Colston v McMullen - [2012] QCA 109

SUPREME COURT OF QUEENSLAND

CITATION:

Colston v McMullen & Ors [2012] QCA 109

PARTIES:

DOUGLAS BENJAMIN COLSTON
(appellant)
v
BRIAN MCMULLEN as Trustee and Appointor of the testamentary discretionary trust known as "THE DAWN COLSTON ESTATE TRUST"
(first respondent)
DAVID ANDREW COLSTON
[In his personal capacity and as Trustee of JANFERN SUPER FUND (and as it is also known, JANFERN SUPERANNUATION FUND), Director of JANFERN PTY LTD and Trustee of the DAVID COLSTON FAMILY TRUST]
(second respondent)
JOANNE LITTLE
(third respondent)

FILE NO/S:

Appeal No 7261 of 2011
Appeal No 7263 of 2011
SC No 12108 of 2010
SC No 12109 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2012

JUDGES:

Chief Justice and P Lyons J and Dalton J
Judgment of the Court

ORDER:

That the appeal be allowed;1.

That leave be granted to adduce additional evidence;2.

That the orders made in the Trial Division on 19 July 2011 (other than the refusal to add David Colston and Joanne Little as defendants and the costs order in their favour) be set aside, and that in lieu thereof it be ordered:3.

That the application for removal of the first respondent as trustee be adjourned to a date to be fixed;a.

That the application for removal of the first respondent as trustee be heard as a claim for final relief and leave as necessary is granted so that the application may proceed;b.

That the hearing of the application for removal of the first respondent as trustee be expedited; andc.

That the costs of the hearing on 19 July 2011 otherwise be reserved;d.

That the costs of and incidental to this appeal be reserved.4.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where appellant brought application, inter alia, to remove first respondent as trustee which was refused – where appellant did not, at original application, have evidence to warrant removal – where affidavit material subsequent to original application disclosed that trust accounts had not been prepared for several years and raised other questions as to the making of substantial disbursement from the trust and loans to it by trustee – where questions raised as to liquidity of trust – whether leave be granted to adduce additional evidence – whether appeal should be allowed

Colston v McMullen [2010] QSC 292, considered
Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13, cited

COUNSEL:

The appellant appeared on his own behalf
P F Mylne for the first respondent
The second respondent appeared on his own behalf and on behalf of the third respondent

SOLICITORS:

The appellant appeared on his own behalf
McCowans Specialist Solicitors for the first respondent
The second respondent appeared on his own behalf and on behalf of the third respondent

THE COURT:

Introduction

The appellant is the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Colston v McMullen

Details

AGLC: Colston v McMullen [2012] QCA 109
Case: [2012] QCA 109
Decision Date: 20 April 2012

CaseChat Overview and Summary

The appeal in Colston v McMullen involved the appellant seeking to remove the first respondent from their position as a trustee. The appellant initially applied for this removal but did not present sufficient evidence to warrant it. Subsequent to the initial application, affidavit material revealed that trust accounts had not been prepared for several years, and questions arose regarding substantial disbursements from the trust and loans made to it by the trustee. These revelations raised concerns about the trust's liquidity. The appellant subsequently applied for leave to adduce additional evidence to support their application for the trustee's removal.

The central legal issues revolved around whether the appellant should be granted leave to present further evidence, and if the appeal should be allowed. The court had to determine whether the additional evidence was relevant and whether it could potentially change the outcome of the application for the trustee's removal. The court also needed to consider the procedural fairness in allowing the additional evidence at this stage of the proceedings.

The court allowed the appeal and granted the appellant leave to present additional evidence. The reasoning was that the new evidence, which pertained to the trust's financial management and liquidity, was highly relevant and could significantly impact the decision on the trustee's removal. The court was concerned with ensuring that the trust was managed properly and that the trustee's actions were in line with their fiduciary duties. The court set aside the previous orders, except for those related to the refusal to add certain defendants and the costs order in their favour, and ordered that the application for the trustee's removal be heard as a claim for final relief, expedited, and with necessary leave granted. The costs of the original hearing and the appeal were reserved for further determination.

Orders

Orders of the court

That the appeal be allowed;1.

That leave be granted to adduce additional evidence;2.

That the orders made in the Trial Division on 19 July 2011 (other than the refusal to add David Colston and Joanne Little as defendants and the costs order in their favour) be set aside, and that in lieu thereof it be ordered:3.

That the application for removal of the first respondent as trustee be adjourned to a date to be fixed;a.

That the application for removal of the first respondent as trustee be heard as a claim for final relief and leave as necessary is granted so that the application may proceed;b.

That the hearing of the application for removal of the first respondent as trustee be expedited; andc.

That the costs of the hearing on 19 July 2011 otherwise be reserved;d.

That the costs of and incidental to this appeal be reserved.4.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Colston v McMullen & Ors [2012] QCA 109
PARTIES:	DOUGLAS BENJAMIN COLSTON (appellant) v BRIAN MCMULLEN as Trustee and Appointor of the testamentary discretionary trust known as "THE DAWN COLSTON ESTATE TRUST" (first respondent) DAVID ANDREW COLSTON [In his personal capacity and as Trustee of JANFERN SUPER FUND (and as it is also known, JANFERN SUPERANNUATION FUND), Director of JANFERN PTY LTD and Trustee of the DAVID COLSTON FAMILY TRUST] (second respondent) JOANNE LITTLE (third respondent)
FILE NO/S:	Appeal No 7261 of 2011 Appeal No 7263 of 2011 SC No 12108 of 2010 SC No 12109 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	20 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	20 March 2012
JUDGES:	Chief Justice and P Lyons J and Dalton J Judgment of the Court
ORDER:	That the appeal be allowed;1. That leave be granted to adduce additional evidence;2. That the orders made in the Trial Division on 19 July 2011 (other than the refusal to add David Colston and Joanne Little as defendants and the costs order in their favour) be set aside, and that in lieu thereof it be ordered:3. That the application for removal of the first respondent as trustee be adjourned to a date to be fixed;a. That the application for removal of the first respondent as trustee be heard as a claim for final relief and leave as necessary is granted so that the application may proceed;b. That the hearing of the application for removal of the first respondent as trustee be expedited; andc. That the costs of the hearing on 19 July 2011 otherwise be reserved;d. That the costs of and incidental to this appeal be reserved.4.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where appellant brought application, inter alia, to remove first respondent as trustee which was refused – where appellant did not, at original application, have evidence to warrant removal – where affidavit material subsequent to original application disclosed that trust accounts had not been prepared for several years and raised other questions as to the making of substantial disbursement from the trust and loans to it by trustee – where questions raised as to liquidity of trust – whether leave be granted to adduce additional evidence – whether appeal should be allowed Colston v McMullen [2010] QSC 292, considered Miller v Cameron (1936) 54 CLR 572; [1936] HCA 13, cited
COUNSEL:	The appellant appeared on his own behalf P F Mylne for the first respondent The second respondent appeared on his own behalf and on behalf of the third respondent
SOLICITORS:	The appellant appeared on his own behalf McCowans Specialist Solicitors for the first respondent The second respondent appeared on his own behalf and on behalf of the third respondent