Cowley v Murphy

DISTRICT COURT OF QUEENSLAND

CITATION:

Cowley v Murphy [2020] QDC 231

PARTIES:

GRAEME CHARLES COWLEY

(plaintiff/respondent)

v

JOHN MURPHY and JENNIFER STORY

(defendants/applicants)

FILE NO/S:

4162/19

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

18 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

25 August 2020

JUDGE:

Barlow QC DCJ

ORDER:

The application filed on 18 August 2020 by the defendants be dismissed.

The application filed on 18 August 2020 by the plaintiff be adjourned to a date to be fixed.

CATCHWORDS:

ESTOPPEL – ESTOPPEL BY JUDGMENT – ISSUE ESTOPPEL – APPLICATION OF ESTOPPEL TO WHAT MATTERS – MATTERS NOT DIRECTLY ADJUDICATED ON – plaintiff previously applied to Supreme Court for an order that the defendants be removed as statutory trustees for sale – court noted that some of the allegations may have amounted to allegations of breach of trust – plaintiff claims damages for breach of statutory duty or, alternatively, breach of trust in the present proceeding – whether issues raised in the present proceeding are materially identical to Supreme Court’s judgment – whether the issue was finally determined by the Supreme Court

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – defendant applied for summary judgment or, alternatively, to strike out the statement of claim – defendant argues the plaintiff has no real prospects of success – whether issues in this proceeding have been finally determined in another related proceeding

Uniform Civil Procedure Rules 1999 (Qld) r 69(1)(b), r 171(1), r 293

Blair v Curran (1939) 62 CLR 464, applied

Cowley v Macwood Pty Ltd [2015] QSC 343, considered

Cowley v Macwood Pty Ltd (No 2) [2015] QSC 344, cited

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, applied

COUNSEL:

DA Skennar QC and M Brooks for the plaintiff/respondent

MK Stunden for the defendants/applicants

SOLICITORS:

Australian Property Lawyers for the plaintiff/respondent

Barry.Nilsson. Lawyers for the defendants/applicants

1. The defendant seeks summary judgment pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (UCPR), or alternatively, that the statement of claim be struck out pursuant to r 171(1)(a), (b) or (e) of the UCPR.

2. The plaintiff seeks various orders concerning further disclosure, inspection of documents, an electronic bundle of documents and mediation.

Background

1. Pursuant to s 38 of the Property Law Act 1974, in 2013 the defendants were appointed by the Supreme Court of Queensland as statutory trustees to sell the following properties that were, by the order, vested in them upon trust:

   (a)Lot 34 on RP 846362 (Halliday Bay); and

   (b)Lot 5 on RP 8098555 and Lots 100 and 101 on SP 28224 (Seaforth);

   (collectively, the land).

2. Frank Cowley owned the land until his death in February 2011.  By his last will, the plaintiff acquired a 10% interest in Halliday Bay and a 20% interest in Seaforth.  The balance of the interest in the land was acquired…