SUPREME COURT OF QUEENSLAND
CITATION:
Hookey & Anor v Whitelaw & Ors (No 3) [2020] QSC 284
PARTIES:
SCOTT GREGORY HOOKEY
(first plaintiff)
KIDS ACADEMY HOPE ISLAND PTY LTD ACN 164 852 475 AS TRUSTEE OF THE KIDS ACADEMY HOPE ISLAND UNIT TRUST
(second plaintiff)
v
JOHN BRUCE WHITELAW
(first defendant)
KA ESTATES PTY LTD
ACN 600 469 887 AS TRUSTEE OF THE KA ESTATES UNIT TRUST
(second defendant)
JBW ESTATES PTY LTD
ACN 600 612 819 AS TRUSTEE OF THE JBW FAMILY TRUST(third defendant)
FILE NO:
8477 of 2018
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
16 September 2020
DELIVERED AT:
Brisbane
HEARING DATE:
6 July 2020
JUDGE:
Flanagan J
ORDER:
1. Secure Legal Pty Ltd forthwith pay to the second defendant the sum of $138,297.25 from the balance of the Trust Security held by them pursuant to the order of Mullins J made 12 September 2018.
2. The plaintiffs’ application filed 25 June 2020 is dismissed.
3. The Court will hear the parties as to costs.
COUNSEL:
J W Peden QC for the plaintiffs
M M Stewart QC, with Dr D C Clarry for the defendantsSOLICITORS:
Van de Graaff Lawyers for the plaintiffs
Russells for the defendants
The parties are in dispute as to how the balance of a sum of money (“the Trust Security”) held by the solicitors for the plaintiffs pursuant to consent orders made by Mullins J (as her Honour then was) on 12 September 2018 should be distributed. The original amount of the Trust Security was $524,389.10. The present balance is $478,942.04.
There are two applications before the Court. The defendants apply for orders requiring the plaintiffs to direct their solicitor to pay an amount of $138,297.25 from the balance of the Trust Security to the second defendant, or alternatively an order that the plaintiffs’ solicitor pay that amount to the second defendant. The amount of $138,297.25 constitutes a shortfall in rent not paid by the second plaintiff, Kids Academy, to the second defendant, KA Estates, for the months of April, May and June 2020. The plaintiffs apply for orders that part of this sum, namely $90,894.12[1] be paid into Court pending the determination of all issues as to any entitlement respectively of the parties to that sum. The plaintiffs also seek the release of the remaining balance of the Trust Security ($388,047.92) held in their solicitors’ trust account “to one or more payees as directed by [the plaintiffs]”.[2]
[1]This figure constitutes the rent and interest ($138,297.25) less one month’s rent and all the interest.
[2]Application filed 25 June 2020, para 1.
The applications arise in the following circumstances.
Background
On 16 July 2014, KA Estates and Kids Academy executed a lease which was subsequently registered on 12 February 2016. A childcare centre was operated from the leased premises.
In Hookey & Anor v Whitelaw & Ors, the Court determined that KA Estates lawfully terminated the lease on 11 September 2018.[3] A declaration to this effect…
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- Case
- [2020] QSC 284
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances under which the trust undertakings were made and found that they were indeed binding. The court held that the terms of the undertakings were clear and unambiguous, and that the plaintiffs were bound by them. Consequently, the court ordered that Secure Legal Pty Ltd was to pay the defendant the sum of $138,297.25 from the balance of the Trust Security held by them. The court also dismissed the plaintiffs’ application for relief against forfeiture without considering the terms of the relief, as the primary issue of the enforceability of the trust undertakings had already been resolved.
This decision highlights the importance of the clarity of terms in trust undertakings and their enforceability. The court’s ruling ensures that parties are held to their commitments as outlined in their undertakings. The case also underscores the procedural steps that must be followed in determining the terms of relief against forfeiture, with the court reserving the matter for further hearing.
The final orders of the court included the directive for Secure Legal Pty Ltd to pay the sum of $138,297.25 to the defendant and the dismissal of the plaintiffs’ application for relief against forfeiture. The court further indicated that it would hear the parties as to the costs of the proceedings.
Orders
Orders of the court
1. Secure Legal Pty Ltd forthwith pay to the second defendant the sum of $138,297.25 from the balance of the Trust Security held by them pursuant to the order of Mullins J made 12 September 2018.
2. The plaintiffs’ application filed 25 June 2020 is dismissed.
3. The Court will hear the parties as to costs.
Background
Background to the litigation
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
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