending Proceedings Early". This Chapter clearly does not relate to an enforcement warrant.
[29] In my view, enforcement warrants are quite different. They are the subject of Chapter 19 headed "Enforcement of Money Orders." It is a procedure available to recover money after the proceeding has ended. Rule 799 specifically refers to "enforcement proceedings."
[30] Rule 821 specifically provides as to renewals. This rule does not limit the number of times an enforcement warrant may be renewed. It would seem strange that there would be two renewal procedures under both 389 and 821. That would not make sense. It cannot be thought that was the intention of the rule maker.
[38]
(a) Basha v Basha[13] involved a case where the appellant's action was dismissed for want of prosecution after a nine year delay.
(b) Hood v State of Queensland[14] involved a case where the cause of action arose in 1993 and there was an eight year delay in taking a step.
(c) Quinlan v Rothwell[15] involved a matter where the plaintiff had sued for defamation in 1990. The action was still before the court in 2008.
[39]
[38] The plaintiff has an order in its favour concerning costs. A complicating feature of the case is that in 2018 the plaintiff discovered the existence of the alleged trusts[16] and Martin J found that the property was held on trust and as a result it could not be sold. Despite this the plaintiff continued renewing the warrant and indeed a letter of demand was sent in 2020.
[39] I do not consider that this is a case where in the exercise of my discretion I should impose a sanction under rule 5.
[40] In conclusion, I find that rule 389 does not apply and I propose to dismiss the defendant's application to set aside the warrant.
[40]
[41] The defendant's case is that the defendant is trustee of two properties, namely 38 Lever Street Albion and 29 Wellington Street Virginia. He says that on 16 October 1989 he signed and declared a declaration of trust with respect to each property with his children as beneficiaries.
[42] In his points of claim he says that on or about 7 December 1990 he attended the Stamp Duties Office and paid stamp duty with respect to 38 Lever Street. He says that on or about 16 June 1994 he did the same with respect to 29 Wellington Street.
[43] He says that a safety cabinet was stolen from his premises and he thought it contained the declarations. He said that he signed two more declarations of trust one on 2 June 2000 with regard to Lever Street and one on 19 December 2000 with respect to Wellington Street, which he intended would replace the "stolen" declarations of trust.
[44] He alleges that on a date he does not recall he attended the plaintiff's premises and was told that the two new declarations were exempt from stamp duty.
[45] He alleges that on a date he can no longer recall he found copies of the declarations of trust at his house at 116 Oriel Road, Clayfield.
[46] He says that the plaintiff was not entitled to assess stamp duty on the later declarations of trust where stamp duty was paid and assessed on the earlier ones; the later declarations are a nullity and the plaintiff is estopped from claiming duty on the later declarations
[47] The plaintiff denies that the defendant holds the two properties on trust.
[48] It does not admit that presented the earlier declarations of trust and denies that duty was paid on them.
[49] The plaintiff says that duty was validly assessed on the later declarations of trust and the defendant has not paid the duty and that sum is due and owing.
[41]
[50] Jessica Cliffe in her affidavit dated 26 July 2024[17] says that she is a debt resolution officer in the Queensland Revenue Office. She says that searches were undertaken of records kept by the Plaintiff and no records were found of trust deeds produced to the Commissioner prior to 2018 or of advice that the Trust Deeds were exempt from duty. The defendant remains indebted to the Commissioner for unpaid stamp duty.
[51] In her second affidavit[18] she says that the amount of $66,713.25 remains outstanding to the Commissioner with respect to the 2000 declarations of trust.
[52] In her third affidavit[19] she says that she conducted searches of the properties and discovered:
[42]
(a) A mortgage regarding 29 Wellington Street dated 13 May 1994 in the name of the defendant.
(b) A release of mortgage in the name of the defendant.
(c) Core Logic information noting that the defendant owns 29 Wellington Street and listed the property for sale in 2014.
