Flynn v. Suncorp-Metway Limited

SUPREME COURT OF QUEENSLAND

CITATION:

Flynn v Suncorp-Metway Limited [2009] QSC 175

PARTIES:

DARREN JOHN FLYNN
(applicant)
v
SUNCORP-METWAY LIMITED
ABN 66 010 831 722
(respondent)

FILE NO/S:

BS No 5275/09

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

3 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 July 2009

JUDGE:

Chief Justice

ORDER:

1.   That further proceedings under the originating application filed on 20 May 2009 be stayed.

2.   That the applicant pay the respondent’s costs of and incidental to the application, to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – proceeding in Supreme Court raising an issue already arising, with others, in earlier commenced Magistrates Court proceeding – stay of Supreme Court proceeding as an abuse of process – declaratory relief would not have been granted anyway, for lack of utility

Trusts Act 1973 (Qld) s 8, s 94, s 96 and s 98

Barnes v Addy (1874) LR 9 Ch App 244, cited
Farah Constructions Pty Ltd and Ors v Say-Dee Pty Limited (2007) 230 CLR 89, cited
Henry v Henry (1995) 185 CLR 571, considered
Moore v Inglis (1976) 9 ALR 509, considered

COUNSEL:

D J Flynn appeared on his own behalf
C A Wilkins for the respondent

SOLICITORS:

D J Flynn appeared on his own behalf
Hall Lawyers for the respondent

Introduction

1. CHIEF JUSTICE: The applicant Darren John Flynn has filed an originating application, naming Suncorp-Metway Pty Ltd as respondent, claiming the following relief:

“Orders pursuant to sections 8, 94, 96 and 98 of the Trusts Act 1973 that the property situate and known as Lot 150 Beckmans Road, Glenwood, title reference 50737630 was purchased on trust by Anthony Aaron Flynn and is held for the Flynn Family Trust.”

1. Mr Flynn was not represented by lawyers on the hearing of the application.  He conducted his own case and, if I may say, with clarity and measure.

1. Suncorp-Metway has contended that the application should be stayed because it amounts to an abuse of process.  That is said to flow from the circumstance that the issue it raises will fall for determination in current proceedings in the Magistrates Court at Gympie.

The Magistrates Court proceeding

1. The earlier proceeding in the Magistrates Court was commenced on 8 January 2009.  The plaintiffs are Mr Darren Flynn, the present applicant, together with his mother Valerie and sister Gayle.  Their claim, against Suncorp-Metway, is for “an order for restitution of $45,000 together with interest and costs.

1. In the amended statement of claim, the plaintiffs allege their ownership, since June 2005, of a farming property at Gympie.  It was held through a family trust, of which the principal was Anthony Aaron Flynn, the present applicant’s brother.  Anthony Flynn owned a one-quarter beneficial interest in the property, and the plaintiffs the balance three-quarters.  Some of the property was sold.  Prior to completion of that sale, the present respondent lodged a caveat…