Freedom of Information – Right to Information File
Soon after my wife and I made the decision was made to start proceedings against Wilson Lawyers and The Body Corporate for Goldieslie Park Community Titles Scheme No 20924 on the advice of our Barrister Mr Tom Somers both Somers and I conducted FOI searches at The Brisbane City Council. We were led to an interview room and were left to peruse the files. The manilla files contained copies of originals with initials of individuals on the front cover with dates that had viewed files previously. It was pointless keeping those records as anyone could scribble an initial. We were looking for the smoking gun, any reference to a promise made by James Noble to the previous owner of our land (lot 1 45 Goldieslie Rd) Mr Raymond Berndt.
We found one letter that has become known as ‘The Berndt Letter’ which was because of a requisition notice produced by the Brisbane City Council prior the development approval. The requisition sought Mr Raymond Berndt’s agreement that he allow his property driveway to be amalgamated into the future property development of lot 2, that he would agree to surrendering his driveway and allow it to be landscaped for a reciprocal easement over the future carriageway (driveway) or common property of the proposed subdivision. The net result of this requisition meant that Raymond Berndt still owned 50 % of the entrance that faced Goldieslie Road. The letter did not limit his access. It stands to reason Berndt is of the opinion he would be able to enter his own property from anywhere along the future private road around the circumference of his own property. He was to be granted the same rights as every other landowner within the future estate.
The original dispute occurred because the Body Corporate under the supervision of the former chairman Mr Rodney Bell refused to provide a reciprocal easement over the Common property or carriageway of the Body Corporate land in approximately August 2004. There was another Easement registered on the registered plan named Easement B that was sold to the owners of the land to the west which was sold for $42,000 in 1988. That was a lot of money in 1988 which soon after the stock market crash in October 1987. What induced the neighbour to pay James Noble $42,000 for an access easement they could never use legally to access Goldieslie Road because it was only 6 metres wide and Raymond Berndt owned 50% of the actual street frontage? Legally the owners of the land to west would be trespassing over Lot 1 triangle shaped land (our land) formally Raymond Berndt’s land. The senior counsel acting for the Body Corporate was Ms. Kylie Downs who had a reputation as being ruthless, she would appear wearing a long trench coat and was formidable. I knew she played dirty, but she was also expensive. She was determined, lacking legal training I thought she was just doing her job. A Royal Commission will reveal her part in the ultimate scheme. I could smell a rat and my instincts knew when she was setting a trap!
Things did not make sense, why was there a dispute and why didn’t James Noble register Raymond Berndt’s easement? We thought it might have been because Raymond Berndt eventually lost mental capacity. Our lawyers then fought tooth and nail to view the Body Corporate records which was hindered at every opportunity by Mr Rodney Bell the then former chairman of the Body Corporate, he was the Property Partner of the largest law firm in Brisbane and his property department represented The Body Corporate for Goldieslie Park Community Titles Schemeand lived in the estate. The motive was money, a dispute is great for business!
By the time Somers and our lawyer Kathleen Dare were able to inspect the Body Corporate files you can imagine they were sanitized. All at our expense!
Approximately 18 months later Somers and I submitted another FOI request to the Brisbane City Council as it had become obvious, we had missed something. That search however was fruitless the files revealed nothing new.
Ultimately approximately two weeks after our application failed in the Court of Appeal on the basis ‘Conditions did not run with the land due to Indefeasible title’ The land title had been issued by the Department of Natural resources it was ultimately set in concrete! Even though the Development Approval had been issued by the Brisbane City Council the Court found we were not entitled to that Easement! It was all a lie!
