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[2000] QSC 232
procedural. Time limited by Order 9 of White J's 16 May 2000 order was extended to 5 July 2000. The operation of Orders 4(c), 4(d), 4(e) and 4(f) was stayed until determination of the application filed on 5...
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The court did not decide who was entitled to what share of the property proceeds. It decided that the late challenge should be allowed to proceed because the absent party's physical absence could bring the case within the relevant procedural rule, and the dispute raised factual questions that could not be resolved on affidavit. The court extended time and temporarily stopped specified steps affecting the sale proceeds.
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1,936 words · generated 02/10/2026
The judgment concerns a procedural application arising from an earlier order for the sale of co-owned property. On 16 May 2000, White J made orders on an application under s 38 of the Property Law Act 1974 (Qld), providing for property owned as tenants in common to be vested in a trustee for sale ([1]). The order included provisions about the sale and distribution of proceeds.
The person who later sought to challenge part of that order was not present at the original hearing. On the morning of that hearing, she contacted the Registry and faxed a letter seeking an adjournment. The letter said she had learned of the matter only the previous Thursday, disputed statements in the application, and said she was waiting for documents from the local authority and the Commonwealth Bank ([2]). White J was aware of the letter. Documents had been served at about 6.30 pm on the Wednesday before the hearing, but were left on the front step after the recipient did not open the screen door to accept them ([3]).
White J made the orders sought, considering it almost inevitable that statutory trustees for sale would be appointed and that an adjournment to obtain unspecified documents would be oppressive in the circumstances. White J gave liberty to apply to set aside the order within seven days ([4]). The later application was filed on 5 July, more than six weeks after the order was served, and sought to set aside Order 4 and substitute an order producing a different distribution of the sale proceeds ([5]).
Mackenzie J considered whether the application could proceed under r 667(2)(a) of the Uniform Civil Procedure Rules (UCPR), which the applicant said permitted the court to set aside an order made in a party's absence ([6]). The judgment does not resolve the substantive dispute about contributions, ownership interests or distribution. Its orders are procedural: time was extended to 5 July, certain parts of White J's order were stayed pending determination of the application, and costs were reserved ([15]).
There is a party-description inconsistency in the supplied judgment text. The heading names Joanne Patricia Sproule as applicant and Lorene Enid Long as respondent. Paragraph [1] calls Long the applicant in the present proceedings, while the appearances and the final orders appear to use the heading's party labels. This analysis preserves that inconsistency rather than treating it as resolved.
The first issue was the meaning of “absence” in UCPR r 667(2)(a). Mackenzie J said no authority had been provided on the provision's meaning and that the court's own research found little ([6]). The judgment therefore considered Wilkinson v Wilkinson (1963) P 1, an English case concerning a similar provision. As described by Mackenzie J, the judges in Wilkinson treated absence as physical absence. The judgment notes that the case differed because the party there had not been given notice, whereas the party before Mackenzie J had proper notice ([7]–[8]).
Mackenzie J did not treat notice as necessarily decisive against the existence of power. If Wilkinson's reasoning applied, physical non-attendance could be enough to engage the power, while the circumstances, including notice, would inform the discretion about whether to exercise it ([8]). This was a provisional procedural conclusion, not a final ruling setting aside White J's orders.
The court also considered the substance of the proposed challenge at a preliminary level. The applicant said the relief sought at the original hearing did not reflect the parties' relative contributions to the property or possibly the nature of the transaction by which the tenancy in common was created. The proposed order was said to produce an appropriate result ([9]). Mackenzie J noted that no specific denial had been filed in response to the essential facts raised in the applicant's material, despite the issue being raised at the hearing ([9]). The judgment also recognised that some of the applicant's allegations were unusual, but said they were not, as then presented, fatal to the basics of the claim ([10]).
A key reason not to strike out the application was that the events surrounding creation of the tenancy in common raised factual questions that could not be resolved on affidavit ([11]). This meant the court did not consider it appropriate, at that stage, to dispose of the proposed challenge without further consideration.
The applicant's delay counted against her. Mackenzie J said her failure to attend the original hearing caused the problem, and that no real attempt had been made to explain why she did not apply promptly. The suggestion that White J's handwritten addendum granting liberty to apply was difficult to read was considered weak ([12]). Even so, the court concluded that, in all the circumstances, the parties' respective entitlements should be litigated or, perhaps more sensibly given the litigation costs and property value, mediated ([12]).
The court used the alternative procedural course sought at the hearing: extending the time to apply. It also stayed steps relating to disposal of the proceeds until the dispute was finalised. The stay included Order 4(e), because the original order contemplated payment of assessed costs from the sale proceeds. Mackenzie J expressly said this did not indicate a view about whether the original costs order should ultimately be disturbed ([13]).
This judgment is a single procedural decision, and its text does not establish a broad account of the law before or after it. Mackenzie J recorded that there was little authority on the meaning of “absence” in the relevant context and considered Wilkinson v Wilkinson as an analogy ([6]–[8]). The judgment's contribution, on its face, is its case-specific reasoning that physical absence may be enough to engage the rule even where the absent party had notice, with notice and the surrounding circumstances relevant to discretion ([8], [11]).