(d) An application by the defendant as owner for demolition of the Wellington Road property.
(e) A Residential Tenancy Authority report showing the defendant was owner of the Lever Street and Wellington Road properties.
(f) List of CBA transactions which show that monies from the RTA went into the defendant's day to day account.
[43]
[53] In evidence, Ms Cliffe said that she had no direct knowledge of the searches referred to in exhibit 1. The searches referred to in exhibit 3 searches were conducted personally by her.
[54] Mr Matheson is a Digital Service Officer with the Queensland Revenue Office[20]. He has searched the Commissioner's records and found no record of a declaration of trust before 2000. He also says that the transaction in 1994 where $655 was paid for duty does not relate to a declaration of trust. Exhibit 5 are the searches which shows this relates to a conveyance.
[55] In evidence Mr Matheson produced exhibit 5 which shows that the $655 stamp duty related to a conveyance in 1994. He also conceded that before 1993/1994 there was a Stars system from which no information can be obtained.
[56] Mr Edward McWhinney swears he is a Team Leader at the Queensland Revenue Office.[21] He swears that on 29 August 2019 the Commissioner assessed stamp duty for the trust deed for 38 Lever Street at $47,477.75 and 29 Wellington Street at $19,235.50. These amounts are due and owing.
[57] Ms McIver, a lawyer from Crown law, sets out the history of this matter to which I have referred in the background section.[22]
[44]
[58] In his affidavit dated 18 July 2024,[23] Mr Amos says that he does not believe that stamp duty is payable as he produced the declarations of trust to the Stamp Duties Office many years prior and was informed they were exempt from duty. The 2000 declarations were made to replace the earlier ones which he mistakenly believed were stolen as he believed they were in a safety cabinet stolen in 1993.
[59] In his affidavit dated 8 August 2024[24] he produces a copy of the two 1989 declarations. The one relating to 38 Lever Street has a receipt at an angle copied in front of the declaration. The one relating to 29 Wellington Street has a stamp duty notation for $655 with the word "Conv" next to it.
[60] In his affidavit dated 19 December 2024,[25] he says that he signed and declared the earlier declarations in the presence of a JP. He says that he presented the 38 Lever Street declaration to the stamps office on 7 December 1990, stamp duty was assessed and he paid this. He says that he presented the 29 Wellington Stret declaration to the stamps office on 16 June 1994, stamp duty was assessed and paid.
[61] He says that on a date he cannot recall a safety cabinet was stolen from his house which he thought contained the earlier declarations.
[62] On 2 June 2000 he signed a "replacement" declaration for the 29 Wellington Street property and on 19 December 2000 one for the 38 Lever Street property. He says that on a date he cannot recall he attended the stamp duties office and informed an employee that these new declarations replaced the older ones and was told they were exempt from duty and he relied on this representation.
[63] In his affidavit dated 24 February 2025[26] he says that the original declaration of trust in respect of 38 Lever Street Albion was tendered as an exhibit in the District Court on or about 15 September 2000. He made a copy of it. He says he attended the registry on 12 January 2018 to retrieve this but was told the court file had been destroyed.
[64] With respect to the original declaration for 29 Wellington Street, in about August 1992 he gave this to his solicitors and was told it would be stamped. He later spoke to Ms Skabar who told him the amount of the duty and he paid it. He received a photocopy of it from her. He later asked for the original but never received it. He was told it was in safe custody but this turned out not to be the case so it has been lost, misplaced or destroyed.
[45]
[75] The plaintiff submits I would not accept Mr Amos' evidence and submits that the court would not be persuaded that either of the 1989 declarations were stamped. The notation on the bottom of the Lever Street declaration simply records the receipt of a document.
[76] It was submitted that Mr Amos' evidence that the Lever Street declaration was tendered in the District Court should be rejected as it conflicts with his evidence that the 2000 ones were made to replace the 1989 ones as he believed they were stolen.
