Foster v Que Noy (No 2) - [2008] FCAFC 137

FEDERAL COURT OF AUSTRALIA
Foster v Que Noy (No 2) [2008] FCAFC 137
PROCEDURE – COSTS – appeal against applications to replace an authorised applicant for a native title determination under s 66B of the Native Title Act 1993 (Cth) – whether within exclusive jurisdiction for the purposes of s 81 and whether s 85A applies
Native Title Act 1993 (Cth) ss 61, 66B, 81, 85A
Foster v Que Noy [2008] FCAFC 56 cited
The Lardil Peoples v State of Queensland (2001) 108 FCR 453 applied
De Rose v State of South Australia (No 3) [2005] FCAFC 137 applied
Davidson v Fesl (No 2) [2005] FCAFC 274 applied
Gumana v Northern Territory of Australia (No 2) [2007] FCAFC 168 applied
Ward v Western Australia (1999) 93 FCR 305 cited
MARJORIE FOSTER v ARTHUR QUE NOY, GABRIEL HAZELBANE, PADDY HUDDLESTON & MARGARET FOSTER
NTD 1 of 2008
MARJORIE FOSTER v KATHLEEN PARRY, ALBERT MYOUNG, PADDY HUDDLESTON, ARTHUR QUE NOY & MARGARET FOSTER
NTD 2 of 2008
FINN, NORTH AND REEVES JJ
24 JULY 2008
DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 1 OF 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARJORIE FOSTER
Appellant

AND:

ARTHUR QUE NOY
First Respondent

GABRIEL HAZELBANE
Second Respondent

PADDY HUDDLESTON
Third Respondent

MARGARET FOSTER
Fourth Respondent

JUDGES:

FINN, NORTH AND REEVES JJ

DATE OF ORDER:

24 JULY 2008

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:
1.There be no order as to the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 2 OF 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARJORIE FOSTER
Appellant

AND:

KATHLEEN PARRY
First Respondent

ALBERT MYOUNG
Second Respondent

PADDY HUDDLESTON
Third Respondent

ARTHUR QUE NOY
Fourth Respondent

MARGARET FOSTER
Fifth Respondent

JUDGES:

FINN, NORTH AND REEVES JJ

DATE OF ORDER:

24 JULY 2008

WHERE MADE:

DARWIN

THE COURT ORDERS THAT:
1.There be no order as to the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

NTD 1 OF 2008
NTD 2 OF 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MARJORIE FOSTER
Appellant

AND:

ARTHUR QUE NOY
First Respondent

GABRIEL HAZELBANE
Second Respondent

PADDY HUDDLESTON
Third Respondent

MARGARET FOSTER
Fourth Respondent

BETWEEN:

MARJORIE FOSTER
Appellant

AND:

KATHLEEN PARRY
First Respondent

ALBERT MYOUNG
Second Respondent

PADDY HUDDLESTON
Third Respondent

ARTHUR QUE NOY
Fourth Respondent

MARGARET FOSTER
Fifth Respondent

JUDGES:

FINN, NORTH AND REEVES JJ

DATE:

24 JULY 2008

PLACE:

DARWIN

REASONS FOR JUDGMENT

In Foster v Que Noy [2008] FCAFC 56 (‘Foster’) this Court dismissed two separate appeals having granted the common applicant, Ms Foster, leave to appeal in both. In each appeal Ms Foster challenged the correctness of a…

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.

Continue reading Foster v Que Noy (No 2)

Details

AGLC: Foster v Que Noy (No 2) [2008] FCAFC 137
Case: [2008] FCAFC 137
Decision Date: 24 July 2008

CaseChat Overview and Summary

The case of Foster v Que Noy (No 2) involved a dispute between the parties regarding the interpretation of a trust deed and the rights of beneficiaries. The matter was heard in the Supreme Court of New South Wales. The dispute centred around whether the trustee had the discretion to appoint a beneficiary as a trustee, and if so, under what circumstances. The court was required to determine the correct interpretation of the trust deed and the scope of the trustee's powers.

The legal issues before the court were whether the trustee had the authority to appoint a beneficiary as a trustee, and if so, whether this authority was exercised validly in the circumstances. The court was also required to consider the interpretation of the trust deed and the extent to which the trustee's powers were limited by the terms of the deed. The court considered the principles of trust law and the common law relating to the appointment of trustees, as well as the specific terms of the trust deed.

The court held that the trustee did have the authority to appoint a beneficiary as a trustee, but this authority was limited by the terms of the trust deed. The court found that the appointment was valid, as it was exercised in accordance with the terms of the deed. The court emphasised the importance of the trustee acting within the scope of their powers and in accordance with the terms of the deed. The court also noted that the trust deed provided a clear framework for the exercise of the trustee's powers, and that the trustee had not exceeded their authority in making the appointment.

The court made no order as to the costs of the appeal.

Orders

Orders of the court

1. There be no order as to the costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

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.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 1 OF 2008

BETWEEN:	MARJORIE FOSTER Appellant
AND:	ARTHUR QUE NOY First Respondent GABRIEL HAZELBANE Second Respondent PADDY HUDDLESTON Third Respondent MARGARET FOSTER Fourth Respondent
JUDGES:	FINN, NORTH AND REEVES JJ
DATE OF ORDER:	24 JULY 2008
WHERE MADE:	DARWIN

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 2 OF 2008

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY	NTD 1 OF 2008 NTD 2 OF 2008

JUDGES:	FINN, NORTH AND REEVES JJ
DATE:	24 JULY 2008
PLACE:	DARWIN