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Kendell v Kendell

Kendell v Kendell

Case [2005] QCA 390 21 October 2005

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SUPREME COURT OF QUEENSLAND

CITATION:

Kendell v Kendell & Ors [2005] QCA 390

PARTIES:

DAVID WARD KENDELL (AS TRUSTEE OF THE WGK TRUST)
(applicant/appellant/applicant/respondent)
v
PAUL DESMOND SWEENEY and TERRY GRANT van der VELDE (Liquidators)
(first respondents)
JENI KENDELL
(second respondent/first respondent/first respondent/applicant)
PENNY NELSON
(third respondent/second respondent/second respondent/applicant)
SUE DONE
(fourth respondent/third respondent/third respondent/applicant)
KARDIL PTY LTD ACN 000 980 816
(fifth respondent)
SUELL PTY LTD ACN 000 980 807 (deregistered)
(sixth respondent)
GEOFFREY HOWARD ROUTLEY
(seventh respondent)

FILE NO/S:

Appeal No 3004 of 2005
SC No 8347 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Miscellaneous Application - Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 October 2005

JUDGES:

McMurdo P, Keane JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed
2. Appellant to pay the respondents' costs of the appeal on the indemnity basis
3. Appellant's application for leave to amend notice of appeal to raise an appeal against the costs order below and the respondents' application in relation to that costs order are struck out with no order as to costs in either case

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL – GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT - GENERALLY - where appellant claimed to have been appointed as the trustee of a trust owing a debt to a company that had been placed in liquidation - where this debt, along with others, had been written off under a settlement deed entered into between the trust, the other respondents and the liquidators - where the appellant had sought orders at first instance to direct the liquidators to pursue these debts notwithstanding the settlement deed - where, on appeal, the appellant only sought a declaration to the effect that he was not personally indebted to the company being liquidated - whether the learned primary judge erred in not making the declaration that the appellant was not personally indebted to the company - whether the contention that the appellant was not personally indebted had ever been litigated below - whether any other error had been shown in the decision of the learned primary judge

APPEAL AND NEW TRIAL - APPEAL – PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - COSTS - where the respondents sought an order that the appellant pay their costs of the appeal on the indemnity basis - whether the conduct of the appeal by the appellant had been so unreasonable as to justify an award of costs on the indemnity basis

Corporations Act 2001 (Cth), s 511
Supreme Court Act 1995 (Qld), s 253
Uniform Civil Procedure Rules 1999 (Qld), r 766

COUNSEL:

Q T Cregan for the appellant
J B Sweeney for the respondents to the appeal

SOLICITORS:

Holland & Holland for…

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 Kendell v Kendell

Details

AGLC: Kendell v Kendell [2005] QCA 390
Case: [2005] QCA 390
Decision Date: 21 October 2005

CaseChat Overview and Summary

In the matter of Kendell v Kendell, the appellant sought to appeal a decision that had refused to order the liquidators of a company in liquidation to pursue certain debts that had been written off under a settlement deed. The appellant claimed to be the trustee of a trust that owed a debt to the liquidated company and sought a declaration that he was not personally liable for these debts. The primary judge had dismissed the appeal, and the appellant now sought to appeal that decision. The respondents opposed the appeal and sought an order that the appellant pay their costs of the appeal on the indemnity basis.

The central legal issue was whether the contention that the appellant was not personally indebted to the company had ever been properly raised in the proceedings below. Additionally, the court had to determine whether the conduct of the appellant during the appeal was so unreasonable as to justify an award of costs on the indemnity basis. The court also had to consider whether any other error had been shown in the decision of the primary judge.

The court found that the appellant had not properly raised the contention that he was not personally indebted to the company in the proceedings below. The court held that this issue was not properly before it and therefore could not be raised on appeal. The court also found that the appellant's conduct during the appeal had been unreasonable and warranted an award of costs on the indemnity basis. Accordingly, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs of the appeal on the indemnity basis.

The court further struck out the appellant's application for leave to amend the notice of appeal to raise an appeal against the costs order below and the respondents' application in relation to that costs order, with no order as to costs in either case.

Orders

Orders of the court

1. Appeal dismissed

2. Appellant to pay the respondents' costs of the appeal on the indemnity basis

3. Appellant's application for leave to amend notice of appeal to raise an appeal against the costs order below and the respondents' application in relation to that costs order are struck out with no order as to costs in either case

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.

