McLean v McLean

Case [2016] QSC 295

SUPREME COURT OF QUEENSLAND

CITATION:

McLean v McLean  [2016] QSC 295

PARTIES:

PHILLIP EDWARD MCLEAN
(First Plaintiff)
SUSAN MARGRET MCLEAN
(Second Plaintiff)

v

CLYDE IAN MCLEAN
(First Defendant)
LORNA MAY MCLEAN
(Second Defendant)

FILE NO:

S208/16; S819/16

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

13 December 2016

DELIVERED AT:

Rockhampton

HEARING DATE:

9 December 2016

JUDGE:

McMeekin J

ORDER:

1.   Upon the usual undertaking as to damages by each of the first plaintiff and the defendants, the first plaintiff and the defendants are restrained and an injunction hereby issues restraining each of them, their servants or agents, from dealing with the proceeds of sale of the property save as set out in the following orders:

Upon settlement of the sale of the property known as Kinsale, described as Lot 14 on Crown Plan CLM259 Grazing Homestead Freeholding Lease 12/2185, Title Reference 17622176, all proper expenses and liabilities are to be discharged; (a)     

One-third of the net proceeds of sale is to be paid into the trust account of O’Shea & Dyer Solicitors Pty Ltd and then invested on behalf of the first plaintiff and the defendants in a fixed interest-bearing deposit account (the first plaintiff’s fund) until the court orders otherwise;(b)     

Two-thirds of the net proceeds of sale is to be paid into the trust account of SB Wright & Wright & Condie solicitors and then invested on behalf of the first plaintiff and the defendants in a fixed interest-bearing deposit account (the defendants’ fund) until the court orders otherwise;(c)     

From the first plaintiff’s fund the first plaintiff is entitled to be paid:(d)     

if he so desires the sum up to but no greater than $1,000 per week;(i)      

upon seven days written notice to the solicitors acting for the defendants an amount towards his reasonable legal costs and outgoings related to the present proceedings but not exceeding in total the sum of $200,000; (ii)     

From the defendants’ fund the defendants are entitled to be paid:(e)     

if they so desire the sum up to but no greater than $1,000 per week;(i)      

upon seven days written notice to the solicitors acting for the plaintiffs an amount towards their reasonable legal costs and outgoings related to the present proceedings but not exceeding in total the sum of $200,000; (ii)     

Subject to the payments out mentioned in paragraphs (d) and (e) no transaction is to be performed in respect of the accounts without the joint signatures of the solicitors acting for each party in the proceedings.(f)      

2.      The parties have liberty to apply on the giving of seven days’ notice;

3.      Costs are reserved.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – GENERALLY – where both sides apply for injunctions restraining the other side from accessing the net proceeds of sale of a property – where the plaintiffs claim they are entitled to the whole of the proceeds – where the defendants claim the plaintiffs have taken monies…

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McLean v McLean [2016] QSC 295
Case
[2016] QSC 295
Decision Date

CaseChat Overview and Summary

In the case of McLean v McLean, the parties were engaged in a dispute over the net proceeds of a property sale, with both sides seeking injunctive relief to prevent the other from accessing these funds. The case was heard in the Supreme Court of Queensland. The plaintiffs argued that they were entitled to the entirety of the sale proceeds, while the defendants contended that the plaintiffs had taken monies from a trust to which they were not entitled.

The primary legal issue before the court was whether an interlocutory injunction should be granted to either party to restrain the other from dealing with the net proceeds of the sale. The court had to weigh the respective claims of the plaintiffs and defendants and decide whether an injunction was warranted in the circumstances. The court considered the balance of convenience and the merits of the claims in determining whether to grant the injunctions.

The court found that both parties had made out a prima facie case for the relief sought. However, it was in the interests of justice to grant interlocutory relief to both parties. The court issued an injunction restraining both parties and their agents from dealing with the net proceeds of sale, save for certain specified purposes. These included the payment of expenses and liabilities, the allocation of one-third of the net proceeds to a fund for the plaintiffs and two-thirds to a fund for the defendants, and limited withdrawals from these funds for living expenses and legal costs. The court ordered that no transactions could be performed from these accounts without the joint signatures of the solicitors acting for each party. The parties were granted liberty to apply for further orders, and costs were reserved.

The court's orders effectively partitioned the net proceeds of sale into separate funds for the plaintiffs and defendants, with limited access for living expenses and legal costs, pending the final determination of the parties' claims.

Orders

Orders of the court

1. Upon the usual undertaking as to damages by each of the first plaintiff and the defendants, the first plaintiff and the defendants are restrained and an injunction hereby issues restraining each of them, their servants or agents, from dealing with the proceeds of sale of the property save as set out in the following orders:

Upon settlement of the sale of the property known as Kinsale, described as Lot 14 on Crown Plan CLM259 Grazing Homestead Freeholding Lease 12/2185, Title Reference 17622176, all proper expenses and liabilities are to be discharged; (a)

One-third of the net proceeds of sale is to be paid into the trust account of O’Shea & Dyer Solicitors Pty Ltd and then invested on behalf of the first plaintiff and the defendants in a fixed interest-bearing deposit account (the first plaintiff’s fund) until the court orders otherwise;(b)

Two-thirds of the net proceeds of sale is to be paid into the trust account of SB Wright & Wright & Condie solicitors and then invested on behalf of the first plaintiff and the defendants in a fixed interest-bearing deposit account (the defendants’ fund) until the court orders otherwise;(c)

From the first plaintiff’s fund the first plaintiff is entitled to be paid:(d)

if he so desires the sum up to but no greater than $1,000 per week;(i)

upon seven days written notice to the solicitors acting for the defendants an amount towards his reasonable legal costs and outgoings related to the present proceedings but not exceeding in total the sum of $200,000; (ii)

From the defendants’ fund the defendants are entitled to be paid:(e)

if they so desire the sum up to but no greater than $1,000 per week;(i)

upon seven days written notice to the solicitors acting for the plaintiffs an amount towards their reasonable legal costs and outgoings related to the present proceedings but not exceeding in total the sum of $200,000; (ii)

Subject to the payments out mentioned in paragraphs (d) and (e) no transaction is to be performed in respect of the accounts without the joint signatures of the solicitors acting for each party in the proceedings.(f)

2. The parties have liberty to apply on the giving of seven days’ notice;

3. Costs are reserved.

Background

Background to the litigation

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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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