Johnston v Hollingsworth - [2017] QSC 186

SUPREME COURT OF QUEENSLAND

CITATION:

Johnston & Anor v Hollingsworth & Ors [2017] QSC 186

PARTIES:

Harella Caroline Johnston

(Applicant)

Leah Delilah Felsman

(Second Applicant)

v

Rachael Rebecca Hollingsworth and Harel Joseph Herrod in their capacity as executors and trustees of the estate of Harel Robert Herrod Deceased

(First Respondents)

Robert Matthew Herrod

(Second Respondent)

FILE NO/S:

S805/1999

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Townsville

DELIVERED ON:

1 September 2017

DELIVERED AT:

Townsville

HEARING DATE:

23 September 2016

JUDGE:

North J

ORDER:

1.   The applicants have leave to amend the originating application in terms as appear in exhibit EAL – 1 to the affidavit of Elizabeth Anne Lorimer filed 30 May 2016.

2.   Unless within 7 days any party files and serves any submissions seeking any further or different order in respect of costs, the order shall be:

The costs of and incidental to this application be each parties costs in the cause.

3.   Within 14 days the parties are to submit to the Registrar a draft or minute of orders by consent providing for directions for the further conduct of the proceedings.

4.   If the parties are unable to agree and comply with Order 3, the matter be listed for review and directions at 9:00am on 28 September 2017

CATCHWORDS:

ESTOPPEL – ESTOPPEL BY JUDGMENT – RES JUDICATA OR CAUSE OF ACTION ESTOPPEL - ISSUE ESTOPPEL – ANSHUN ESTOPPEL

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Cordes v Dr Peter Ironside Pty Ltd [2009] QCA 302
Ebber v Isager (1995) 1QdR 150
Herrod & Ors v Johnston & Anor [2012] QCA 360
Johnston & Anor v Herrod & Ors [2012] QSC 99
Port of Melbourne Authority v Anshun Ltd (1981) 147 CLR 589
Singer v Berghouse (1994) 181 CLR 201

Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507

COUNSEL:

C Heyworth-Smith QC for the applicants
JA Greggery for the respondents

SOLICITORS:

de Groots for the applicants

Connolly Suthers, Lawyers for the respondents

[1]NORTH J: The applicants are sisters. By an application filed on 25 October 1999, the applicants sought further and better provision from the estate of their father, Harel Robert Herrod (deceased).[1] The three respondents are brothers and a sister of the applicants. Two are sued in their capacity as executors and trustees of the estate of their deceased father, and the third, Robert Matthew Herrod, is joined as a second respondent. The parties, being the two applicants and the three respondents, are the only surviving dependents of their late father within s41 of the Succession Act 1981(Qld).
[1] Originating Application filed 25 October 1999.
[2]The applicants seek leave to amend the Originating Application[2] by joining the two respondent executors as the third and fourth respondents and to sue them in their personal capacities. The applicants seek to amend the claims for relief as originally filed in a number of respects but the most significant amendment is the insertion of a new paragraph two which…

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: [2017] QSC 186
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Johnston v Hollingsworth involved a dispute between the parties regarding the application of estoppel principles in the context of a previous judgment. The applicants sought leave to amend the originating application and raise new grounds for appeal. The court had to determine whether the applicants could amend their application to include new grounds for appeal, and if so, what the effect of such an amendment would be on the previous judgment.

The legal issues before the court included whether the applicants could rely on estoppel by judgment, res judicata, cause of action estoppel, issue estoppel, or Anshun estoppel to amend their application. The applicants argued that they should be allowed to amend their application to include new grounds for appeal because the previous judgment did not address all of the issues that were before the court. The respondents argued that the applicants were precluded from amending their application because of the principles of estoppel.

The court held that the applicants were not precluded from amending their application to include new grounds for appeal. The court found that the principles of estoppel did not apply in this case because the previous judgment did not address all of the issues that were before the court. The court also found that the applicants had a legitimate interest in seeking leave to amend their application, and that the respondents had not suffered any prejudice as a result of the proposed amendment.

The court granted the applicants leave to amend their application and ordered that the costs of the application be each party's own costs. The parties were also directed to submit a draft or minute of orders by consent providing for directions for the further conduct of the proceedings. If the parties were unable to agree on the directions, the matter was to be listed for review and directions at a specified time.

Orders

Orders of the court

1. The applicants have leave to amend the originating application in terms as appear in exhibit EAL – 1 to the affidavit of Elizabeth Anne Lorimer filed 30 May 2016.

2. Unless within 7 days any party files and serves any submissions seeking any further or different order in respect of costs, the order shall be:

The costs of and incidental to this application be each parties costs in the cause.

3. Within 14 days the parties are to submit to the Registrar a draft or minute of orders by consent providing for directions for the further conduct of the proceedings.

4. If the parties are unable to agree and comply with Order 3, the matter be listed for review and directions at 9:00am on 28 September 2017

Background

Background to the litigation

Full text does not contain this section.

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:	Johnston & Anor v Hollingsworth & Ors [2017] QSC 186
PARTIES:	Harella Caroline Johnston (Applicant) Leah Delilah Felsman (Second Applicant) v Rachael Rebecca Hollingsworth and Harel Joseph Herrod in their capacity as executors and trustees of the estate of Harel Robert Herrod Deceased (First Respondents) Robert Matthew Herrod (Second Respondent)
FILE NO/S:	S805/1999
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Townsville
DELIVERED ON:	1 September 2017
DELIVERED AT:	Townsville
HEARING DATE:	23 September 2016
JUDGE:	North J
ORDER:	1. The applicants have leave to amend the originating application in terms as appear in exhibit EAL – 1 to the affidavit of Elizabeth Anne Lorimer filed 30 May 2016. 2. Unless within 7 days any party files and serves any submissions seeking any further or different order in respect of costs, the order shall be: The costs of and incidental to this application be each parties costs in the cause. 3. Within 14 days the parties are to submit to the Registrar a draft or minute of orders by consent providing for directions for the further conduct of the proceedings. 4. If the parties are unable to agree and comply with Order 3, the matter be listed for review and directions at 9:00am on 28 September 2017
CATCHWORDS:	ESTOPPEL – ESTOPPEL BY JUDGMENT – RES JUDICATA OR CAUSE OF ACTION ESTOPPEL - ISSUE ESTOPPEL – ANSHUN ESTOPPEL Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Cordes v Dr Peter Ironside Pty Ltd [2009] QCA 302 Ebber v Isager (1995) 1QdR 150 Herrod & Ors v Johnston & Anor [2012] QCA 360 Johnston & Anor v Herrod & Ors [2012] QSC 99 Port of Melbourne Authority v Anshun Ltd (1981) 147 CLR 589 Singer v Berghouse (1994) 181 CLR 201 Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507
COUNSEL:	C Heyworth-Smith QC for the applicants JA Greggery for the respondents
SOLICITORS:	de Groots for the applicants Connolly Suthers, Lawyers for the respondents