MacDonnell Shire Council v Miller - [2009] NTSC 46

MacDonnell Shire Council v Miller & Ors [2009] NTSC 46

PARTIES: MACDONNELL SHIRE COUNCIL
v
DEBBIE MILLER
AND
TONY FRANCIS PALMER
AND
MARIE ELANA ELLIS

TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY

JURISDICTION:

SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: NO 2 OF 2009 (20913798)
DELIVERED: 15 SEPTEMBER 2009
HEARING DATES: 5 AUGUST 2009
JUDGMENT OF: MILDREN J
CATCHWORDS:
TRUSTS – TRUSTEES – INTERLOCUTORY APPLICATIONS –
RECOVERY OF FUNDS
Amendment of Statement of Claim – application for joinder – whether amendments bad in law – test to be applied – leave granted to plaintiff to file and serve amended Statement of Claim
Application for permanent stay of proceedings – whether an abuse of paying of monies from trust
process – whether proceedings capable of succeeding – whether proceedings
are “embarrassing and scandalous” – application refused – application for
stay pending outcome of High Court action granted
Application concerning discovery and giving of accounts adjourned sine die
Gee, Steven, Commercial Injunctions (5th ed, 2004); Kerr, William
Willamson, Kerr on Fraud and Mistake (7th ed, 1986)
Law of Property Act2000 (NT), s 208(1); Local Government Act 2008 (NT), s 257, s 257(3); Supreme Court Rules, O 13.02(1)(b), O 63.18
Commonwealth v Verwayen (1990) 170 CLR 394; Gaye (No 1) Pty Ltd v
Rowlands Quarries (Katherine) Pty Ltd (unreported, NTSC, Angel J, 11 July
1997); Woodhead Australia (SA) Pty Ltd v Paspalis Group of Companies
(1991) 103 FLR 122; applied
Williams v Spautz (1992) 174 CLR 509; discussed
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Barton v The Deputy Commissioner of Taxation of the Commonwealth of Australia (1974) 131 CLR 370; Castanho v Brown & Root (UK) Ltd [1980] 3 All ER 72 ; Cogent Nominees v Anthony [2003] NSWSC 804; Dubois v Hodgson
[1999] NSWSC 1065; Henry v Henry (1996) 185 CLR 571; In the Marriage
of Prince (1984) 54 ALR 467; Otter Gold NL v Barcon (NT) Pty Ltd &
Sankey (2000) 10 NTLR 189; Patrick v Tenon Limited (formerly Fletcher
Challenge Forests Ltd) (2008) 250 ALR 582; Re O’Mullane (decd) [1955]
VLR 217; The Atlantic Star v Bona Spes [1974] AC 436 ; Thomas v Thomas
[2000] SASC 408; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR
538; referred to
REPRESENTATION:
Counsel:

Plaintiff: A Wyvill
First Defendant: P Slattery QC
Second & Third Defendants: P McIntyre and A Tokley
Solicitors:

Plaintiff: Povey Stirk
First Defendant: Cridlands MB Lawyers
Second & Third Defendants: Midena Lawyers
Judgment category classification: B

Number of pages: 16
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
MacDonnell Shire Council v Miller & Ors [2009] NTSC 46
No. 2 of 2009 (20913798)
BETWEEN:
MACDONNELL SHIRE COUNCIL
Plaintiff

AND:
DEBBIE MILLER
First Defendant

AND:
TONY FRANCIS PALMER
Second Defendant

AND:
MARIE ELANA ELLIS
Third Defendant

CORAM: MILDREN J
REASONS FOR JUDGMENT (Delivered 15 September 2009)

Basic background facts

This litigation is concerned…

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.

Keep reading for free

Create a free CaseChat account to read MacDonnell Shire Council v Miller and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NTSC 46
Decision Date: 15/09/2009

CaseChat Overview and Summary

MacDonnell Shire Council v Miller & Ors [2009] NTSC 46 is a case concerning an action by the plaintiff to recover funds transferred by the Amoonguna Community Inc (Amoonguna) to the first defendant as trustee. The plaintiff claims that the trust created prior to 1 July 2008, when the Local Government Act dissolved Amoonguna and transferred its assets and liabilities to the plaintiff, was an express or alternatively a resulting trust, of which the sole beneficial owner was Amoonguna prior to 1 July 2008, and the plaintiff became the sole beneficiary and beneficial owner of the trust property after 1 July 2008. The defendants have commenced an action in the High Court to challenge the validity of the relevant provisions of the Local Government Act 2008. The second and third defendants have been joined because they claim to be the beneficiaries of the trust because it not only succeeded to Amoonguna’s assets but also to its liabilities. The first defendant submits that the whole of the trust fund has been made over for the specific purposes of meeting the legal costs of challenging the validity of the legislation and for bringing, if necessary, a claim for compensation under the Act if it is found to be valid and that the plaintiff’s claim is therefore unsustainable. The plaintiff asserts that the dispositions made to the trust are voidable by reason of s 208(1) of the Law of Property Act as a fraudulent disposition made as an attempt to avoid, defeat or inhibit the plaintiff’s prospective rights and interests in the funds.

The plaintiff sought leave to amend the Statement of Claim, subject to the plaintiff giving the usual undertaking as to damages, that subject to (ii) below, the first defendant be restrained from paying out any monies out of the trust fund; that the first defendant pay the trust funds into the plaintiff’s solicitors’ trust account to be held by them until further order; that the first defendant provide to the plaintiff’s solicitors copies of all documents which evidence the receipt or payment of funds from the trust fund; and that the first defendant file and serve on the plaintiffs solicitors an affidavit deposing to the payments made from the trust fund since 25 June 2008. The second and third defendants sought an order that they be joined as defendants in these proceedings. The defendants sought orders staying the action pending resolution of the proceedings in the High Court; alternatively, if necessary, for an order transferring the action to the Court to which the High Court has remitted the action commenced in the High Court.

The Court granted leave to the plaintiff to file and serve an amended Statement of Claim in the terms of the Draft Amended Statement of Claim annexed to the plaintiff’s summons of 4 August 2009, except for those paragraphs of the Draft Amended Statement of Claim which allege an alternative case based upon s 208(1) of the Law of Property Act, such amended Statement of Claim to be filed and served within 14 days. The application for a permanent stay of the action was refused. The application by the plaintiff that the trust funds be paid into Court or into the trust account of the plaintiff’s solicitors was refused. The plaintiff’s application against the first defendant for discovery and filing an affidavit deposing to the payments made from the said trust fund since 25 June 2006 was adjourned sine die. The plaintiff was to pay the first defendant’s costs of the hearings on 11 and 18 June 2009 to be taxed on an indemnity basis and I certify fit for counsel. Subject to order 8, each party was to bear its own costs of the applications and orders.

Orders