Colston v McMullen - [2011] QCA 2

SUPREME COURT OF QUEENSLAND

CITATION:

Colston v McMullen [2011] QCA 2

PARTIES:

DOUGLAS BENJAMIN COLSTON
(appellant/applicant)
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/respondent)

FILE NO/S:

Appeal No 9498 of 2010
SC No 12943 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Judgment; leave to adduce further evidence; order to restrain the retaining of particular counsel and for the further issue of subpoenas

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2011

JUDGES:

Muir JA

ORDER:

1. Application dismissed with costs

2. Within 7 days of 4 February 2011 the applicant file and serve an amended notice of appeal which complies with the requirements of Rule 747 of the Uniform Civil Procedure Rules 1999 (Qld) and which concisely identifies the findings of fact or law of the primary judge alleged to be erroneous

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where appeal proceedings instituted – where applicant sought to stay an order dismissing proceedings – where applicant sought relief in relation to the exercise by the respondent trustee of his duties as trustee – where the applicant sought same relief in different proceedings at the same time – where applicant sought leave to adduce further evidence and restraining the respondent's counsel from acting on appeal – where applicant's notice of appeal asserts primary judge relied on false and misleading evidence – where applicant sought subpoenas of 12 non-parties – whether applicant's conduct constituted an abuse of process – whether court can fetter the exercise of a trustee's discretion

Uniform Civil Procedure Rules 1999 (Qld), r 747

Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485, cited
Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, cited
Geelong School Supplies Pty Ltd v Dean (2006) 227 ALR 612; [2006] FCA 1404, cited
Kallinicos & Anor v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, cited
Watkins v Christian[2009] QCA 101, cited

COUNSEL:

The applicant appeared on his own behalf
G Long SC, with P F Mylne, for the respondent

SOLICITORS:

No appearance for the applicant
McCowans Specialist Lawyers for the respondent

[1] MUIR JA: The applicant applied by originating application filed 12 December 2008 for an order that the respondent be removed as the executor and trustee of the estate of his late father, Malcolm Colston, as the executor and trustee of the estate of his late mother, Dawn Colston, and as the trustee of, and appointor under, the Dawn Colston Estate Trust ("the Trust").

[2] The application was dismissed on 6 August 2010. Consent orders…

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 2
Case: [2011] QCA 2
Decision Date: 4/02/2011

CaseChat Overview and Summary

The case of Colston v McMullen involved an appeal against a decision to dismiss proceedings initiated by the applicant, Colston, against the respondent, McMullen, who was acting as a trustee. The applicant sought a stay of the order dismissing the proceedings, relief in relation to the exercise of the respondent's duties as trustee, leave to adduce further evidence, and a restriction on the respondent's counsel from acting on the appeal. The applicant also sought subpoenas for 12 non-parties and claimed that the primary judge relied on false and misleading evidence.

The court had to determine whether the applicant's conduct constituted an abuse of process and whether it could fetter the exercise of a trustee's discretion. The court examined the applicant's attempts to adduce further evidence and the subpoenas for non-parties, which were seen as attempts to circumvent the dismissal of the original proceedings. The court also considered the applicant's claims about the primary judge's reliance on false evidence and the impact of these claims on the appeal process.

The court found that the applicant's conduct amounted to an abuse of process, as they were attempting to circumvent the dismissal of the original proceedings by seeking to adduce further evidence and subpoena non-parties. The court also held that it could not fetter the exercise of a trustee's discretion. The appeal was dismissed with costs, and the applicant was ordered to file and serve an amended notice of appeal within 7 days of 4 February 2011 that complied with the requirements of Rule 747 of the Uniform Civil Procedure Rules 1999 (Qld) and concisely identified the findings of fact or law of the primary judge alleged to be erroneous.

Orders

Orders of the court

1. Application dismissed with costs

2. Within 7 days of 4 February 2011 the applicant file and serve an amended notice of appeal which complies with the requirements of Rule 747 of the Uniform Civil Procedure Rules 1999 (Qld) and which concisely identifies the findings of fact or law of the primary judge alleged to be erroneous

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 2
PARTIES:	DOUGLAS BENJAMIN COLSTON (appellant/applicant) 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/respondent)
FILE NO/S:	Appeal No 9498 of 2010 SC No 12943 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Judgment; leave to adduce further evidence; order to restrain the retaining of particular counsel and for the further issue of subpoenas
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2011
JUDGES:	Muir JA
ORDER:	1. Application dismissed with costs 2. Within 7 days of 4 February 2011 the applicant file and serve an amended notice of appeal which complies with the requirements of Rule 747 of the Uniform Civil Procedure Rules 1999 (Qld) and which concisely identifies the findings of fact or law of the primary judge alleged to be erroneous
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where appeal proceedings instituted – where applicant sought to stay an order dismissing proceedings – where applicant sought relief in relation to the exercise by the respondent trustee of his duties as trustee – where the applicant sought same relief in different proceedings at the same time – where applicant sought leave to adduce further evidence and restraining the respondent's counsel from acting on appeal – where applicant's notice of appeal asserts primary judge relied on false and misleading evidence – where applicant sought subpoenas of 12 non-parties – whether applicant's conduct constituted an abuse of process – whether court can fetter the exercise of a trustee's discretion Uniform Civil Procedure Rules 1999 (Qld), r 747 Chanel Ltd v F W Woolworth & Co Ltd [1981] 1 WLR 485, cited Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12, cited Geelong School Supplies Pty Ltd v Dean (2006) 227 ALR 612; [2006] FCA 1404, cited Kallinicos & Anor v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, cited Watkins v Christian[2009] QCA 101, cited
COUNSEL:	The applicant appeared on his own behalf G Long SC, with P F Mylne, for the respondent
SOLICITORS:	No appearance for the applicant McCowans Specialist Lawyers for the respondent