Hollingsworth v Johnston - [2018] QCA 351

SUPREME COURT OF QUEENSLAND

CITATION:

Hollingsworth & Ors v Johnston & Anor [2018] QCA 351

PARTIES:

RACHAEL REBECCA HOLLINGSWORTH
HAREL JOSEPH HERROD
(first appellants)
ROBERT MATTHEW HERROD
(second appellant)
v
HARELLA CAROLINE JOHNSTON
LEAH DELILAH FELSMAN
(respondents)

FILE NO/S:

Appeal No 9586 of 2017
SC No 805 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Townsville – [2017] QSC 186 (North J)

DELIVERED ON:

14 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

20 March 2018

JUDGES:

Gotterson and Philippides JJA and Douglas J

ORDERS:

The appeal is dismissed with costs.

CATCHWORDS:

ESTOPPEL – ESTOPPEL BY JUDGMENT – RES JUDICATA OR CAUSE OF ACTION ESTOPPEL – GENERALLY – where the respondents commenced a family provision application in 1999 – where the respondents commenced a different action against executors of the same estate – where judgment was entered in those later proceedings – where the respondents sought to amend their originating application in the family provision application – where the amendment sought to make the executors of the estate personally liable – whether leave to amend ought to have been granted – whether the amendment was res judicata

ESTOPPEL – ESTOPPEL BY JUDGMENT – ANSHUN ESTOPPEL – GENERALLY – whether leave to amend ought to have been granted – whether the respondents were estopped from making the amendment

LIMITATION OF ACTIONS – GENERAL MATTERS – AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD – AMENDMENTS INTRODUCING NEW CAUSE OF ACTION OR PARTICULARISING CAUSE OF ACTION – where the respondent alleged that the amendment was made outside the limitation period – whether the limitation period issue ought to be considered at an interlocutory stage

SUCCESSION – FAMILY PROVISION – PROPERTY WHICH MAY BE SUBJECT TO ORDER – OTHER MATTERS – where the respondents argued that the estate had been fully distributed – where the respondents argued that relief in the family provision application was therefore impossible – whether the impossibility of relief ought to be considered at an interlocutory stage

Succession Act 1981 (Qld), s 52

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited
Conquer v Boot [1928] 2 KB 336, referred to
Ebber v Isager [1995] 1 Qd R 150, referred to
Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15, cited
Herrod v Johnston [2013] 2 Qd R 102; [2012] QCA 360, cited
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
In the estate of Gough (1973) 5 SASR 559, cited
Johnston v Herrod [2012] QSC 98, cited
Johnston v Hollingsworth [2017] QSC 186, approved
King v Lintrose Nominees Pty Ltd (2001) 4 VR 619; [2001] VSCA 140, distinguished
Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508, distinguished
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543, applied
New Brunswick Railway Company…

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.

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Details

Case: [2018] QCA 351
Decision Date: 14 December 2018

CaseChat Overview and Summary

The matter before the court was an appeal from a decision allowing the respondents to amend their originating application in a family provision proceeding. The respondents sought to establish the appellants, the executors of the deceased's estate, personally liable for distributing assets of the estate allegedly in breach of trust. The primary judge had decided that there was no estoppel precluding the respondents from pursuing the statutory remedy available under s 52 of the Succession Act 1981 against the personal representatives of the deceased for failure to perform their duties and permitted the originating application to be amended. The appellants argued that the amendment was res judicata or cause of action estoppel, and that the amendment was made outside the limitation period. The court considered the arguments and found that the amendment was not res judicata or cause of action estoppel, and that the limitation period issue ought not to be considered at an interlocutory stage. The impossibility of relief was also not considered at an interlocutory stage. The appeal was dismissed with costs.

The court was required to decide whether the amendment sought by the respondents was precluded by estoppel by judgment or res judicata, whether the amendment was made outside the limitation period, and whether the impossibility of relief should be considered at an interlocutory stage. The court found that the amendment was not precluded by estoppel by judgment or res judicata, and that the limitation period issue ought not to be considered at an interlocutory stage. The impossibility of relief was also not considered at an interlocutory stage. The court held that the primary judge was correct in permitting the amendment to be made.

The court's reasoning was that the amendment sought by the respondents was not precluded by estoppel by judgment or res judicata. The court found that the doctrine of Anshun estoppel did not apply, and that the amendment was not res judicata or cause of action estoppel. The court also held that the limitation period issue ought not to be considered at an interlocutory stage, and that the impossibility of relief was not a matter to be considered at an interlocutory stage. The court found that the primary judge was correct in permitting the amendment to be made. The appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

