Logan v Logan - [2013] QSC 72

SUPREME COURT OF QUEENSLAND

CITATION:

Logan v Logan [2013] QSC 72

PARTIES:

CATHERINE MARY LOGAN

v

KAYE LENORE LOGAN BY HER LITIGATION GUARDIAN BARBARA LOGAN

FILE NO/S:

BS10885/2010

DIVISION:

Trial

PROCEEDING:

Application on the papers

DELIVERED ON:

22 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Peter Lyons J

ORDER:

1. Further to the order of the Supreme Court of Queensland made by Peter Lyons J on 17 May 2012, the court orders that, consequent upon the transfers of Lot 19 on SP225671, County of Canning, Parish of Neara, Title Reference 50805504 (the property) by Donald Louis Logan, deceased, to Catherine Mary Logan, dated 16 February 2010 being dealing numbers 713254424 and 713369950, being set aside, the property vest in Michael Karl Klatt as trustee pursuant to section 82 of the Trusts Act 1973 (Qld).

2. That the costs of and incidental to this application be paid from the Estate of Donald Louis Logan on an indemnity basis.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where the applicant is the administrator of the estate of Donald Louis Logan – where applicant sought to recover property alleged to form part of the estate of Mr Logan – where orders were made declaring property was held on trust for the estate – where applicant sought unsuccessfully to have property registered in his name – whether court has power to make further supplementary orders – whether further supplementary orders should be made

Caboolture Park Shopping Centre Pty Ltd (In Liq) V White Industries (Qld) Pty Ltd (1993) 45 FCR 224

Trusts Act 1973 (Qld) s82

Uniform Civil Procedure Rules (Qld) 1999 r668

SOLICITORS:

Mullins Lawyers for the Applicant.

Peter Lyons J: On 17 May 2012 at a review hearing I made orders in Proceeding No. 9451 of 2010. It is now said that one of the orders then made is not effective, and a further order is sought.

The plaintiff in the proceedings is the administrator of the estate of Donald Louis Logan (deceased). He sought to recover property alleged to form part of Mr Logan’s estate, from the first defendant, Catherine Mary Logan; and from the second defendant. Both defendants consented to the following order:

“…
2. as against the first defendant and the third defendant:
(a)the transfer of Lot 19 on SP 225671, county of Canning, Parish of Neara, Title Reference 50805504 (Pineview) by Donald Louis Logan, deceased, to the first defendant dated 16 February 2010, being dealing numbers 713254424 and 713369950, be set aside;
(b)it is declared that:

(i) the first defendant holds, and has always held:

(A) Pineview;

(B) subject to registered mortgages 712313706 in favour of Australia and New Zealand Banking Group Limited and 713670520 in favour of Murdoch Lawyers Pty Ltd, Lot 48 on SP 184388, County of Canning, Parish of Bribie, Title Reference 50735046;

(C) subject to hire purchase agreement 677740 dated 6 December 2010 in favour of BMW Australia Finance…

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 Logan v Logan

Details

AGLC: Logan v Logan [2013] QSC 72
Case: [2013] QSC 72
Decision Date: 22 March 2013

CaseChat Overview and Summary

In the matter of Logan v Logan, the applicant, who is the administrator of the estate of Donald Louis Logan, sought to recover property that was alleged to form part of Mr Logan's estate. The property in question was Lot 19 on SP225671, County of Canning, Parish of Neara, Title Reference 50805504, which had been transferred to Catherine Mary Logan on 16 February 2010. The Supreme Court of Queensland was required to decide whether it had the power to make further supplementary orders concerning the property and if such orders should be made. The court had previously declared that the property was held on trust for the estate, and the applicant sought unsuccessfully to have the property registered in his name.

The court found that it had the power to make further supplementary orders in the circumstances of this case. It considered that the orders made on 17 May 2012, which declared the property to be held on trust for the estate, should be supplemented by vesting the property in Michael Karl Klatt as trustee. This decision was based on section 82 of the Trusts Act 1973 (Qld), which provides for the vesting of property in a trustee upon the making of a trust declaration. The court held that the orders made on 17 May 2012 should be supplemented to reflect the appropriate legal and beneficial ownership of the property.

The court ordered that, consequent upon the transfers of the property by Donald Louis Logan to Catherine Mary Logan being set aside, the property vest in Michael Karl Klatt as trustee pursuant to section 82 of the Trusts Act 1973 (Qld). Additionally, the court ordered that the costs of and incidental to this application be paid from the Estate of Donald Louis Logan on an indemnity basis. This decision provides clarity regarding the legal and beneficial ownership of the property in question and ensures that the orders made by the court are consistent with the relevant statutory provisions.

Orders

Orders of the court

1. Further to the order of the Supreme Court of Queensland made by Peter Lyons J on 17 May 2012, the court orders that, consequent upon the transfers of Lot 19 on SP225671, County of Canning, Parish of Neara, Title Reference 50805504 (the property) by Donald Louis Logan, deceased, to Catherine Mary Logan, dated 16 February 2010 being dealing numbers 713254424 and 713369950, being set aside, the property vest in Michael Karl Klatt as trustee pursuant to section 82 of the Trusts Act 1973 (Qld).

2. That the costs of and incidental to this application be paid from the Estate of Donald Louis Logan on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Logan v Logan [2013] QSC 72
PARTIES:	CATHERINE MARY LOGAN v KAYE LENORE LOGAN BY HER LITIGATION GUARDIAN BARBARA LOGAN
FILE NO/S:	BS10885/2010
DIVISION:	Trial
PROCEEDING:	Application on the papers
DELIVERED ON:	22 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	On the papers
JUDGE:	Peter Lyons J
ORDER:	1. Further to the order of the Supreme Court of Queensland made by Peter Lyons J on 17 May 2012, the court orders that, consequent upon the transfers of Lot 19 on SP225671, County of Canning, Parish of Neara, Title Reference 50805504 (the property) by Donald Louis Logan, deceased, to Catherine Mary Logan, dated 16 February 2010 being dealing numbers 713254424 and 713369950, being set aside, the property vest in Michael Karl Klatt as trustee pursuant to section 82 of the Trusts Act 1973 (Qld). 2. That the costs of and incidental to this application be paid from the Estate of Donald Louis Logan on an indemnity basis.
CATCHWORDS:	PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – OTHER CASES – where the applicant is the administrator of the estate of Donald Louis Logan – where applicant sought to recover property alleged to form part of the estate of Mr Logan – where orders were made declaring property was held on trust for the estate – where applicant sought unsuccessfully to have property registered in his name – whether court has power to make further supplementary orders – whether further supplementary orders should be made *Caboolture Park Shopping Centre Pty Ltd (In Liq) V White Industries (Qld) Pty Ltd* (1993) 45 FCR 224 *Trusts Act* 1973 (Qld) s82 *Uniform Civil Procedure Rules* (Qld) 1999 r668
SOLICITORS:	Mullins Lawyers for the Applicant.