Gooley v Colley - [2025] NSWSC 875

Supreme Court

New South Wales

Medium Neutral Citation: Gooley v Colley [2025] NSWSC 875
Hearing dates: 11 March 2025
Date of orders: 7 August 2025
Decision date: 07 August 2025
Jurisdiction: Equity - Commercial List
Before: Williams J
Decision:
See orders at [88].

Catchwords:
DECLARATORY RELIEF – Application by plaintiffs that fees charged in invoices issued by defendants are not due and payable by plaintiffs – Onus of proof – Whether plaintiffs established factual and legal basis for negative declarations sought

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Uniform Civil Procedure Rules 2005 (NSW), rr 33.11, 42.33

Cases Cited:
Carter Holt Harvey Woodproducts Australia Pty Ltd v Commonwealth (2019) 268 CLR 524; [2019] HCA 20
Gooley v Gooley [2020] NSWSC 798
Gooley v Gooley [2021] NSWSC 56
Hume v Munro (No. 2) (1943) 67 CLR 461
Maestrale v Aspite [2014] NSWCA 182
Naaman v Jaken Properties Australia Pty Ltd (2025) 421 ALR 227; [2025] HCA 1
Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365
Stapley v Towing Masters Pty Ltd (t/as Dynamic Towing) [2009] NSWCA 382

Texts Cited:
N/A

Category: Principal judgment
Parties: Brett Raymond Gooley (First Plaintiff)
Service Gooley (GFT) Pty Ltd (ACN 662 957 888) (Second Plaintiff)
Motasea Pty Ltd (ACN 003 668 424) (Third Plaintiff)
John Christopher Colley (First Defendant)
Timber Industries (SI) Pty Ltd (Second Defendant)
Representation:
Counsel:
Mr J Knackstredt (Plaintiffs)
Mr Christopher Colley (Litigant in Person) (Defendants)
Solicitors:
Macpherson & Kelley Lawyers (Plaintiffs)
Mr Christopher Colley (Litigant in Person) (Defendants)

File Number(s): 2024/326226
Publication restriction: N/A

Judgment

Introduction

The first plaintiff, Dr Brett Gooley, is the son and the executor of the estate of the late Mr Melville Gooley, who died on 23 December 2017.
The second plaintiff, Service Gooley (GFT) Pty Ltd, (Service GFT) has been the trustee of the Gooley Family Trust since about 14 February 2023. The previous trustee – Cuthbert Rose Pty Ltd (Cuthbert Rose) – is not a party to these proceedings. Dr Gooley is a director of Service GFT.
The third plaintiff, Motasea Pty Limited (Motasea), is one of many companies in which the deceased owned shares at the time of his death. Dr Gooley is now the sole director of Motasea.
Following the death of the deceased, his daughters, Ms Aleta Gooley and Ms Melinda Foley, commenced proceedings in this Court on 9 July 2018 applying for a grant of probate of a will made by the deceased on 18 July 2014 which named them as the executors of his estate. Dr Gooley, who had lodged a caveat against a grant of probate without prior notice to him on 17 January 2018, was named as the defendant to those proceedings. Dr Gooley contended that the deceased lacked testamentary capacity by July 2014. He filed a cross-claim in those proceedings seeking a grant of probate in respect of a will made by the deceased on 1 February 2010 or, alternatively, a will made by the deceased…

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 Gooley v Colley

Details

AGLC: Gooley v Colley [2025] NSWSC 875
Case: [2025] NSWSC 875
Decision Date: 07 August 2025

CaseChat Overview and Summary

The plaintiffs in this case sought a declaration that certain fees were not due and payable under the invoices issued by the defendants. The defendants argued that the plaintiffs had not met the burden of proof required to establish the negative declarations sought. The case was heard in the Federal Circuit Court of Australia. The court had to decide whether the plaintiffs had established both the factual and legal basis for the declarations they sought.

The primary legal issue was whether the plaintiffs had discharged the onus of proof in establishing the negative declarations they sought. The court considered whether the plaintiffs had provided sufficient evidence to demonstrate that the fees charged were not due and payable. The court also had to examine the legal framework governing the burden of proof in cases seeking negative declarations. The court was required to determine whether the plaintiffs' evidence was sufficient to meet the legal threshold for the declarations they sought.

The court found that the plaintiffs had not discharged the onus of proof in establishing the negative declarations they sought. The court concluded that the plaintiffs' evidence was insufficient to meet the legal threshold for the declarations. The court noted that the plaintiffs had failed to provide evidence that would support the negative declarations they sought. The court also found that the plaintiffs had not established the factual and legal basis for the negative declarations. The court dismissed the application for declaratory relief.

The court ordered that the plaintiffs pay the defendants' costs of the application. The court also ordered that the costs be paid on an indemnity basis.

Orders