Colston v McMullen - [2011] QCA 227

SUPREME COURT OF QUEENSLAND

CITATION:

Colston v McMullen [2011] QCA 227

PARTIES:

DOUGLAS BRIAN COLSTON
(appellant)
v
BRIAN McMULLEN as executor and administrator (by representation) of the estate of MALCOLM ARTHUR COLSTON, as executor and administrator of the estate of DAWN PATRICIA COLSTON and as trustee and appointor of the DAWN COLSTON ESTATE TRUST
(respondent)

FILE NO/S:

Appeal No 3549 of 2011
Appeal No 3550 of 2011
SC No 12108 of 2010
SC No 12109 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeals

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 September 2011

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2011

JUDGES:

Chesterman JA and Margaret Wilson AJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

In Appeal No 3549 of 2011:
Appeal dismissed with costs.

In Appeal No 3550 of 2011:
Appeal dismissed with costs.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – where the appellant’s principal claim in relation to action 12108 of 2010 was that the respondent had made no determination in respect of the distribution of income for any accounting period since the year ended 30 June 2004 – where the appellant sought an order, in action 12109 of 2010, that the estate of the late Malcolm Colston be administered and an account taken of the administration against the respondent on the basis of wilful default – where the appellant sought the same orders with respect to the estate of Dawn Colston – where the respondent filed an application in each proceeding for orders that parts of each statement of claim be struck out – where the primary judge ordered that several paragraphs be struck out in each statement of claim – where the appellant has appealed against the abridgement of the statements of claim – whether the orders of the primary judge should be set aside

Uniform Civil Procedure Rules 1999 (Qld), r 670, r 671(h),
r 772

Mbuzi v Hall& Ors [2010] QCA 356, cited
Melville v Craig Nowlan & Associates Pty Ltd (2001) 54 NSWLR 82; [2002] NSWCA 32, cited

COUNSEL:

The appellant appeared on his own behalf
P F Mylne for the respondent

SOLICITORS:

The appellant appeared on his own behalf
McCowans Specialist Lawyers for the respondent

CHESTERMAN JA: The applicant’s father, Malcolm Arthur Colston, died on 23 August 2003. His will dated 28 May 2000 appointed his wife, the applicant’s mother, Dawn Patricia Colston to be executor and trustee of his will, which left “an equal share of any moneys which I have advanced to Janfern Proprietary Limited (a family company) and which are available in cash as at the time of my death and one ordinary share each in Janfern …” to his two sons, the appellant and his brother. As well he left each of his sons an equal entitlement to the shares in what was described as “a modest share portfolio”. An identified…

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 [2011] QCA 227
Case: [2011] QCA 227
Decision Date: 9 September 2011

CaseChat Overview and Summary

The appeal concerns the dispute between the appellant, who is a beneficiary of the estates of Malcolm and Dawn Colston, and the respondent, who is the executor of those estates. The appellant's grievances revolve around the respondent's alleged failure to determine the distribution of income for any accounting period since the financial year ending 30 June 2004, and the appellant's request for an order that the estates be administered and for an account to be taken against the respondent due to alleged wilful default. The respondent sought to have parts of the appellant's statements of claim struck out, which the primary judge granted. The appellant has appealed the primary judge's decision to strike out parts of the statements of claim in two separate proceedings.

The central legal issues before the court were whether the primary judge's orders to strike out certain paragraphs from the appellant's statements of claim were justified. Specifically, the court had to consider whether the statements of claim contained allegations that were irrelevant, scandalous, or otherwise improper, or if they failed to disclose a reasonable cause of action. The court also had to determine if the primary judge's orders were an appropriate exercise of judicial discretion.

The court found that the primary judge's orders to strike out parts of the statements of claim were appropriate. The court determined that the appellant's claims contained allegations that were not relevant to the issues at hand and did not disclose a reasonable cause of action. The court held that the primary judge had exercised their discretion correctly in striking out the paragraphs in question, and therefore, the appeals were dismissed with costs awarded to the respondent.

The court dismissed the appeals and confirmed the primary judge's orders. The appeals were dismissed with costs awarded to the respondent in both Appeal No 3549 of 2011 and Appeal No 3550 of 2011.

Orders

Orders of the court

In Appeal No 3549 of 2011:

Appeal dismissed with costs.

In Appeal No 3550 of 2011:

Appeal dismissed with costs.

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 [2011] QCA 227
PARTIES:	DOUGLAS BRIAN COLSTON (appellant) v BRIAN McMULLEN as executor and administrator (by representation) of the estate of MALCOLM ARTHUR COLSTON, as executor and administrator of the estate of DAWN PATRICIA COLSTON and as trustee and appointor of the DAWN COLSTON ESTATE TRUST (respondent)
FILE NO/S:	Appeal No 3549 of 2011 Appeal No 3550 of 2011 SC No 12108 of 2010 SC No 12109 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeals
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 September 2011
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2011
JUDGES:	Chesterman JA and Margaret Wilson AJA and North J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	In Appeal No 3549 of 2011: Appeal dismissed with costs. In Appeal No 3550 of 2011: Appeal dismissed with costs.
CATCHWORDS:	SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – where the appellant’s principal claim in relation to action 12108 of 2010 was that the respondent had made no determination in respect of the distribution of income for any accounting period since the year ended 30 June 2004 – where the appellant sought an order, in action 12109 of 2010, that the estate of the late Malcolm Colston be administered and an account taken of the administration against the respondent on the basis of wilful default – where the appellant sought the same orders with respect to the estate of Dawn Colston – where the respondent filed an application in each proceeding for orders that parts of each statement of claim be struck out – where the primary judge ordered that several paragraphs be struck out in each statement of claim – where the appellant has appealed against the abridgement of the statements of claim – whether the orders of the primary judge should be set aside Uniform Civil Procedure Rules 1999 (Qld), r 670, r 671(h), r 772 Mbuzi v Hall& Ors [2010] QCA 356, cited Melville v Craig Nowlan & Associates Pty Ltd (2001) 54 NSWLR 82; [2002] NSWCA 32, cited
COUNSEL:	The appellant appeared on his own behalf P F Mylne for the respondent
SOLICITORS:	The appellant appeared on his own behalf McCowans Specialist Lawyers for the respondent