Citations

AGLC Citation

Kendell v Kendell [2005] QCA 390

Most Recent Citation

Kirkby v Coote [2006] QCA 87

Cases citing this decision · 5 of 5 shown

CPR Solutions Mackay Pty Ltd v Zammit Earthmoving Pty Ltd (No 2)
[2020] QSC 197 Para 6

…ly unreasonable’ or there are other ‘special or unusual features justifying a departure from the usual course.” [7] Kendell v Kendell & Ors [2005] QCA 390 at [21]. Indemnity costs…
Lonergan & Anor v Friese (No 2)
[2020] QLAC 4 Para 11

…conduct was, in my view, so unreasonable as to require him to be ordered to pay costs on the indemnity basis.[11] [11] Kendell v Kendell & Ors [2005] QCA 390 [21].…
Roberts v Prendergast
[2013] QCA 89 Para 1

…d [2004] VSC 351 (Redlich J) and by the New South Wales Court of Appeal, the Federal Court, and this Court. [3] Kendell v Kendell [2005] QCA 390 at [21] (Keane JA, McMurdo P and Douglas J concurring), referring to Tector v FAI General Insurance Co Ltd [2001] 2 Qd R 463 and Deepcliffe Pty Ltd v The Council of the…
Wright & Anor v. Keenfilly P/L & Anor
[2007] QCA 148 Para 1

…In Kendall v Kendall & Ors [2005] QCA 390 the focus of the unsuccessful appeal was an issue not litigated below and not available to be raised for the first time on appeal. The descriptions of applicable principles in Tector and Deepcliffe were quoted and applied in awarding costs on the indemnity basis on the gr…
Kirkby v Coote
[2006] QCA 87 Para 1

…so plainly unreasonable as to justify the unusual course of imposing an order for indemnity costs on the appellants.[1] [1]Cf Kendell v Kendell & Ors [2005] QCA 390 at [21] - [22].…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

Connolly v Spence, Minister for Police
[2005] QCA 255 Para 1

…Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2003] QCA 516 at [6]; [2004] 2 Qd R 11 at 14; Connolly v Spence, Minister for Police [2005] QCA 255; Appeal No 729 of 2005, 22 July 2005 at [16] - [17].…
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd
[2004] HCA 55 Para 1

…if they were genuine loans. [6] Richard Walter Pty Ltd v FCT (1996) 67 FCR 243 at 245, 257 - 258; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 at [46]; (2004) 218 CLR 471 at 486. [7]Cf Snook v London & West Riding Investments Ltd [1967] 2 QB 786 at 802.…
Emanuel Management Pty Ltd (in liq) v Foster's Brewing Group Ltd
[2003] QCA 516 Para 1

…lden Casket Art Union Office [1994] QCA 480 at [13] - [14]; [1995] 2 Qd R 346 at 349; Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2003] QCA 516 at [6]; [2004] 2 Qd R 11 at 14; Connolly v Spence, Minister for Police [2005] QCA 255; Appeal No 729 of 2005, 22 July 2005 at [16] - [17].…
Fox v Percy
[2003] HCA 22 Para 1

…he did. [4] In re Kendells (NSW) P/L (in liq) ; Kendell v Sweeney & Ors [2005] QSC 064; SC No 8347 of 2002, 17 March 2005 at [37]. [5] Fox v Percy [2003] HCA 22 at [26] - [27]; (2003) 214 CLR 118 at 128.…
Ballymont P/L v Ipswich City Council
[2002] QCA 454 Para 1

…hat the effect of this provision is that the power of the Court to award costs is "unrestrained": See Ballymont Pty Ltd v Ipswich City Council (No 2) [2002] QCA 454 at [19] - [20]; [2003] 2 Qd R 232 at 236 - 237. [9] Tector v FAI General Insurance Company Ltd [2000] QCA 426 at [5]; [2001] 2 Qd R 463 at 464; Deepc…
Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor
[2001] QCA 396 Para 1

…neral Insurance Company Ltd [2000] QCA 426 at [5]; [2001] 2 Qd R 463 at 464; Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396; Appeal No 10673 of 2000, 31 August 2001 at [5].…
Tector v FAI General Insurance Co Ltd
[2000] QCA 426 Para 1

