Corbiere v Qpcu Limited - [2018] QSC 32

SUPREME COURT OF QUEENSLAND

CITATION:

Corbiere & Another v QPCU Limited [2018] QSC 32

PARTIES:

PAUL HERMAN HENRI CORBIERE AND ANDREW FRANCIS MONKS (AS TRUSTEES OF THE JEFFERSON LANE PROPERTY TRUST AND AS EXECUTORS OF THE WILL OF DUDLEY ERNEST SANDFORD DULLEY, DECEASED)

(Applicant)

v
QPCU LIMITED (ACN 087 651 036)

(Respondent)

FILE NO/S:

BS No 5459 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 February 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 November 2017

JUDGE:

Lyons SJA

ORDERS:

I will hear the parties as to the form of the orders and as to costs.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – UNDERTAKING IN COURSE OF LEGAL PROCEEDING – implied undertaking to not use documents obtained from the defendant as a result of compulsory disclosure for a purpose other than for which those documents were provided – where the plaintiffs/applicants obtained documents by disclosure pursuant to rule 242 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiffs/applicants commenced proceedings on the basis of information obtained in disclosure and information already available – where after filing the claim the plaintiffs/applicants realised some material may not be before the court – whether the plaintiffs/applicants should be released from their implied undertaking

Esso Australia Resources Limited and Ors v Plowman (1995) 183 CLR 10

Forty Two International Pty Ltd v Barnes [2010] FCA 397

Hearne v Street (2008) 235 CLR 125

Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 238

Miller v Scorey [1996] 1 WLR 1122

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Uniform Civil Procedure Rules 1999 (Qld) r 242

COUNSEL:

P G Bickford for the applicants

P K O’Higgins for the respondent

SOLICITORS:

Clayton Utz for the applicants

Minter Ellison for the respondent

The current applications

The plaintiffs/applicants (the Trustees) seek orders that they be released from their implied undertaking not to use documents obtained from the defendant in another proceeding as a result of compulsory disclosure, for a purpose other than that for which those documents were provided.[1]
[1] Hearne v Street (2008) 235 CLR 125 at [96].
The defendant (whom I shall refer to as QBank) cross applies for the current proceedings to be struck out as an abuse of process due to the Trustees’ breach of their implied undertaking. Alternatively, QBank seeks orders that the proceedings be permanently stayed.
Background
The Trustees were appointed as Executors and also the Trustees of three property Trusts established pursuant to the Will of the late Dudley Ernest Sandford Dulley who died in 1991. Dudley Dulley was a bookmaker and he left an estate, the majority of which was comprised of two real properties. Relevant to these proceedings is the property at Jefferson Lane, Palm Beach. A testamentary trust titled the ‘Jefferson Lane Property Trust’ was established pursuant to the Will and the plaintiffs are…

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.

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Details

Case: [2018] QSC 32
Decision Date: 28 February 2018

CaseChat Overview and Summary

The case of Corbiere v Qpcu Limited involved the Trustees of the Jefferson Lane Property Trust, represented by the plaintiffs, who brought proceedings against QBank, the defendant, over allegations relating to the sale of a property and the handling of the proceeds. The Trustees sought to recover the proceeds of the sale of the property, alleging that Bruce Dulley, the deceased's son and a solicitor, had misappropriated the funds for his personal benefit. QBank cross-applied for the proceedings to be struck out or permanently stayed on the basis that the Trustees had breached an implied undertaking not to use documents obtained from QBank for a purpose other than that for which they were provided.

The primary legal issue before the court was whether the Trustees had breached their implied undertaking by using documents obtained from QBank in the course of the legal proceedings for a purpose other than that for which they were provided. Specifically, the court had to determine if the Trustees should be released from their implied undertaking given that they realised some material might not be before the court after filing the claim.

In its reasoning, the court considered the principles governing implied undertakings in the context of compulsory disclosure under the Uniform Civil Procedure Rules 1999 (Qld). The court noted that while there was an implied undertaking to not use documents obtained from the defendant for any purpose other than that for which they were provided, the circumstances in which the undertaking might be discharged were not well-defined. The court found that the Trustees had not acted in bad faith and that there were no circumstances suggesting that the Trustees had deliberately breached their undertaking. Therefore, the court ruled that the Trustees should be released from their implied undertaking.

Pending further submissions on the form of orders and costs, the court indicated that it would hear the parties on these issues.

Orders

Orders of the court

I will hear the parties as to the form of the orders and as to costs.

