Colston v McMullen - [2011] QCA 164

SUPREME COURT OF QUEENSLAND

CITATION:

Colston v McMullen [2011] QCA 164

PARTIES:

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

FILE NO/S:

Appeal No 9498 of 2010
SC No 12943 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 July 2011

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2011

JUDGES:

Margaret McMurdo P, Fraser JA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where the appellant filed an application seeking the removal of the respondent as the executor and trustee of the estate of Malcolm Arthur Colston, as the executor and trustee of the estate of Dawn Patricia Colston and as the trustee and appointor of the Dawn Colston Estate Trust – where the respondent was successful in an application striking out the appellant’s originating application – where the appellant seeks leave to cause subpoenas to be issued for the production of documents for use on the appeal – where the appellant seeks leave to adduce further evidence at the hearing of the appeal – where all of the material sought was in existence prior to the original hearing – where the assertion that the documents would support the appellant’s contentions is unsupported – where, in the context of application proceedings, there is no obligation for disclosure by either party under the Uniform Civil Procedure Rules 1999 (Qld) – where there had been no application by the appellant for any order that there be disclosure – whether leave should be granted to cause subpoenas to be issued for the production of documents for use on appeal – whether leave should be granted to adduce further evidence on appeal

SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – where appellant filed an application seeking the removal of the respondent as the executor and trustee of the estate of Malcolm Arthur Colston, as the executor and trustee of the estate of Dawn Patricia Colston and as the trustee and appointor of the Dawn Colston Estate Trust – where the respondent was successful in an application striking out the appellant’s originating application – where the appellant alleges the respondent’s failure to disclose and present documents for analysis precluded the appellant from providing supplementary material for use in relation to the originating application – where the appellant alleges the respondent made false and misleading representations relied upon by the Court – where the appellant alleges that counsel for the respondent improperly withheld affidavit material – where the appellant alleges the Court relied upon erroneous information – where none of these arguments were…

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 164
Case: [2011] QCA 164
Decision Date: 15 July 2011

CaseChat Overview and Summary

The appeal in Colston v McMullen involved an application by the appellant to remove the respondent from various roles, including as the executor and trustee of multiple estates. The respondent successfully struck out the appellant’s originating application, leading to an appeal by the appellant. The appellant sought leave to subpoena documents and present new evidence that had not been available during the initial hearing. The court was tasked with determining whether the appellant should be granted leave to subpoena documents and present new evidence on appeal.

The court examined the general principles of appeals, focusing on the admission of fresh evidence and the circumstances under which such evidence could be considered. It noted that the Uniform Civil Procedure Rules 1999 (Qld) did not mandate disclosure in application proceedings, and the appellant had not previously applied for any disclosure order. The court also assessed whether the appellant’s claims of new evidence supporting their contentions were substantiated. The court considered the appellant's allegations that the respondent had failed to disclose documents, made false and misleading representations, and that counsel improperly withheld affidavit material. These arguments had not been raised in the initial proceedings, and the court scrutinised whether they could be considered on appeal.

The court concluded that the appellant had not provided sufficient justification for the admission of new evidence. The court found that the new evidence was available prior to the initial hearing and did not substantiate the appellant's claims. Additionally, the court held that the arguments raised for the first time on appeal, such as the respondent’s alleged failure to disclose documents and misleading representations, were not admissible as they had not been raised at the original hearing. The court determined that the primary judge's order should stand, and dismissed the appeal with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Colston v McMullen [2011] QCA 164
PARTIES:	DOUGLAS BENJAMIN COLSTON (appellant) v BRIAN McMULLEN as executor and trustee of the estate of MALCOLM ARTHUR COLSTON, as executor and trustee of the estate of DAWN PATRICIA COLSTON, and as trustee and appointor of the DAWN COLSTON ESTATE TRUST (respondent)
FILE NO/S:	Appeal No 9498 of 2010 SC No 12943 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	15 July 2011
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2011
JUDGES:	Margaret McMurdo P, Fraser JA and Martin J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – where the appellant filed an application seeking the removal of the respondent as the executor and trustee of the estate of Malcolm Arthur Colston, as the executor and trustee of the estate of Dawn Patricia Colston and as the trustee and appointor of the Dawn Colston Estate Trust – where the respondent was successful in an application striking out the appellant’s originating application – where the appellant seeks leave to cause subpoenas to be issued for the production of documents for use on the appeal – where the appellant seeks leave to adduce further evidence at the hearing of the appeal – where all of the material sought was in existence prior to the original hearing – where the assertion that the documents would support the appellant’s contentions is unsupported – where, in the context of application proceedings, there is no obligation for disclosure by either party under the Uniform Civil Procedure Rules 1999 (Qld) – where there had been no application by the appellant for any order that there be disclosure – whether leave should be granted to cause subpoenas to be issued for the production of documents for use on appeal – whether leave should be granted to adduce further evidence on appeal SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – where appellant filed an application seeking the removal of the respondent as the executor and trustee of the estate of Malcolm Arthur Colston, as the executor and trustee of the estate of Dawn Patricia Colston and as the trustee and appointor of the Dawn Colston Estate Trust – where the respondent was successful in an application striking out the appellant’s originating application – where the appellant alleges the respondent’s failure to disclose and present documents for analysis precluded the appellant from providing supplementary material for use in relation to the originating application – where the appellant alleges the respondent made false and misleading representations relied upon by the Court – where the appellant alleges that counsel for the respondent improperly withheld affidavit material – where the appellant alleges the Court relied upon erroneous information – where none of these arguments were…