SUPREME COURT OF QUEENSLAND
CITATION:
Corbiere & Anor v Dulley & Ors (No 2) [2017] QSC 83
PARTIES:
PAUL HERMAN HENRI CORBIERE AND ANDREW FRANCIS MONK as trustees for THE JEFFERSON LANE PROPERTY TRUST and as executors/trustees of THE WILL OF DUDLEY ERNEST SANDFORD DULLEY
(plaintiffs)
v
BRUCE SANDFORD DULLEY
(first defendant)
YAS YO PTY LTD
(second defendant)
YASMIN LE BERYL DULLEY
(third defendant)
YOLANDE LE AURELIA DULLEY
(fourth defendant)
JACOB CHARLES SANDFORD DULLEY
(fifth defendant)FILE NO/S:
SC No 5581 of 2013
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
16 May 2017
DELIVERED AT:
Brisbane
HEARING DATE:
6 December 2016; supplementary submissions on behalf of the applicant dated 7 December 2016; supplementary submissions on behalf of the first and second respondents dated 7 December 2016
JUDGE:
Burns J
ORDER:
The orders of the court are:
1. Judgment be entered in favour of the plaintiffs with respect to parts of the relief claimed by them in this proceeding, as follows:
(a) It is declared that the net proceeds of sale of the property situated at 105 Jefferson Lane, Palm Beach in the State of Queensland, being the sum of $3,562,993.02, was received by the first defendant for the use and benefit of the beneficiaries of the Jefferson Lane Property Trust established under the will of Dudley Ernest Sandford Dulley, deceased (“the Jefferson Lane Property Trust”);
(b) It is declared that, at all times since the acquisition by the second defendant of the freehold title in and to Lot 4 on Strata Plan 21548 in the local government area of Clarence Valley (“the Yamba Property”), the second defendant has held that property on trust for the plaintiffs as trustees of the Jefferson Lane Property Trust;
(c) Pursuant to s 71 of the Trustees Act 1925 (NSW) and s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), it is ordered that all title in and to the Yamba Property vests forthwith in the plaintiffs as trustees of the Jefferson Lane Property Trust;
(d) It is ordered that the second defendant:
(i) Forthwith transfer its interest in the Yamba Property to the plaintiffs as trustees of the Jefferson Lane Property Trust;
(ii) Forthwith deliver, at its own cost, to the plaintiffs a transfer in registrable form of the Yamba Property in favour of the plaintiffs as trustees of the Jefferson Lane Property Trust;
(iii) Execute and deliver up to the plaintiffs such other documents as are necessary to effect the transfer of its interest in the Yamba Property to the plaintiffs as trustees of the Jefferson Lane Property Trust including, but not limited to, the original certificate or certificates of title (if any);
(iv) Provide such further assistance as may reasonably be required to effect the registration of the transfer of its interest in the Yamba Property to the plaintiffs as trustees of the Jefferson Lane Property Trust including answering any requisitions on title;
(e) It is declared that, at all times since the acquisition…
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- AGLC
- Corbiere v Dulley (No 2) [2017] QSC 83
- Case
- [2017] QSC 83
- Decision Date
CaseChat Overview and Summary
In its reasoning, the court noted that it was not the function of the court to decide disputed questions of fact when determining the application for summary judgment. Instead, the court had to assume the correctness of the facts as presented in the affidavits. The court found that there was no real prospect that the defendants could successfully defend the claims regarding the net proceeds of sale of the Jefferson Lane property, as these proceeds were held in the trust account maintained by one of the defendants' firms. The court also found that there was no real prospect that the defendants could successfully defend the claims regarding the Yamba and Ocean Shores properties, as they had held these properties on trust for the plaintiffs since acquiring them.
The court granted the plaintiffs' application for summary judgment in part, declaring that the net proceeds of sale of the Jefferson Lane property were received by the defendants for the benefit of the trust beneficiaries, that the defendants held the Yamba and Ocean Shores properties on trust for the plaintiffs, and that title to those properties should vest in the plaintiffs as trustees. The court also granted leave for the plaintiffs to amend their claim to include a claim for an order that one of the defendants pay a certain sum to the plaintiffs as trustees of the estate. The application for summary judgment was dismissed in all other respects, and the costs of the application were reserved to the trial. The case was placed on the Self-Represented Litigants’ List, and each party was granted liberty to apply on three days’ notice to the other parties.
