SUPREME COURT OF QUEENSLAND
CITATION:
Campbell v Turner & Ors [2008] QCA 126
PARTIES:
WAYNE ALEXANDER CAMPBELL and MARY-ANNE MONICA CAMPBELL
(plaintiffs/appellants)
v
LIONEL JOSEPH JAMES TURNER and ELSIE EDITH TURNER
(first defendants/first respondents)
BOHLE GRAZING PTY LTD ACN 010 552 762
(second defendant/second respondent)
HERBERT SAMUEL TURNER
(third defendant/third respondent)
LYNDEL ISABEL OWENS
(fourth defendant/fourth respondent)FILE NO/S:
Appeal No 11272 of 2007
SC No 97 of 2004DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
30 May 2008
DELIVERED AT:
Brisbane
HEARING DATE:
8 May 2008
JUDGES:
de Jersey CJ, Fraser JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. That the appeal be allowed and that the orders made by the trial judge be set aside.
2. In lieu thereof order that:
a) The first defendants pay the plaintiffs $145,759.81
b) The fourth defendant pay the plaintiffs $111,743.10
c) The claim against the second and third defendants be dismissed.
3. That the parties make written submissions as to costs within ten days and in accordance with paragraph 37A of Practice Direction No. 1 of 2005.
CATCHWORDS:
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – GENERALLY – where the plaintiff asserted an entitlement to an equitable interest on the basis of an alleged expectation created by the defendant – where the expectation was based on a deed as well as conduct and statements made before the deed was executed – where the deed was found to be void by operation of s 8 of the Land Sales Act 1984 (Qld) – where the trial judge accepted the arguments advanced on behalf of the defendants that contended that the deed could not be a source of any expectation giving rise to any equity in the plaintiffs – where the trial judge found that the plaintiffs did not plead a case which excluded reliance upon the deed – whether the plaintiff’s pleadings pleaded a case which excluded reliance upon the deed – whether the plaintiff’s case necessarily relied upon the Land Sales Act 1984 (Qld) as conferring any status upon them
ESTOPPEL – ESTOPPEL IN PAIS – MATTERS AGAINST WHICH ESTOPPEL DOES NOT PREVAIL – STATUTORY PROVISIONS – where s 8 of the Land Sales Act 1984 (Qld) rendered invalid a deed assigning an interest in land – where the plaintiffs attempted to use the deed as a source of an equitable interest in the land – where the defendants argued that the plaintiffs were precluded from raising the estoppel to overcome the effect of the statute – whether the nature of the provision was such as to preclude the existence of the equity for which the plaintiffs contended
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – QUESTIONS NOT RAISED ON PLEADINGS…
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- AGLC
- Campbell v Turner [2008] QCA 126
- Case
- [2008] QCA 126
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the plaintiff's pleadings effectively excluded reliance on the void deed, whether the plaintiff's case necessarily relied on the Land Sales Act to confer any status, and whether the nature of the statutory provision precluded the existence of the equity for which the plaintiffs contended. The court also had to consider whether points and objections not raised at trial could be considered on appeal and if compound interest should be granted as part of the equitable relief for breach of trust.
The court held that the appeal was allowable and that the orders made by the trial judge should be set aside. The court found that the nature of the statutory provision did not preclude the existence of the equity for which the plaintiffs contended. It also held that the plaintiffs were not precluded from raising the estoppel to overcome the effect of the statute. Furthermore, the court ruled that the plaintiffs were not allowed to run the argument on appeal that the defendants' failure to inform them about the inability to proceed with a subdivision was productive of substantial loss. The court ordered that the first and fourth defendants pay the plaintiffs specified amounts, and dismissed the claim against the second and third defendants. The court also directed the parties to submit written submissions regarding costs.
Orders
Orders of the court
1. That the appeal be allowed and that the orders made by the trial judge be set aside.
2. In lieu thereof order that:
a) The first defendants pay the plaintiffs $145,759.81
b) The fourth defendant pay the plaintiffs $111,743.10
c) The claim against the second and third defendants be dismissed.
3. That the parties make written submissions as to costs within ten days and in accordance with paragraph 37A of Practice Direction No. 1 of 2005.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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