Background

Background to the litigation

The defendant (whom I shall refer to as QBank) cross applies for the current proceedings to be struck out as an abuse of process due to the Trustees’ breach of their implied undertaking. Alternatively, QBank seeks orders that the proceedings be permanently stayed.Background The Trustees were appointed as Executors and also the Trustees of three property Trusts established pursuant to the Will of the late Dudley Ernest Sandford Dulley who died in 1991. Dudley Dulley was a bookmaker and he left an estate, the majority of which was comprised of two real properties. Relevant to these proceedings is the property at Jefferson Lane, Palm Beach. A testamentary trust titled the ‘Jefferson Lane Property Trust’ was established pursuant to the Will and the plaintiffs are Trustees of the Jefferson Lane Property Trust. The deceased’s son, Bruce Dulley, who is a solicitor, received a life interest in the Jefferson Lane Property pursuant to the Will and his three children are equal remaindermen of the property. As the Palm Beach land was vacant land and not generating any income it was decided between Bruce Dulley and the Trustees that the property would be sold. It was also decided that Bruce Dulley in his capacity as a solicitor would handle the transactions associated with the Jefferson Lane Property Trust. The Jefferson Lane Property was sold on 20 December 2007 for $3,515,080.52. It is alleged that without the knowledge of the plaintiffs, Bruce Dulley invested the proceeds of the sale of the Jefferson Lane Property into two accounts in the names of the plaintiffs as “Legal Personal Representatives of the Estate of DES Dulley deceased” held by QBank in 2008. The allegations are that the accounts were structured so that Bruce Dulley directly received the interest on the money invested. It is also alleged that Bruce Dulley made a number of withdrawals from the accounts without the knowledge or approval of the plaintiffs and also used money withdrawn from the QBank accounts to purchase two properties in New South Wales in his name and his children’s names. Bruce Dulley has admitted in the primary proceedings that he withdrew various amounts from those accounts in 2008, 2009, 2010 and 2011. The affidavit of Andrew Deane sworn 13 November 2017 deposes that the signature on all of the authorities at QBank is that of Bruce Dulley and that the Trustees had no dealings with QBank until June 2011 when they were contacted by the bank to provide an authority for Bruce Dulley to operate the account and for their tax file numbers. The Trustees maintain that they have never authorised the disbursement of trust funds and no account was opened in the name of the Trustees until December 2011. On 13 December 2011 the Trustees attended with Bruce Dulley at QBank and an account was opened in the name of the Trustees. Over the ensuing 12 month period the plaintiffs became aware of the withdrawals from the account by Bruce Dulley. The Trustees ultimately initiated proceedings against Bruce Dulley in 2013. As part of those proceedings, the Trustees requested, pursuant to r 242 of the UCPR, disclosure of records held by QBank in relation to the two accounts opened and accessed by Bruce Dulley. QBank provided documents to the plaintiffs on 6 and 12 June 2014.

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:	Corbiere & Another v QPCU Limited [2018] QSC 32
PARTIES:	PAUL HERMAN HENRI CORBIERE AND ANDREW FRANCIS MONKS (AS TRUSTEES OF THE JEFFERSON LANE PROPERTY TRUST AND AS EXECUTORS OF THE WILL OF DUDLEY ERNEST SANDFORD DULLEY, DECEASED) (Applicant) v QPCU LIMITED (ACN 087 651 036) (Respondent)
FILE NO/S:	BS No 5459 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 February 2018
DELIVERED AT:	Brisbane
HEARING DATE:	17 November 2017
JUDGE:	Lyons SJA
ORDERS:	I will hear the parties as to the form of the orders and as to costs.
CATCHWORDS:	PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – UNDERTAKING IN COURSE OF LEGAL PROCEEDING – implied undertaking to not use documents obtained from the defendant as a result of compulsory disclosure for a purpose other than for which those documents were provided – where the plaintiffs/applicants obtained documents by disclosure pursuant to rule 242 of the Uniform Civil Procedure Rules 1999 (Qld) – where the plaintiffs/applicants commenced proceedings on the basis of information obtained in disclosure and information already available – where after filing the claim the plaintiffs/applicants realised some material may not be before the court – whether the plaintiffs/applicants should be released from their implied undertaking Esso Australia Resources Limited and Ors v Plowman (1995) 183 CLR 10 Forty Two International Pty Ltd v Barnes [2010] FCA 397 Hearne v Street (2008) 235 CLR 125 Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 238 Miller v Scorey [1996] 1 WLR 1122 Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 4) [2011] 1 Qd R 145 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 Uniform Civil Procedure Rules 1999 (Qld) r 242
COUNSEL:	P G Bickford for the applicants P K O’Higgins for the respondent
SOLICITORS:	Clayton Utz for the applicants Minter Ellison for the respondent