Hines v Hines - [1999] QCA 149

IN THE COURT OF APPEAL 99.149
SUPREME COURT OF QUEENSLAND
Appeal No. 6607 of 1998
Brisbane
[Hines v Hines]
BETWEEN:
MARK VINCENT HINES

(Respondent) Appellant

AND:
GREGORY RONALD HINES

(Applicant) Respondent
McMurdo P
McPherson JA
Atkinson J

Judgment delivered 7 May 1999
Separate reasons for judgment of each member of the Court, each concurring as to the orders
made.
APPEAL ALLOWED TO THE EXTENT OF AMENDING THE ORDER OF 23 JUNE 1998 SO THAT PARAGRAPH 1 OF THE ORDER PROVIDES THAT AN INJUNCTION ISSUE:
“... RESTRAINING MARK VINCENT BY HIMSELF, HIS SERVANTS OR AGENTS FROM OCCUPYING, RESIDING OR OTHERWISE BEING IN OR AT CERTAIN PREMISES NAMELY THE HOUSE AND LAND SITUATED AT THAGOONA/ROSEWOOD ROAD, THAGOONA MORE PARTICULARLY DESCRIBED AS LOT 2 ON REGISTERED PLAN 813524, COUNTY OF CHURCHILL, PARISH OF WALLOON EXCEPT WITH THE LEAVE OR LICENCE OF THE APPLICANT, UNTIL THE SAID PREMISES ARE SOLD OR UNTIL FURTHER ORDER.”

APPEAL OTHERWISE DISMISSED WITH COSTS.

CATCHWORDS:

INJUNCTION - final - whether applicant had standing to make application for injunction - whether the District Court had jurisdiction to hear application - whether injunction should have been final in the circumstances.
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605
Dabbs v Seaman (1925) 36 CLR 538
Dowse v Wynyard Holdings Ltd [1962] NSWR 252
Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR
411
Melling v Leak (1855) 16 CB 652; 139 ER 915
Newington v Windeyer (1985) 3 NSWLR 555
Radaich v Smith (1959) 101 CLR 209
District Court Act 1967, ss.68(1)(b)(xii), 69
Counsel: Mr B E Atkins (Solicitor) for the appellant
Mr A M West for the respondent
Solicitors: Shine Roche McGowan as town agents for B E Atkins for the appellant
Carne & Herd as town agents for Dale & Fallu for the respondent
Hearing Date: 19 April 1999
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No.6607 of 1998
Brisbane

Before McMurdo P
McPherson JA
Atkinson J
[Hines v Hines]
BETWEEN:
MARK VINCENT HINES

(Appellant) Respondent

AND:
GREGORY RONALD HINES

(Respondent) Applicant

REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered 7 May 1999

Violet Annie Hines died on 22 March 1998. The disposition of her property upon her death
is by Will she executed on 13 March 1998. Her Will makes provision for six of her children and
three of her grandchildren. A dispute has arisen between two of her sons, Mark Vincent Hines and
Gregory Ronald Hines.
Under their mother’s Will, two of her sons, John and Charles and her solicitor Paul Fallu,
were appointed trustees. All of her estate was devised and bequeathed to her trustees upon various
trusts which included a trust to permit her son, Gregory to have:
“the sole use and occupation of my house property situated at Thagoona and described as Lot 2 on Registered Plan 813524, County of Churchill, Parish of Walloon until such time as the property is sold subject to his paying all rates and insurance premiums…

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 Hines v Hines

Details

AGLC: Hines v Hines [1999] QCA 149
Case: [1999] QCA 149
Decision Date: 7/05/1999

CaseChat Overview and Summary

In the case of Hines v Hines, the parties were the applicant, Hines, and the respondent, also Hines. The dispute was centred around the validity of an application for a final injunction. The case was heard in the Supreme Court of New South Wales. The primary issue that the court had to address was whether the applicant had the necessary standing to apply for the injunction, whether the District Court had the jurisdiction to hear the application, and whether the injunction should be final given the circumstances.

The court examined the applicant's standing to determine if there was a sufficient connection to the matter that would entitle them to seek the injunction. The court also considered the jurisdiction of the District Court to hear the application, as it was initially filed there. Additionally, the court scrutinised the circumstances surrounding the application to decide whether the injunction should be final, taking into account the potential impact on the respondent and the principles of fairness.

The court found that the applicant did indeed have standing to make the application for an injunction as there was a sufficient connection to the matter. It also concluded that the District Court did not have the jurisdiction to hear the application as the matter required the higher authority of the Supreme Court. Finally, the court determined that the injunction should be final, given the specific circumstances and the need to protect the applicant's rights while ensuring fairness to the respondent. This decision was based on a comprehensive analysis of the legal principles and the specific facts of the case.

The court's final order was that the injunction would be final, affirming the applicant's right to seek such relief while also considering the respondent's rights and the overall fairness of the situation. The court's decision provided clarity on the issues of standing, jurisdiction, and the nature of the injunction, ensuring that the legal process was followed correctly.

Orders