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 201Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507
COUNSEL:
C Heyworth-Smith QC for the applicants
JA Greggery for the respondentsSOLICITORS:
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…
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- Case
- [2017] QSC 186
- Decision Date
CaseChat Overview and Summary
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
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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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