[77] It is submitted I would accept the evidence of the plaintiff's witnesses that the documents were not stamped.
[78] More fundamentally, it was submitted that I would not accept that the declarations were made at all or that a trust was created. Mr Amos conducted himself as legal owner of the property not as a trustee and did not regard himself as a trustee.
[79] Either way, this leads to the conclusion that an order should be made that the enforcement officer may seize and sell 38 Lever Street and 29 Wellington Street.
[46]
[80] The defendant submits that there are valid declarations of trust relying on Richards v Delbridge[28] and Khoury v Khoury[29]
[81] It is submitted as a result of the declarations of trust the enforcement officer is not empowered to sell the trust property by reason of UCPR 828 as it is exempt property as defined in the Civil Proceedings Act 2011 (Qld).
[82] It is further submitted that I would be satisfied on Mr Amos' evidence that he did pay the stamp duty. It is submitted that the Crown was unable to produce searches before 1993 and 1994 to verify that the declarations were not presented or that duty was not paid.
[83] It is submitted I would accept his evidence with respect to the 2000 declarations that he was told they were exempt from duty; the 2000 declarations are a nullity and the plaintiff is estopped from claiming duty in reliance on Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd.[30]
[84] In the circumstances, I should set aside the enforcement warrant insofar as it relates to 38 Lever Street and 29 Wellington Street.
[47]
[85] I accept the Plaintiff's submissions
[86] I do not accept the evidence of Mr Amos. I was able to observe his demeanour and that has assisted me in assessing his evidence.
[87] His evidence was not convincing for the following reasons:
[48]
(a) He claimed that his intention was to create a trust but all of his actions were to the contrary.
(b) He mortgaged the property calling himself the owner.
(c) He applied for demolition of the Wellington Street property as the owner.
(d) He received rent from the Lever Street and Wellington Street properties and bond money returns to an account in his own name.
(e) He did not keep a trust account for the beneficiaries.
(f) He did not tell his children about the trust
(g) He treated the properties as his own.
[49]
[88] I find on the balance of probabilities he did not create a trust at all on each property in 1989.
[89] Further, or alternatively, I find on the balance of probabilities that he did not pay duty on the two earlier declarations for the following reasons:
[50]
(a) Mr Amos was very vague as to when he went into the stamps office and who he spoke to. I find that he did not attend the stamps office and have the conversation as alleged.
(b) The Stamps office records do not reflect that he paid duty on either of the two 1989 declarations.
(c) With respect to the 38 Lever Street property, he gave inconsistent evidence. He first claimed that he believed the document was stolen but then he claimed it was tendered in the District Court and later destroyed.
(d) With respect to the Wellington Street property, he also gave inconsistent evidence. He claimed in one affidavit he took this in himself to the Stamps office yet in another he said it was Keller Nall and Brown who did this.
(e) Also I consider it clear that the notation of $655 does not relate to the stamping of the declaration at all but of the 1994 conveyance that is the subject of exhibit 5.
(f) I also did not accept his vague explanations as to how he was able to find these two copies of the 1989 declarations.
[51]
[90] Having made the above factual findings, I am satisfied that I should make an order declaring that the enforcement officer may seize and sell 38 Lever Street and 29 Wellington Street.
[52]
[91] As I noted previously, on 23 May 2017 the Deputy Registrar ordered the defendant to pay the plaintiff's costs in the amount of $49,976.62 and on 31 May 2017 a similar order was made in the amount of $72,488.21.
[92] The defendant seeks a review of the costs assessments under UCPR 742.
[53]
[93] In his affidavit dated 18 July 2024,[31] Mr Amos swears that on 28 April 2017 Mr Hartwell issued the costs assessments and schedules.
