Colless v Gayler Cleland Towne

[2004] QSC 246

SUPREME COURT OF QUEENSLAND

CITATION:	Colless v Gayler Cleland Towne & Ors [2004] QSC 246
PARTIES:	WILLIAM COLLESS (Plaintiff) v GAYLER CLELAND TOWNE (First Defendant) MACDONNELLS (Second Defendant) FARRELLYS (Third Defendant)
FILE NO/S:	39 of 1995
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING
COURT:	Supreme Court, Cairns
DELIVERED ON:	1 July 2004
DELIVERED AT:	Cairns
HEARING DATE:	20 June 2004
JUDGE:	Jones J
ORDER:	Susan Gail Colless, as Executor and Trustee of the Estate of William Colless be substituted as plaintiff in these proceedings.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE QUEENSLAND – PRACTICE UNDER RULES OF COURT PARTIES– where application filed pursuant to UCPR r 72 (2) for the substitution of the plaintiff party- where substitution made necessary due to plaintiff’s death – whether trustee personal representative of a deceased party may be substituted as the plaintiff in the proceedings
COUNSEL:	Application heard without oral argument
SOLICITORS:	Murphy Schmidt Solicitors for the plaintiff Lindsay Duffy & Co for the first, second and third defendants

1. This is an application pursuant to r 72(2) of the Uniform Civil Procedure Rules (“UCPR”) for the substitution of the plaintiff in these proceedings.

2. The application is made necessary because of the plaintiff’s death by drowning on 6 February 2004 as appears from the copy Death Certificate (Ex MJTC-01). By his will dated 18 June 2002, the plaintiff appointed his wife Susan Gail Colless to be trustee of his estate.

3. Rule 72(2) of UCPR provides expressly that a trustee or personal representative of a deceased party may be substituted as a party in the action.

4. I am satisfied in all the circumstances that it is appropriate that the deceased plaintiff’s personal representative be appointed in the circumstances of this case and I so order.

   Order:

1. Susan Gail Colless, as Executor and Trustee of the Estate of William Colless be substituted as plaintiff in these proceedings.