The judgment does not state that every order made when a party is physically absent should be set aside. It distinguishes the existence of power from the question whether that power should be exercised. The court also considered the applicant's failure to attend and her delay in seeking relief, as well as the asserted injustice and factual questions that could not be resolved on affidavit ([8]–[12]).
The outcome was not a final setting aside of the earlier order. Rather, the court extended time and stayed specified provisions pending determination of the application filed on 5 July ([15]). The judgment does not specify the eventual outcome of that application or describe a change to the underlying law following this decision.
At [8], Mackenzie J said that if Wilkinson's reasoning applied, the fact that the applicant had notice “would not be decisive against the existence of power” under r 667(2)(a). In plain English, notice did not necessarily prevent the court from treating the order as one made in the party's absence. The next sentence is important: whether to use the power was a discretionary question.
At [11], Mackenzie J said that the facts surrounding creation of the tenancy in common raised questions “which cannot be resolved on affidavit.” In plain English, the court considered that written statements alone were not enough to resolve those factual disputes at this stage. That supported letting the application continue rather than striking it out.
At [12], the judge acknowledged both the applicant's responsibility for failing to attend and her lack of a convincing explanation for not applying sooner. Despite those points, Mackenzie J considered that it was in the interests of justice for the parties' respective entitlements to be addressed, by litigation or possibly mediation. This shows the balancing reflected in the decision: procedural default mattered, but did not end the inquiry.
At [13], Mackenzie J said a stay of proceedings relating to disposal of the sale proceeds was appropriate while the matter was finalised. The judge specifically included the provision for payment of assessed costs from the proceeds, while making clear that this did not express a view on whether the costs order should later be changed. In plain English, the interim stay preserved the position but did not decide the final treatment of costs.
The judgment is most directly relevant to a procedural situation with these features: an order was made when a party was physically absent; that party seeks to rely on a rule allowing an order made in a party's absence to be set aside; and there is a question whether prior notice of the hearing prevents the rule from applying. Mackenzie J's reasoning indicates that notice may not be decisive about the existence of power, while remaining relevant to the court's discretion ([7]–[8]).
It may also be relevant where a party has missed a deadline to apply for relief, but the proposed challenge raises material factual questions that the court considers unsuitable for resolution on affidavit. In this case, the court considered both the delay and the absence of a real explanation, but also considered the claimed injustice and unresolved circumstances surrounding the creation of the tenancy in common ([9]–[12]).
The case should not be read as determining that physical absence alone guarantees relief. Mackenzie J treated the question as one involving both jurisdiction and discretion, and the orders ultimately made were an extension of time and a temporary stay, not a final reversal of White J's orders ([8], [13], [15]).
The supplied judgment contains no account of later decisions considering JP Sproule v LE Long. It identifies and discusses Wilkinson v Wilkinson (1963) P 1, but it does not cite any later Queensland or Australian cases applying its reasoning. On the material available here, the subsequent treatment of this judgment cannot be determined.
For research purposes, the point to verify against an authorised case database is whether later courts have adopted, limited or distinguished Mackenzie J's reading of “absence” under r 667(2)(a), particularly where a party had notice but did not attend. No claim about that later history can be made from this judgment alone.
The decision leaves the substantive dispute unresolved. It does not determine the parties' respective entitlements, the appropriate distribution of sale proceeds, or whether the original costs order should be disturbed ([9], [13]). Those questions were left for the application filed on 5 July.
It also does not finally decide the legal reach of “absence” under r 667(2)(a). Mackenzie J applied Wilkinson as support for the view that physical absence could engage the jurisdiction, but described the application of that reasoning to this situation conditionally ([8], [11]). The judgment does not set out a comprehensive test for the discretion to set aside an order or specify which circumstances should carry what weight.
The procedural reasons for the applicant's absence and delay remained relevant matters. The judgment records that she sought an adjournment on the hearing morning, had notice, did not attend, and did not adequately explain the later delay ([2], [8], [12]). It does not decide how those matters would ultimately be weighed against the asserted injustice after the factual issues were explored.
Finally, Mackenzie J contemplated that directions might be agreed or sought separately, and noted that any directions order could, if necessary, include an order under UCPR r 14 ([14]). The judgment does not record whether directions were later made, whether the parties mediated, or how the 5 July application was ultimately resolved.
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[1] MACKENZIE J: On 16 May 2000 White J made orders upon an application pursuant to s 38 of the Property Law Act 1974 that property owned as tenants in common by the applicant and the respondent be vested in a trustee for sale. The applicant in the present proceedings, Lorene Enid Long, ("the present applicant"), seeks to set aside order 4 of the orders and seeks an alternative order in substitution. Also filed by leave on the day of the hearing was an application for extension of time within which application to set aside could be made and for a stay of orders 4(c),(d),(e), and (f) of White J's order until the determination of the application filed on 5 July 2000.