[94] On 17 May 2017, his lawyers wrote to Mr Hartwell requesting reasons as to why he did not give the defendant the opportunity to object to items in the cost statement when the defendant was waiting for a decision on an amended preliminary notice of objection; why he asserted he was not bound by Mr Pike's directions; why he did not direct the plaintiff to provide further and better particulars requested by the defendant; why he did not direct the plaintiff to provide relevant documents; why he did not direct the plaintiff to respond to the preliminary notice of objection; why he did not issue a $0.00 assessment; why he disallowed the some of the preliminary objections; why he did not ascertain the extent of liability to the Crown solicitor; why the full amount was allowed for care and consideration; why the full amount was allowed for counsel; why a professional fee figure was allowed together with other amounts.
[95] Another letter raising other complaints was sent on the same day.
[96] On 31 May 2017 Mr Hartwell issued a further costs certificate.
[97] On 12 June 2017, Mr Amos' lawyers wrote to Mr Hartwell requesting further reasons. Follow up letters were sent on 20 July 2018; 18 December 2018 and 4 September 2022. Complaints were also made in writing to the Crown solicitor over some years.
[98] Finally, on 18 July 2024, Mr Hartwell was asked to provide reasons. Mr Hartwell on 25 July 2024 said he would attend to this. Ultimately, on 21 October 2024 Mr Hartwell replied stating he was unable to provide written reasons.
[99] In his affidavit dated 18 November 2024[32] Mr Amos refers to the fact that he filed preliminary notices of objection to the Plaintiff's costs in 2014 and 2015. In 2016 he objected to the procedure adopted by Mr Hartwell and unsuccessfully brought an application in the Supreme Court. This was dismissed on 16 September 2016 on the grounds that Mr Hartwell had not yet filed the certificates of assessment.
[100] In his affidavit dated 1 August 2024,[33] Mr Amos said he did not pursue Mr Hartwell for his reasons after 4 September 2022 because he believed the claim had long been finalised or abandoned by the plaintiff.
[54]
[102] The defendant submits that Mr Hartwell failed to accord him procedural fairness and did not provide natural justice under UCPR 720. The assessor gave the defendant no opportunity to make final objections.[35]
[103] The defendant submits that there was a failure to give reasons under UCPR 738. This is in mandatory terms and therefore the assessment is vitiated.
[104] It is submitted that Mr Amos was not obliged to bring the application before the receipt of reasons and indeed there is a forensic benefit in having them.
[105] It is submitted the costs assessor's decisions and the orders should be set aside under section 742(6).
[55]
[106] The Plaintiff submits that UCPR 742(7) provides that an application for review does not operate as a stay of the Registrar's order.
[107] It is also submitted that Mr Amos could have at any time made the application for review and he did not. In reliance on Jovanovski v Tafcom Contractors Pty Ltd[36] it is submitted that a review of a costs assessment can and often does occur in the absence of reasons. It is also submitted that I could hear the application for the review and set aside the costs certificate but not vary the assessment or alternatively I could change some of the items.
[108] It is submitted in reliance on Hannover v Robson[37] that this is effectively an appeal against the exercise of a discretion and the challenger needs to show that an error in that regard. This has not been shown.
[109] It is also submitted that procedural fairness was accorded to the defendant in that Mr Hartwell produced draft certificates of assessment and schedules. This was the time objections could have been made. The fact is he has had many years to challenge the orders and has not done so.
[110] The lack of reasons was not a fatal one, particularly where he could have applied to the court for the reasons or applied to set the assessment aside without them.
[56]
[111] I accept the plaintiff's submissions.
[112] The fact is, Mr Amos under rule 742 had to file an application within 14 days after he received the certificates.[38] In this case, the certificates were issued on the 28 April 2017 and 31 May 2017. The application by the defendant is almost eight years out of time.
[113] Despite the failure of Mr Hartwell to give reasons, this was no impediment to such an application. I accept the plaintiff's submission that applications for review can occur in the absence of reasons.[39]
[114] I consider that Mr Amos has not adequately explained the reasons for his delay in bringing the application for review or for reasons. He has had ample time to do this. The fact is the application was not brought until 19 November 2024.
