Jorgensen v Jorgensen - [2017] QCA 110

[2017] QCA 110

SOFRONOFF P
GOTTERSON JA
NORTH J

Appeal No 11195 of 2016
SC No 342 of 2016

TRUDY JORGENSEN First Appellant

TEKSID PTY LTD Second Appellant
ACN 004 359 979

BRIAN JORGENSEN Respondent

CAIRNS

TUESDAY, 30 MAY 2017

JUDGMENT

SOFRONOFF P: This is an appeal against an order made by Justice Henry transferring this proceeding from the District Court in Townsville to the Supreme Court in Cairns, permanently staying the proceeding, and also restraining the appellant from instituting any proceedings with respect to or connected with or arising out of the Rainbow Motor Inn Unit Trust without the Court’s leave.

Section 25 of the Civil Proceedings Act 2011 confers discretion to transfer matters from the District Court to the Supreme Court. Pursuant to its inherent power to control its own processes, the Court has a discretion to stay permanently any proceedings and to restrain the institution of proceedings of the same or a similar kind. All of these powers being discretionary powers, any appeal from an order made in the exercise of them is an appeal from a discretionary order, and, consequently, an appellant must show that the decision is affected by an error of law or an error or fact, or that for some other reason the exercise of the discretion can be seen to have miscarried.

This proceeding arises out of a dispute between two brothers, Alan and Brian Jorgensen. In summary, in the early 1990s, they were, by means of a corporate and trust structure, the controllers of certain real estate. In 1992, in circumstances that are now said to be controversial, Alan’s units in the trust, the Rainbow Motor Inn Unit Trust, were transferred to his brother.

On 13 March 2015, Mantonella Proprietary Limited, a company controlled by Alan Jorgensen and which was the trustee of the Jorgensen Family Trust, commenced proceedings in the Cairns Registry of the Court seeking relief against the trustee of the Rainbow Trust, Grancroft Proprietary Limited, against Mainrace Proprietary Limited and against Alan’s brother Brian Jorgensen. The plaintiff in that proceeding alleged that the units in the Rainbow Trust that had formerly been held by the trustee of the Jorgensen Family Trust had been wrongfully transferred to Mainrace, and relevantly sought a declaration that Mantonella, the current trustee of the Jorgensen Family Trust, was the constructive trustee of those units. Relief was also sought to reinstate Patricia Jorgensen, Alan Jorgensen’s mother, as a director and shareholder of Grancroft Proprietary Limited, and for a payment of a share of profits of the trust for the 1991 to 1992 year.

On 1 April 2015, the defendants in that proceeding applied for an order that the plaintiff give security for costs and that, pending the giving of security, the action be stayed.

On 26 May 2015, before judgment had been given on that application, a company called Mijac Proprietary Limited, said to be a co-trustee of the Jorgensen Family Trust which has been appointed on 25 April 2015, commenced proceedings in…

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.

Continue reading Jorgensen v Jorgensen

Details

AGLC: Jorgensen v Jorgensen [2017] QCA 110
Case: [2017] QCA 110
Decision Date: 30 MAY 2017

CaseChat Overview and Summary

The appeal in Jorgensen v Jorgensen involves a dispute between the Jorgensen family members, specifically between Alan and Brian Jorgensen. The case originated in the District Court in Townsville, where Trudy Jorgensen, as trustee of the Jorgensen Family Trust, initiated proceedings against various defendants, including Brian Jorgensen. Justice Henry transferred the case to the Supreme Court in Cairns, where he permanently stayed the proceedings and restrained the appellants from instituting any further proceedings related to the Rainbow Motor Inn Unit Trust without the court's leave. The appellants, Trudy Jorgensen and Teksid Pty Ltd, appealed against Justice Henry's orders, arguing that they were denied natural justice and that the orders would prevent a meritorious claim about a trustee’s misfeasance from proceeding. The court was required to decide whether Justice Henry's exercise of discretion in transferring the case, staying the proceedings, and granting the restraining order was affected by an error of law or fact, or if it miscarried in some other way.

The appeal court found that the appellants' arguments did not establish any error in the exercise of discretion. Firstly, the court noted that the Cairns proceeding had not been discontinued as the appellants claimed. The appellants had not obtained the necessary consent or leave of the court to discontinue the proceedings, as required by the Uniform Civil Procedure Rules. Secondly, the court rejected the appellants' argument that they were denied natural justice, explaining that the orders did not deny them a right that all citizens possess to bring their dispute before the Supreme Court. Instead, the orders were made due to the appellants' abuse of the court's process by initiating multiple causes of action arising from the same facts. Lastly, the court clarified that the orders did not prevent a meritorious claim from proceeding, as the original proceeding remained on foot, and the plaintiff was free to proceed with it after providing security for costs. The court dismissed the appeal, stating that the appeal did not show any grounds that would vitiate the exercise of discretion.

The final orders of the court were that the appeal was dismissed, and the appellant was to pay the respondent's costs, to be taxed on a standard basis. The court adjourned, and the respondent was not allowed to ask any further questions or seek advice from the court.

Orders