Doneley v Morris

SUPREME COURT OF QUEENSLAND

CITATION:

Doneley v Morris  [2001] QSC 090

PARTIES:

JOHN JUSTIN DONELEY as executor and trustee
of the estate of ANNE THERESE DONELEY
(plaintiff/respondent)
v
ANTHONY JOHN HUNTER MORRIS
(first defendant/applicant)
LEON LEACH
(second defendant)
THOMAS FENWICK
(third defendant)

FILE NO/S:

SC No 304 of 2001

DIVISION:

Trial

PROCEEDING:

Application for summary judgment

DELIVERED ON:

4 April 2001

DELIVERED AT:

Brisbane

HEARING DATE:

7 February and 20 March 2001

JUDGE:

Wilson J

ORDER:

Judgment for the first defendant against the plaintiff.

CATCHWORDS:

EQUITY – EQUITABLE ESTATES AND INTERESTS – whether executor and trustee of estate who was declared bankrupt could claim indefeasibility of title against beneficial owners or trustee in bankruptcy

TRADE PRACTICES AND RELATED MATTERS – CONSUMER PROTECTION – whether representations allegedly made by court-appointed trustee of land to Water Resources Commission were misleading, deceptive or likely to mislead or deceive – limitation period

TRADE PRACTICES AND RELATED MATTERS – TERMINOLOGY AND INTERPRETATION-whether court-appointed trustee engaged in trade or commerce

Land Title Act 1994 (Qld), s 185(1)(a)
Trade Practices Act 1974 (Cth), s 52, s 82(2), s 87(1CA)
Trusts Act 1973 (Qld), s 96
Water Resources Act 1989 (Qld), s 42(5), s 44(1)(d), s 47, s 49

Barry v Heider (1914) 19 CLR 197, applied.
Frazer v Walker [1967] 1 AC 569, applied.

COUNSEL:

P A Keane QC with L F Kelly for the applicant first defendant
T D North SC for the respondent plaintiff

SOLICITORS:

Russell and Company for the applicant first defendant
Plaintiff self represented

1. WILSON J: In this proceeding commenced on 10 January 2001 the plaintiff ("Mr Doneley") sues as the executor and trustee of the estate of his late wife Anne Therese Doneley.  By his amended statement of claim filed on 16 January 2001 he claims (inter alia) a declaration that the first defendant has engaged in conduct in contravention of s 52 of the Trade Practices Act 1974 and damages.

1. The first defendant seeks summary judgment against Mr Doneley or alternatively that the statement of claim be struck out.

1. The claim concerns a rural property called Beardie near St George and water licences associated with it.  Beardie consisted of –

(a)        lot 9, being Crown leasehold land held by Mr and Mrs Doneley and mortgaged to the National Australia Bank;

(b)lots 1 and 14 ("the trust land"), being freehold land, the subject of the Doneley Trust, the beneficiaries of which were Mr and Mrs Doneley's sons, Sean George Doneley and Matthew Justin Doneley (“the boys").

1. The trustee Connellan Nominees Pty Ltd leased the trust land to Mr and Mrs Doneley as joint tenants for 50 years commencing on 7 November 1984 at a rental of $1 per year.  The lease was registered in July 1985.  In August 1987 Mrs Doneley replaced the company as trustee.  About two years later she granted the Bank a mortgage over the trust land to secure the repayment of moneys owing by her and her husband.  At the same time Mr and Mrs…