[115] There is no doubt of course that procedural fairness applied to the assessment and it had to be fair and efficient.[40]
[116] In this case the evidence reveals that Mr Amos lodged his preliminary notice of objections on 21 October 2014 and 7 May 2105. Mr Hartwell in his letter dated 28 June 2016 issued draft certificates of assessment and schedules. In these he produced a schedule of reductions totalling in excess of $10,000. He did not agree with general objections raised except as to objection 8 and he allowed each party seven days to make further submissions.
[117] Instead of making specific objections, the defendant objected as to the procedure. I find that the defendant was accorded procedural fairness at that stage of the assessment.
[118] I also accept that the cost assessor had a very broad discretion in conducting the assessment. As was noted in Hannover v Robson[41] the court would be reluctant to interfere when the question is of amount only.
[119] I do not exercise my discretion to extend the time for the making of the application for review and I dismiss the application.
[57]
[120] For the reasons given I make the following orders:
I declare that that enforcement officer may seize and sell the properties identified in paragraphs 1, 2, 3, 4, 5, 6 and 7 of the enforcement warrant for seizure and sale of property dated 22 March 2022.
I declare that the enforcement officer may seize and sell lots 34 and 35 on registered plan 19028 title reference 14938161 and lots 13 and 14 on registered plan 34585 title reference 11599044.
I dismiss the defendant's application to set aside the enforcement warrant dated 25 March 2022.
I dismiss the defendant's application for a costs review.
I will hear the parties on the question of costs.
I give liberty to apply on the form of the orders.
[12] On 29 August 2019, the plaintiff assessed stamp duty on the 2000 declarations of trust as follows:
[31] I consider enforcement warrants are in a different category to proceedings, noting that rule 799 allows an enforcement creditor to start enforcement proceedings at any time within 6 years without leave. In this case the 6 years periods commenced on 23 and 31 May 2017.
[32] I therefore accept the plaintiff's submissions and conclude that rule 389 does not apply to an enforcement warrant.
[33] I am strengthened in my view by the statement by Peter Lyons J in Artahs Pty Ltd v Gall Stanfield and Smith[10] where His Honour said that the expression "a step in the proceedings" has been equated to a proceeding in an action. This is consistent with Citicorp Australia Limited v Metropolitan Public Abbatoir Board.[11] An enforcement warrant is not a proceeding in an action.
[34] Turning to the decision of Westpac Banking Corporation v Keppel[12] whilst Judge Long did state at [15] that rule 389 was potentially applicable to enforcement proceedings, this seems to be at odds with the statement at [14]. Also, I accept the plaintiff's submission that the statement at [15] was obiter and it appears His Honour's attention was not drawn to the distinction between "proceedings" and "enforcement proceedings" and to the fact that under rule 821 the number of times the warrant can be renewed is not limited.
[35] On the rule 5 point, this is a case where the court is not concerned with an actual proceeding where prejudice might be caused because of loss of evidence or lost memories.
[36] The cases relied on by the defendant are to be distinguished as they relate to actions not enforcement proceedings.
[37] For example:
[65] Mr Amos gave oral evidence that he has been a licenced auctioneer and real estate agent since 1980. He has had experience in this role. He had been involved with many contracts of sale. He also had worked as a managing law clerk for some time. He is also the sole director of a company called Property Renovations Pty Ltd.
[66] With respect to the 1989 declaration of trust concerning Wellington Street, he agreed he typed up this document and he agreed the effect of it was that he would, at the request of the beneficiaries, convey and transfer the property to them at any time. He understood this to mean that if the children asked him to transfer the property for them he would. He agreed that on 5 May 1994 he borrowed money secured by the property in his own name. He agreed the mortgage document did not list him as trustee and simply said the estate was in fee simple. He claimed he regarded himself as trustee of the property. The children however did not know about the trust. He claimed he put the properties into trust because he wanted to hang onto them for a long time and give them later to his children. He agreed that on the release or mortgage it was simply him listed as mortgagor. He accepted he regarded himself as free to deal with the property without any regard to the children.