[2] The present applicant did not attend the hearing in which the order was made which was on a Tuesday. However, she phoned the Registry and later faxed a letter on the morning of the hearing in which she requested an adjournment on the basis that she had no knowledge of the matter until the previous Thursday. She also alleged that there were untrue statements in the application and that the present respondent had refused to negotiate a dissolution of joint ownership or sign a contract for sale of her share. The letter stated that she had requested copies of documents from the local authority and the Commonwealth Bank in Warwick but had not received them. She alleged that she believed the information was kept from her so that the application could be heard in her absence. It is apparent from White J's reasons that she was aware of the letter.
[3] Documents relating to the application were in fact served at about 6.30 pm on the Wednesday before the application was heard, but had to be left on the front step because the present applicant refused to open the screen door to accept the documents.
[4] White J's reasons show that she decided to make the orders sought in the application, concluding that it was "almost inevitable that statutory trustees for the sale of this land would be made and because the applicant is not a person of any great means it would be oppressive should the matter be adjourned so that the respondent could bring some unspecified documents into court which might relate to the use of the property for tourist purposes". Properly, she gave liberty to the present applicant to apply to set aside the order within seven days.
[5] The present applicant did not avail herself of that opportunity within the prescribed time. Belatedly, on 5 July 2000, over six weeks after the order of White J was served, an application to set aside order 4 of the order and substitute an order making a different distribution of the proceeds of sale was filed.
[6] The application is said to be founded on r 667(2)(a) UCPR which permits the court to set aside an order at any time if made in the absence of a party. I was referred to no authority on the meaning of the word "absence" in such a context and my own researches found little.
[7] In Wilkinson v Wilkinson (1963) P 1, a case where a party had not been given notice that the matter was to be heard, Ormerod LJ held that a similar provision in the English Matrimonial Causes Act should be construed as meaning that physical absence was "absence" (p 7). Willmer LJ said (p 15) that "absence" was the opposite of physical presence and that a person could apply to have a decree reversed provided he furnished a satisfactory reason for his absence. Danckwerts LJ (p 24) said that "absence" could only mean "physical absence". He said it then became a matter for the discretion of the court whether the decree should be reversed.
[8] The factual situation in Wilkinson differed from that in the present case since here the present applicant had proper notice that the matter was to be heard. However, if the reasoning in Wilkinson is applicable to the present case that fact would not be decisive against the existence of power under r 667(2)(a) to set aside an order. It would be a discretionary matter going to the question whether the power should be exercised.
[9] A further factor in the present case is that the present applicant claims she will suffer injustice if White J's order stands. The relief sought in the application before White J, which was not opposed at the time the order was made, and which White J had no reason to question is said not to reflect the relative contributions of the applicant and the respondent in relation to the property or, perhaps, the nature of the transaction in which the tenancy in common was created. It is submitted that the form of order sought in the application of 5 July achieves an appropriate result. The fact that there was no specific denial of the essential facts put forward by the present applicant in the present respondent's material was adverted to during the hearing before me. No attempt was made to put in any such material despite that matter having been raised.
[10] It must be said that in some respects the present applicant has made allegations which are unusual, but they are, as they stand, not fatal to the basics of her claim.
[11] The issue of the events surrounding the creation of the tenancy in common raise factual questions which cannot be resolved on affidavit. Because Wilkinson supports the view that the present applicant's physical absence from the initial proceedings may be sufficient to trigger jurisdiction to set the order aside has the result that I am not prepared to find that the application should be struck out.
[12] The present applicant's failure to attend the original hearing is the cause of the problem, and no real attempt to explain why she did not apply promptly to set aside the order has been attempted. The suggestion that the hand-written addendum giving leave to apply is difficult to read is of little cogency. However, in all the circumstances as they appear to me, it is in the interests of justice to have the question of the respective entitlements of the parties litigated or, perhaps more sensibly in view of the costs of litigation and the value of the property, mediated.
[13] Resolution of the matter can best be achieved in my view by adopting the alternative sought in the application read by leave of extending the time in which to apply for a variation of White J's order. It follows that a stay of proceedings relating to the disposal of the proceeds of the sale until the matter is finalised is appropriate. This necessarily includes order 4(e) of White J's order since payment of assessed costs of and incidental to the original application is envisaged from the proceeds of the sale. Nothing said in this regard indicates a view as to whether the original costs order ought to be disturbed.
[14] It was foreshadowed that in the event that the application was allowed to proceed the making of directions ought to follow. If the parties can agree on such directions and present me with a draft signed by the respective legal representatives I will make an order in those terms. Otherwise a separate application for directions will need to be made. If it is considered necessary, that order may include an order under r 14 UCPR.
[15] The orders made at this time are as follows:
1. That the time limited by Order 9 of the order of White J made on 16 May 2000 be extended to 5 July 2000.
2. That the operation of Orders 4(c) 4(d) 4(e) and 4(f) of that order be stayed until determination of the application filed on 5 July 2000, or further order.
JP Sproule
LE Long [2000] QSC 232
Time limited by Order 9 of White J's 16 May 2000 order was extended to 5 July 2000. The operation of Orders 4(c), 4(d), 4(e) and 4(f) was stayed until determination of the application filed on 5 July 2000 or further order. Costs were reserved.