Cordes & Anor v Dr Peter Ironside Pty Ltd & Ors [2009] QCA 192

[2009] QCA 192 COURT OF APPEAL CHESTERMAN JA Appeal No 5509 of 2009 SC No 3747 of 2008 LAUREN KAY GEORGE and ALEXANDER GEORGE Appellant (Not party to appeal/ Plaintiff) and DR PETER IRONSIDE PTY LTD Respondent and NATIONAL AUSTRALIA BANK Respondent/Defendant and WILLIAM FLETCHER Respondent/Third Party and PETER IRONSIDE (Not Party to Appeal) BRISBANE DATE 14/07/2009 JUDGMENT CHESTERMAN JA: The parties to this application are involved in complicated and protracted litigation in this Court and in the Federal Court. The primary dispute concerns the title to a house property in Moggill. Its description is, I think, Lot 13 on SP145714, County of Stanley, Parish of Moggill, Title reference 50440445. The fourth respondent is the applicant's trustee in bankruptcy. Ms George's bankruptcy has been extended to a date in 2014 on the application of the trustee. -- 1 of 4 -- 2 Ms George contends that the property in which she lives is held by her on trust for her son and does not form part of her bankrupt estate. On 9 February 2009, a declaration was made in the Federal Magistrates Court that the land at Moggill vested in the fourth respondent as the trustee of the bankrupt estate subject to a mortgage in favour of the third respondent, the National Australia Bank Ltd. The fourth respondent trustee is presently the registered proprietor of the land. It became so pursuant to an agreement with the former registered proprietor, the first respondent, Dr Peter Ironside Pty Ltd. The declaration and the other orders made by the Federal Magistrate were stayed by order of Justice Collier in the Federal Court on 25 March last, pending an appeal from the Federal Magistrates Court to the Full Federal Court. In the meantime, Ms George commenced proceedings in this Court, seeking in effect declarations that she holds the house property as trustee for her infant son. I think he is an infant son. Justice Lyons heard arguments and on 27 April this year, determined that the Supreme Court has no jurisdiction to embark upon the applicant's dispute, that being the subject to exclusive jurisdiction in the Federal Court, and stayed the applicant’s action permanently. Justice Lyons also ordered that a caveat lodged over the land by Ms George be removed, but subject to an undertaking by the fourth respondent, the trustee, in these terms; that he would not transfer, dispose of or otherwise adversely deal to the detriment of the plaintiff with the land, other than in accordance with and not in a manner inconsistent with any order of the Federal Magistrates Court or of the Federal Court. -- 2 of 4 -- 3 Ms George has applied to this Court for a stay of the order removing the caveat pending her appeal to the Court of Appeal against Justice Lyons' order that her action in this Court be forever stayed. A problem with the application is that upon the removal of the caveat, the land was transferred to the fourth respondent, the trustee. Ms George submits that I should, to protect her interest, as claimant of the land as trustee pending her appeal, order that it be retransferred back to the first respondent, Dr Peter Ironside Pty Ltd. A problem with that course is that the company does not want the land transferred back to it, is content to abide by the agreement it made with the fourth respondent to transfer the land to it as trustee in bankruptcy. It is said to me - much has been said, that is hotly contested - it is said to me that ownership of the land entails a number of obligations, one being the requirement to pay the National Australia Bank Limited monies due and as on a monthly basis, under the mortgage over the land. The first respondent does not wish to be burdened with that obligation. Ms George says that she would offer an indemnity to the company in respect to the obligations it would incur should the land be transferred back to it against its wishes, but she is a bankrupt and I can't see the value of any such offer of indemnity. The real point is, I think, that the applicant's position is completely, or if not completely, then very adequately protected by the undertaking given to the Court when Justice Lyons ordered the removal of the caveat. The trustee, an officer of the Court, has undertaken that he will not deal with the land other than in accordance with orders of the Federal Court and the Federal Magistrates Court, to which the dispute of ownership of the land has been committed. -- 3 of 4 -- 4 I therefore order that the applicant's application for stay of the enforcement of the judgment be dismissed. ... CHESTERMAN JA: Although Ms George appears for herself with the customary disadvantage of a litigant in person, it does seem to me that the application for the stay was misconceived. It has put the respondents to expense in resisting it and I think the appropriate order is that the applicant for the stay pay the respondents' costs of the application to be assessed on the standard basis. -- 4 of 4 --