Orders
Orders of the court
The orders of the court are:
1. Judgment be entered in favour of the plaintiffs with respect to parts of the relief claimed by them in this proceeding, as follows:
(a) It is declared that the net proceeds of sale of the property situated at 105 Jefferson Lane, Palm Beach in the State of Queensland, being the sum of $3,562,993.02, was received by the first defendant for the use and benefit of the beneficiaries of the Jefferson Lane Property Trust established under the will of Dudley Ernest Sandford Dulley, deceased (“the Jefferson Lane Property Trust”);
(b) It is declared that, at all times since the acquisition by the second defendant of the freehold title in and to Lot 4 on Strata Plan 21548 in the local government area of Clarence Valley (“the Yamba Property”), the second defendant has held that property on trust for the plaintiffs as trustees of the Jefferson Lane Property Trust;
(c) Pursuant to s 71 of the Trustees Act 1925 (NSW) and s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), it is ordered that all title in and to the Yamba Property vests forthwith in the plaintiffs as trustees of the Jefferson Lane Property Trust;
(d) It is ordered that the second defendant:
(i) Forthwith transfer its interest in the Yamba Property to the plaintiffs as trustees of the Jefferson Lane Property Trust;
(ii) Forthwith deliver, at its own cost, to the plaintiffs a transfer in registrable form of the Yamba Property in favour of the plaintiffs as trustees of the Jefferson Lane Property Trust;
(iii) Execute and deliver up to the plaintiffs such other documents as are necessary to effect the transfer of its interest in the Yamba Property to the plaintiffs as trustees of the Jefferson Lane Property Trust including, but not limited to, the original certificate or certificates of title (if any);
(iv) Provide such further assistance as may reasonably be required to effect the registration of the transfer of its interest in the Yamba Property to the plaintiffs as trustees of the Jefferson Lane Property Trust including answering any requisitions on title;
(e) It is declared that, at all times since the acquisition by the third and fourth defendants of the freehold title in and to Lot 504 on deposited Plan 238451 in the local government area of Byron, parish of Billinudgel, county of Rous in the State of New South Wales (“the Ocean Shores Property”), the second defendant has held that property on trust for the plaintiffs as trustees of the Jefferson Lane Property Trust;
(f) Pursuant to s 71 of the Trustees Act 1925 (NSW) and s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), it is ordered that all title in and to the Ocean Shores Property vests forthwith in the plaintiffs as trustees of the Jefferson Lane Property Trust;
(g) It is ordered that the third and fourth defendants:
(v) Forthwith transfer the whole of their interest in the Ocean Shores Property to the plaintiffs as trustees of the Jefferson Lane Property Trust;
(vi) Forthwith deliver, at their own cost, to the plaintiffs a transfer in registrable form of the Ocean Shores Property in favour of the plaintiffs as trustees of the Jefferson Lane Property Trust;
(vii) Execute and deliver up to the plaintiffs such other documents as are necessary to effect the transfer of their interest in the Ocean Shores Property to the plaintiffs as trustees of the Jefferson Lane Property Trust including, but not limited to, the original certificate or certificates of title (if any);
(viii) Provide such further assistance as may reasonably be required to effect the registration of the transfer of their interest in the Ocean Shores Property to the plaintiffs as trustees of the Jefferson Lane Property Trust including answering any requisitions on title;
2. The plaintiffs have leave to amend the Second Amended Claim and Further Amended Statement of Claim to include a claim for an order that the third defendant pay the sum of $21,851.70 to them as trustees of the estate of Dudley Ernest Sandford Dulley;
3. Direct that this proceeding be placed on the Self-Represented Litigants’ List;
4. The costs of and incidental to this application be reserved to the trial;
5. The application for summary judgment is otherwise dismissed;
6. Each party has liberty to apply on the giving of three clear days’ notice to the other parties.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The application for judicial advice proceeded on two written statements of fact to the court which had been prepared on behalf of the executor applicants.[15] The court was required to assume the correctness of those facts for the purpose of deciding that application.[16] This application for summary judgment is, however, fundamentally different; the written statements of fact have no role to play. Instead, the application must be determined, if it can be, on the evidence advanced to the court on affidavit and which is admissible in proof of the various allegations. There is nonetheless one thing both applications have in common; it is not the function of the court when determining either application to decide disputed questions of fact.[15]Trusts Act 1973 (Qld), s 96(1).[16]Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at 95-96, [79]-[81].Consideration Informed by that statement of the applicable principles, I turn now to the parts of the relief claimed by the applicants that are the subject of this application.[17] The background facts as well as the essential features of the pleadings are sufficiently summarised in my previous judgment.[18] [17] That is, the relief claimed in the application for judgment filed on 10 November 2016.[18]Corbiere & Anor v Dulley & Ors [2016] QSC 134 at [5]-[18].The net proceeds of sale of Jefferson Lane The property owned by the deceased at the date of his death and situated at Jefferson Lane, Palm Beach was sold pursuant to a contract of sale entered into on 30 November 2007. The sale price was $3,600,000. For that purpose, the trustees appointed Bruce Dulley, in his capacity as a solicitor and principal of the firm, Bruce Dulley Family Lawyers, to act on behalf of the Jefferson Lane Property Trust in relation to the sale. A deposit of $100,000 was paid by the purchaser, with the balance purchase price after adjustments paid on the date of completion, that is, on 20 December 2007. The net proceeds of sale, being the sum of $3,562,993.02, were then held in the trust account maintained by Mr Dulley’s firm. The executors ask the court to declare that these net proceeds of sale were received by Mr Dulley for the use and benefit of the beneficiaries of the Jefferson Lane Property Trust. There cannot be much doubt about that, and those representing Mr Dulley do not dispute that such a declaration can, and should, be made. There is obvious utility in the grant of this relief and the declaration will accordingly be made.[19][19]A declaratory order may be made, even when unopposed, where the “question is real” and not “abstract or theoretical” and where there is utility in doing so: Re Queensland Police Credit Union Ltd [2013] QSC 273 at [4]-[5] per McMurdo J, citing Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438 per Gibbs J and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 per Mason CJ, Dawson, Toohey and Gaudron JJ.