Jessup v Queensland Housing Commission

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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…

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Details
Case
[2001] QCA 312
Decision Date

CaseChat Overview and Summary

In the case of Jessup v Queensland Housing Commission, the plaintiff, Jessup, brought an action against the Queensland Housing Commission, arguing that the defendant had misappropriated funds received under a Funding Agreement. Jessup contended that the funds were held in trust by the defendant, and that the defendant breached the terms of the trust by diverting the funds for unauthorized purposes. The defendant argued that the funds were not held in trust, and that it was entitled to use the funds as it saw fit. The court was required to determine whether the defendant was a trustee of the funds received, and if so, whether it had breached the terms of the trust.

The legal issues in the case were whether the defendant was a trustee of the funds received under the Funding Agreement, and whether the funds constituted "public moneys" under the Financial Administration and Audit Act 1977 (Qld). The court found that the defendant was not a trustee of the funds, as it had not intended to create a trust when it received the funds. The court also found that the funds did not constitute "public moneys" under the Act, as they were not funds held by the defendant in its capacity as a public authority.

The court's reasoning was that the defendant's receipt of the funds did not create a trust, as there was no intention to do so. The court found that the defendant had intended to receive the funds for the purposes specified in the Funding Agreement, and that it was entitled to use the funds for those purposes. The court also found that the funds did not constitute "public moneys" as they were not held by the defendant in its capacity as a public authority, but rather were held by it in its capacity as a private entity. The court dismissed the appeal and ordered that the defendant pay the costs of the proceedings.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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