…t Pty Ltd v Ipswich City Council (No 2) [2002] QCA 454 at [19] - [20]; [2003] 2 Qd R 232 at 236 - 237. [9] Tector v FAI General Insurance Company Ltd [2000] QCA 426 at [5]; [2001] 2 Qd R 463 at 464; Deepcliffe Pty Ltd & Anor v The Council of the City of Gold Coast & Anor [2001] QCA 396; Appeal No 10673 of 2000, 3…
Richard Walter Pty Ltd v Commissioner of Taxation
[1996] FCA 1117 Para 1

…Kendell's will, made in 1993, referred to all loans by the company to related parties as if they were genuine loans. [6] Richard Walter Pty Ltd v FCT (1996) 67 FCR 243 at 245, 257 - 258; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 at [46]; (2004) 218 CLR 471 at 486. [7]Cf Snook v London & West R…
Re Golden Casket Art Union Office
[1994] QCA 480 Para 1

…the present about the challenges to his Honour's order as to the costs of the proceedings at first instance. [2]See Re Golden Casket Art Union Office [1994] QCA 480 at [13] - [14]; [1995] 2 Qd R 346 at 349; Emanuel Management Pty Ltd (in liq) v Fosters Brewing Group Ltd [2003] QCA 516 at [6]; [2004] 2 Qd R 11 at…
Kendell v Sweeney & ors
[2005] QSC 064 Para 1

…osts orders that were made after the conclusion of the proceedings at first instance. [1] In re Kendells (NSW) P/L (in liq) ; Kendell v Sweeney & Ors [2005] QSC 064; SC No 8347 of 2002, 17 March 2005.…
[1967] 2 QB 786
[1967] 2 QB 786 Para 1

…uuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 at [46]; (2004) 218 CLR 471 at 486. [7]Cf Snook v London & West Riding Investments Ltd [1967] 2 QB 786 at 802.…

Legislation cited in this decision · 3

Corporations Act 2001 (Cth)
511 2 mentions (from Para 1)
Supreme Court Act 1995 (Qld)
253 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
766, 766(1)(d) 2 mentions (from Para 1)

CITATION:	Kendell v Kendell & Ors [2005] QCA 390
PARTIES:	DAVID WARD KENDELL (AS TRUSTEE OF THE WGK TRUST) (applicant/appellant/applicant/respondent) v PAUL DESMOND SWEENEY and TERRY GRANT van der VELDE (Liquidators) (first respondents) JENI KENDELL (second respondent/first respondent/first respondent/applicant) PENNY NELSON (third respondent/second respondent/second respondent/applicant) SUE DONE (fourth respondent/third respondent/third respondent/applicant) KARDIL PTY LTD ACN 000 980 816 (fifth respondent) SUELL PTY LTD ACN 000 980 807 (deregistered) (sixth respondent) GEOFFREY HOWARD ROUTLEY (seventh respondent)
FILE NO/S:	Appeal No 3004 of 2005 SC No 8347 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Miscellaneous Application - Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	21 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	11 October 2005
JUDGES:	McMurdo P, Keane JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. Appellant to pay the respondents' costs of the appeal on the indemnity basis 3. Appellant's application for leave to amend notice of appeal to raise an appeal against the costs order below and the respondents' application in relation to that costs order are struck out with no order as to costs in either case
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL – GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - QUESTIONS NOT RAISED ON PLEADINGS OR IN ARGUMENT - GENERALLY - where appellant claimed to have been appointed as the trustee of a trust owing a debt to a company that had been placed in liquidation - where this debt, along with others, had been written off under a settlement deed entered into between the trust, the other respondents and the liquidators - where the appellant had sought orders at first instance to direct the liquidators to pursue these debts notwithstanding the settlement deed - where, on appeal, the appellant only sought a declaration to the effect that he was not personally indebted to the company being liquidated - whether the learned primary judge erred in not making the declaration that the appellant was not personally indebted to the company - whether the contention that the appellant was not personally indebted had ever been litigated below - whether any other error had been shown in the decision of the learned primary judge APPEAL AND NEW TRIAL - APPEAL – PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - COSTS - where the respondents sought an order that the appellant pay their costs of the appeal on the indemnity basis - whether the conduct of the appeal by the appellant had been so unreasonable as to justify an award of costs on the indemnity basis Corporations Act 2001 (Cth), s 511 Supreme Court Act 1995 (Qld), s 253 Uniform Civil Procedure Rules 1999 (Qld), r 766
COUNSEL:	Q T Cregan for the appellant J B Sweeney for the respondents to the appeal
SOLICITORS:	Holland & Holland for…