[67] With respect to the CoreLogic search[27] he agreed that it simply noted him as owner. Despite what was in the CoreLogic printout, he denied that he tried to sell the property for $575,000. He agreed the children didn't know of the existence of the trust deeds. He agreed that the dwelling on 29 Wellington Street was demolished about 10-12 years prior and he agreed that he applied for the permission for the demolition through Heathwood Cardillo Wilson Pty Ltd. The application did not name him as trustee of the property, and he did not tell Heathwood Cardillo Wilson that he was a trustee. He agreed that as at 2014, in his mind, he was able to deal with the property as if it was his own.
[68] He also agreed that he signed a letter accepting he was the owner of the property. He then said that he still regarded himself as trustee of 29 Wellington Street. He was shown the RTA document in Ms Cliffe's affidavit. He said that the 38 Lever Street property was a house divided into five apartments. He agreed the monies out of the bond were paid to his Commonwealth Bank account in his own name. The account was used for his personal day to day expenses. He never kept a separate trust statement concerning income from the properties.
[69] Even though his recollection was the documents were in the safe when it was stolen, they could not have been because he later found copies of them. He agreed that prior to 2 June 2000 (the date of the first later declaration) he believed the earlier declarations must have been missing or stolen yet in his affidavit dated 25 February 2014 (exhibit 14) he claimed the earlier declaration with respect to 38 Lever street was tendered to the District Court on 15 September 2000. He had difficulty explaining whether those two propositions could coexist. He then claimed that he had not read the earlier affidavit closely. He said he was in court when the 1989 declaration was tendered to Judge Robin.
[70] He said he had one of the declarations stamped and the other one was stamped by his lawyers. This is in contrast to exhibit 13 where he claimed that he presented both documents to the stamps office. Mr Amos understood that it was necessary for him to prove that the two declarations from 1989 were stamped and that he paid duty on each of them. Despite the error in exhibit 13, he claimed he was a very careful person and read things carefully before signing them.
[71] With respect to the earlier 38 Lever Street declaration which had been tendered in the District Court, he said he made a copy of this but could not say when he made it but he had kept it in papers. I thought he was hesitant when asked to describe where the papers were kept in his house. The search for these documents happened in February 2025.
[72] He was asked about his affidavit (exhibit 15) which attached a damaged receipt from the Commissioner of State revenue. He agreed that this receipt related to the Duties Act rather than the Stamps Act. He agreed that it could not relate to the 1989 declarations. It was suggested that it related to an August 2008 transfer of a property in Wynnum to Property Renovations Pty Ltd and he said he did not know.
[73] With respect to the declaration concerning 29 Wellington Street in exhibit 9, he agreed that the $655 appeared to have been paid on 16 June 1994. He said that his lawyers paid it, and he gave them the money for this. He accepted the word "conv" is next to the figure. He accepted this probably related to conveyance. He claimed though the money was for stamp duty on the declaration of trust. He claimed he could not remember selling a property for $65,425 in mid-1984. He denied appending this notation to the top of the 29 Wellington Street declaration and said this photocopy came to him from his solicitors, Keller Nall and Brown.
[74] With respect to the declaration of trust concerning 38 Lever Street in exhibit 9, he agreed that the Queensland Stamp Act document at the bottom had been placed over the declaration and photocopied. He agreed there was no receipt at the top right-hand corner. He said that the original of the 38 Lever Street Albion declaration had a stamp indorsement similar to the Wellington Street one but the original was now destroyed. He agreed the document copied at the bottom recorded the Stamps office receiving the document from him but nothing more.
[101] Mr Paul Cameron, a costs assessor, in his affidavit[34] swears that the costs assessor has arguably failed to accord procedural fairness. He also swears that the costs assessor breached his obligations by not providing reasons and by overcharging