Soon after those proceedings the Body Corporate for Goldieslie Park Community Titles Scheme under the guidance of their Senior Counsel Ms Kylie Downs, they too sought Summary Judgement 26 October 2012 against our family claiming their expenses etc. Conveniently those same proceedings occurred before Justice Peter Lyons, and it was the first time I appeared before a Supreme Court Justice. When you learn to spa with these individuals you soon realise just how clever / cunning they are! In my heart I trusted them, but my brains were telling me otherwise. I knew Justice Lyons was an expert on Planning and Property law, Ms Kylie Downs and I stood before him, we went through due procedure when I thought I’d quiz him on Section 22B as I then understood the implications of the all-important date 13 June 1987 as Development Approval by the Brisbane City Council after that date was protected by the Integrated Planning Act 1997 it nullified Indefeasible title. The Subdivision GTP 1836 was approved for development 9 July 1987. Justice Peter Lyons looked at me blank faced and told me ‘I am not here to provide you with legal advice’! Fair enough I thought but then I happened to glance across at Ms. Kylie Downs and she smirked, she gave it away, something was off. I looked directly at her before Justice Peter Lyons, and I accused her of skulduggery! To which her face then became stone-faced. I knew something was wrong! Please view Transcript of these proceedings marked ‘REVISED’ It has been sanitized by Lyons.
I had to return to our family home,we had lost everything, but I refused to give in.I thought something would turn up; my instinct was to lodge a ‘leave to Appeal Application to the High Court of Australia’. We had no money however it was not my style to give in.
One evening soon after this devastating loss my sub-conscious woke me at 4 am. I do my best work when I am fast asleep! I needed to obtain the original paperwork which was archived somewhere in a warehouse owned by the Brisbane City Council. I submitted the application 16 October 2012 which you will find on our websitewww.whentheftislegal.orgunder the tab FOI – I received The original file19 February 2013 and ‘Bingo’ the ‘Smoking Gun’ was revealed in all its glory! Missing pertinent documents suddenly appeared. Someone had removed the photocopied versions from the FOI file presented to us in 2008 and 2010. At the time I trusted all those involved.
The original drawings were drawn in colour which highlighted the common property in pink. When these drawing were appraised by Raymond Berndt there was no mention of Easement B there were other documents that exposed the truth including the original ‘Berndt letter’!
In hindsight one realises the letter was carefully crafted by the mischievous lawyer Mr James Noble. The document seamed innocent enough however it boasts a reference number which was odd! It was typed on a plain piece of paper! It was drafted by a not so smart developer. When reading this document, one must bear in mind Noble had the intention of either acquiring the neighbouring landlocked Gallagher property to the west or perhaps selling access to their land.
1) I discovered the original letter address 9 March 1987 that was sent to the Brisbane City Council suggesting they intended to apply for another easementto access land to the west
2) A letter from a Town Planner Mr Ken Todd dated 27 August 1987 representing the owners of the Land locked property to the west addressed to The Town Clerk of the Brisbane City Council
‘Our client has been approached by the developer of this estate for a monetary contribution for the procurement of an interest as a means of access to his land. Physical access to the subject land has been denied since the 1974 flood removed a bridge from the creek crossing to Witton Road. Rates have been levied on the land by Council since that date. But no call has been placed on the Council for the delivery of services or protection of access.
We ask what provisions for access have been required by Council via the subdivision approval or other means which would prompt the request from the neighbouring developer for a monetary contribution from our client’.
3) A letter from the Brisbane City Council Town Clerk E. K. Campbell in reply to Ken Todd Town Planning Consultant dated 11 September 1987
‘The Group Title Subdivision of the adjoining land, described as Lot 2 on Registered land 202855, provides for a common area, being for access purposes. This common area abuts your client’s property. However, I can assure you that the provision of an easement for access purposes in favour of your client’s property has not been included in the conditions attached to the subdivision approval. Furthermore, Council has not otherwise urged the subdivider to negotiate the provision of access from your client’s property through the Common area to Goldieslie Road.’
James Noble Solicitor is a crook he misled both the Gallagher family, the Brisbane City Council, the Department of Natural Resources, Mr Raymond Berndt, and my family has paid the ultimate price, the Queensland Government that disqualified me from the Building Industry for life and destroyed my business’s our marriage and removed my Principals Real Estate Licence via the Justice Department claiming I wasn’t fit and proper person to manage a trust account!