The appellants say that the estate is now fully administered which explains the nature of the amendments sought to the originating application which seek to establish personal liability in the appellants for distributing assets of the estate allegedly in breach of trust. The learned primary judge decided that there was no estoppel precluding the respondents from pursuing the statutory remedy available under s 52 of the Succession Act 1981 against the personal representatives of the deceased for failure to perform their duties and permitted the originating application to be amended.Background The appeal relates to the administration of the estate of Robert Harel Herrod (“the deceased”) who died on 14 February 1999. The parties to this appeal are his children. While he was alive, the deceased held a leasehold interest in a cattle property called Moonoomoo Station on which he ran a cattle business in partnership with his two sons, Robert Herrod and Harel Herrod, two of the appellants. The property of the partnership consisted of cattle, plant and equipment. By his will dated 4 September 1989, the deceased appointed Harel Herrod and Rachael Hollingsworth, one of his daughters, as executors. Under the will, Robert Herrod and Harel Herrod were to receive the land, including machinery and equipment not owned by the partnership as tenants in common while Rachael Hollingsworth, Harella Johnston and Leah Felsman were to receive the deceased’s interests in the partnership together with the rest and residue of the estate as tenants in common in equal shares. Harella Johnston and Leah Felsman are the respondents in this matter. On 25 October 1999, the respondents filed an originating application seeking further and better provision from the estate of the deceased pursuant to s 41 of the Succession Act. I shall refer to that application as “the FPA”. On 30 July 2007, the respondents also filed the claim which led to the adjudicated proceeding. An amended statement of claim was filed on 25 May 2009 in that proceeding.[2][2]AB455. On 20 April 2010, the parties attended a hearing to resolve whether the FPA and the adjudicated proceeding should be heard together.[3] Cullinane J indicated that he was not going to order the matters to be heard together.[4] His Honour also expressed the view that the adjudicated proceeding should be resolved before the FPA but did not stay the FPA. Nor did the parties expressly agree that the FPA should be stayed but the adjudicated proceeding continued to trial as if the FPA had been stayed.[5][3]AB1-8.[4]AB7 ll 34-35.[5]AB504 at [8] and AB570 at [6]. On 18 December 2012, the Court of Appeal delivered judgment in the adjudicated proceeding resolving the matter in favour of the respondents with an adjustment in respect of the amount of equitable compensation awarded by de Jersey CJ on 22 May 2012 from $433,709.67 down to $273,851. The trial decision by de Jersey CJ focussed principally on whether the appellants had misrepresented to the respondents the value of their share in the partnership bequeathed to them. His Honour found that there had been such misrepresentations and that the respondents had been overborne by the appellants who pressured them to enter into agreements to be paid significantly less for their shares in the partnership than they were worth.[6][6]Johnston v Herrod [2012] QSC 98 at [95], [101]; AB516-517.

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.

CITATION:	Hollingsworth & Ors v Johnston & Anor [2018] QCA 351
PARTIES:	RACHAEL REBECCA HOLLINGSWORTH HAREL JOSEPH HERROD (first appellants) ROBERT MATTHEW HERROD (second appellant) v HARELLA CAROLINE JOHNSTON LEAH DELILAH FELSMAN (respondents)
FILE NO/S:	Appeal No 9586 of 2017 SC No 805 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Townsville – [2017] QSC 186 (North J)
DELIVERED ON:	14 December 2018
DELIVERED AT:	Brisbane
HEARING DATE:	20 March 2018
JUDGES:	Gotterson and Philippides JJA and Douglas J
ORDERS:	The appeal is dismissed with costs.
CATCHWORDS:	ESTOPPEL – ESTOPPEL BY JUDGMENT – RES JUDICATA OR CAUSE OF ACTION ESTOPPEL – GENERALLY – where the respondents commenced a family provision application in 1999 – where the respondents commenced a different action against executors of the same estate – where judgment was entered in those later proceedings – where the respondents sought to amend their originating application in the family provision application – where the amendment sought to make the executors of the estate personally liable – whether leave to amend ought to have been granted – whether the amendment was res judicata ESTOPPEL – ESTOPPEL BY JUDGMENT – ANSHUN ESTOPPEL – GENERALLY – whether leave to amend ought to have been granted – whether the respondents were estopped from making the amendment LIMITATION OF ACTIONS – GENERAL MATTERS – AMENDMENT OF ORIGINATING PROCESSES AND PLEADINGS OUTSIDE LIMITATION PERIOD – AMENDMENTS INTRODUCING NEW CAUSE OF ACTION OR PARTICULARISING CAUSE OF ACTION – where the respondent alleged that the amendment was made outside the limitation period – whether the limitation period issue ought to be considered at an interlocutory stage SUCCESSION – FAMILY PROVISION – PROPERTY WHICH MAY BE SUBJECT TO ORDER – OTHER MATTERS – where the respondents argued that the estate had been fully distributed – where the respondents argued that relief in the family provision application was therefore impossible – whether the impossibility of relief ought to be considered at an interlocutory stage Succession Act 1981 (Qld), s 52 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39, cited Conquer v Boot [1928] 2 KB 336, referred to Ebber v Isager [1995] 1 Qd R 150, referred to Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15, cited Herrod v Johnston [2013] 2 Qd R 102; [2012] QCA 360, cited House v The King (1936) 55 CLR 499; [1936] HCA 40, cited In the estate of Gough (1973) 5 SASR 559, cited Johnston v Herrod [2012] QSC 98, cited Johnston v Hollingsworth [2017] QSC 186, approved King v Lintrose Nominees Pty Ltd (2001) 4 VR 619; [2001] VSCA 140, distinguished Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508, distinguished Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543, applied New Brunswick Railway Company…