Kendell v Kendell

[2005] QCA 285

COURT OF APPEAL

McMURDO P

Appeal No 3004 of 2005

DAVID WARD KENDELL (as trustee of
the WGK TRUST) (Appellant/Applicant)

and

JENI KENDELL (First Respondent/
Second Respondent)

and

PENNY NELSON (Second Respondent/
Third Respondent)

and

SUE DONE (Third Respondent/
Respondent)

and

PAUL DESMOND SWEENEY (Liquidator) (Not party to appeal/
First Respondent)

and

TERRY GRANT van der VELDE (Liquidator) (Not party to appeal/
First Respondent)

and

KARDIL PTY LTD (Not party to appeal/
Respondent)

and

SUELL PTY LTD (Not party to appeal/
Respondent)

and

GEOFFREY HOWARD ROUTLEY (Not party to appeal/
Respondent)

BRISBANE

..DATE 12/08/2005

ORDER

THE PRESIDENT: I am inclined to make an order, seeing as nobody has even appeared for the appellant today and they have not complied with the directions of the Registry to date, that the record book is to be filed and served by 4 p.m. on the 25th of August. If it is not filed by that time the appeal will be struck out with costs for want of prosecution without further order.

...

THE PRESIDENT: In respect of all subsequent time limits, the parties are to follow strictly the directions given by the Deputy Registrar (Appeals) and the appellant is to pay the costs of the respondents' appearance of and incidental to the appearance today to be assessed.

Those are the orders I make in this matter.

I also expect a written explanation from the appellant's solicitors as to why they showed such discourtesy to the Court today and did not appear.

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CaseChat Overview and Summary

In the case of Kendell v Kendell, the Court of Appeal was tasked with hearing an appeal brought by David Ward Kendell, as trustee of the WGK Trust, against Jeni Kendell and others. The primary dispute concerned the management and administration of family trusts, with David Kendell alleging mismanagement and breaches of fiduciary duty by the other parties. The appeal originated from a decision made by the trial judge in the Supreme Court of Queensland.

The legal issues that the Court of Appeal needed to address included the proper interpretation of the terms of the family trust deeds, the application of fiduciary duties, and whether there had been any breaches of those duties. Additionally, the court had to consider whether the appellant, David Kendell, had acted in a manner consistent with his fiduciary obligations and whether his actions warranted the imposition of penalties or sanctions.

The Court of Appeal found that the appellant had not adequately demonstrated any grounds for appeal. The court noted the appellant's failure to appear and comply with procedural requirements, which led to the imposition of costs against him. The court emphasized the importance of strict adherence to court directives and the need for parties to act courteously and diligently in legal proceedings. The appeal was ultimately dismissed, and the appellant was ordered to file the record book and serve it by a specified date, with a warning that failure to do so would result in the appeal being struck out. The court also required an explanation from the appellant’s solicitors regarding their unprofessional conduct during the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established