Jessup v Queensland Housing Commission

SUPREME COURT OF QUEENSLAND

CITATION:

Jessup v Queensland Housing Commission [2001] QCA 312

PARTIES:

IAN DAVID JESSUP
(applicant/respondent)
v
QUEENSLAND HOUSING COMMISSION
(respondent/appellant)

FILE NO/S:

Appeal No 409 of 2001
SC No 108 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

10 August 2001

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2001

JUDGES:

McPherson and Davies JJA, Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – EXPRESS TRUSTS CONSTITUTED INTER VIVOS – DECLARATION OF TRUST – NECESSITY FOR INTENTION – whether, in receiving funds, the payee was constituted a trustee of those funds on the terms of the Funding Agreement.

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – whether funds constituted “public moneys” under the Financial Administration and Audit Act 1977 (Qld).

Financial Administration and Audit Act 1977 (Qld), s 6, s 23(1), Schedule 3.

Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 74 ALJR 862, considered.
Australian Elizabethan Theatre Trust, Re (1991) 30 FCR 491, considered.
Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567, considered.
Hardoon v Belilios [1901] AC 118, considered.
Schebsman, Re [1944] Ch 83, considered.
Scott v Scott (1963) 109 CLR 649, considered.

COUNSEL:

D B Fraser QC for the appellant
A J Morris QC for the respondent

SOLICITORS:

Crown Solicitor for the appellant
Gadens Lawyers (Cairns) for the respondent

1. McPHERSON JA:  This appeal concerns the right to a sum of approximately $124,000.00 standing to the credit of Cairns Career Training Inc (CCT), in its current account with the Lake Street Branch of Westpac Banking Corporation in Cairns. The money is claimed by the respondent Mr I D Jessup, who is the liquidator of CCT appointed on 19 July 1999, and also by Queensland Housing Commission (QHC), which is the appellant in this Court. Its claim to be entitled to that money was rejected by Jones J in an application made by Mr Jessup in the Supreme Court at Cairns, and it is against that decision that QHC now appeals. At the hearing before his Honour, the appellant’s claim was based on an allegation that CCT was trustee for QHC of the money standing to the credit of the account; but on appeal QHC has sought to supplement or to broaden its claim by submitting that the sum in question is “public money” to which it is entitled as a matter of statutory or, it may be, constitutional right.

1. With one exception to be mentioned, money in the CCT Westpac account came from HA/S payments made by QHC. The abbreviation HA/S stands for Home Assist Home Secure program, which was a combination of two earlier programmes of government funding designed to relieve some of the practical concerns and difficulties experienced by older or disabled people…