Mulhern Constructions v Mulhern - [2012] QSC 120

SUPREME COURT OF QUEENSLAND

CITATION:

Mulhern Constructions & Ors v Mulhern [2012] QSC 120

PARTIES:

MULHERN CONSTRUCTIONS PTY LTD ACN 060 410 102

(first plaintiff)

and

CELTIC PACIFIC PROPERTIES PTY LTD ACN 071 232 230

(second plaintiff)

and

GLADSTONE UNITED PTY LTD ACN 098 085 708

(third plaintiff)

and

WAK GLADSTONE PTY LTD ACN 098 226 343

(fourth plaintiff)

and

DICEY’S GLADSTONE PTY LTD ACN 098 084 372

(fifth plaintiff)

and

BANK OF QUEENSLAND LIMITED ACN 009 656 740

(sixth plaintiff)

v

JACQUELINE PATRICIA MULHERN

(defendant)

FILE NO/S:

BS6655/10

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

9 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2012

JUDGE:

Douglas J

ORDER:

Judgment for the plaintiffs

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where application for summary judgment – where the defendant withdrew money from bank accounts held by the first to fifth plaintiff companies with the sixth plaintiff on 19 May 2010 – where receivers were appointed to the companies on 24 May 2010 under charges given by each of the companies over their assets in favour of the sixth plaintiff – whether the defendant has a real prospect of defending the claim

Fire Nymph Products Ltd v The Heating Centre Pty Ltd (in liq) (1992) 7 ACSR 365 referred

COUNSEL:

B T Porter for the applicant

R Mulhern (self-represented) for the respondent

SOLICITORS:

Dibbs Barker for the applicant

R Mulhern (self-represented) for the respondent

Douglas J: This is a summary judgment application seeking to recover from the defendant money which she withdrew from bank accounts held by the first to fifth plaintiffs with the sixth plaintiff shortly before receivers were appointed to the companies under charges given by each of the companies over their assets in favour of the sixth plaintiff, Bank of Queensland Limited. The receivers were appointed on 24 May 2010 and the monies, totalling $479,466 had been transferred by her into a personal account in her name on 19 May 2010. On 25 May 2010 the plaintiffs obtained Mareva orders freezing the funds in her personal account and those funds were paid into Court on 8 August 2011.

The plaintiffs’ case is that judgment should be given in their favour on three grounds. The first is that the funds taken from the first plaintiff and the second plaintiff totalling $228,176 were the subject of charges which had crystallised on the filing of winding up applications on 29 March 2010 in respect of those companies.

The consequence argued was that the bank, the sixth plaintiff, thus had an equitable proprietary interest in the first two plaintiffs’ assets on and from crystallisation on 29 March 2010 which it was entitled to trace into the funds in the personal account whether or not Mrs Mulhern was arguably a creditor of those companies. The charges provided that the floating component of them would become fixed, amongst other things, if “any step is taken to wind you…

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 Mulhern Constructions v Mulhern

Details

AGLC: Mulhern Constructions v Mulhern [2012] QSC 120
Case: [2012] QSC 120
Decision Date: 9 May 2012

CaseChat Overview and Summary

The case of Mulhern Constructions versus Mulhern involves a claim for summary judgment by the plaintiffs, a group of companies, against the defendant, who had withdrawn money from their bank accounts. The matter was heard in the Supreme Court of Queensland, where the plaintiffs sought to enforce their claims against the defendant through a summary judgment procedure under the Uniform Civil Procedure Rules. The crux of the dispute centred on whether the defendant had any valid defence against the plaintiffs' claims and whether the plaintiffs were entitled to judgment as a matter of law.

The primary legal issue before the court was whether the defendant had a real prospect of successfully defending the plaintiffs' claims for recovery of funds. The plaintiffs argued that the defendant had no valid defence to their claims, as the withdrawal of funds occurred without lawful authority and the defendant had no right to do so. The court had to consider the evidence presented by both parties and determine whether the defendant's defence was sufficient to warrant a trial or if the matter could be resolved as a matter of law.

The court found that the defendant had no real prospect of successfully defending the claims. The evidence indicated that the defendant had acted outside the scope of his authority and without the consent of the companies when he withdrew the funds. The court held that the plaintiffs had established their entitlement to judgment as a matter of law, given the lack of a valid defence. Consequently, the court granted judgment in favour of the plaintiffs, ordering the defendant to pay the sums claimed by the plaintiffs.

Orders

Orders of the court

Judgment for the plaintiffs

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.

CITATION:	Mulhern Constructions & Ors v Mulhern [2012] QSC 120
PARTIES:	MULHERN CONSTRUCTIONS PTY LTD ACN 060 410 102 (first plaintiff) and CELTIC PACIFIC PROPERTIES PTY LTD ACN 071 232 230 (second plaintiff) and GLADSTONE UNITED PTY LTD ACN 098 085 708 (third plaintiff) and WAK GLADSTONE PTY LTD ACN 098 226 343 (fourth plaintiff) and DICEY’S GLADSTONE PTY LTD ACN 098 084 372 (fifth plaintiff) and BANK OF QUEENSLAND LIMITED ACN 009 656 740 (sixth plaintiff) v JACQUELINE PATRICIA MULHERN (defendant)
FILE NO/S:	BS6655/10
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	9 May 2012
DELIVERED AT:	Brisbane
HEARING DATE:	30 April 2012
JUDGE:	Douglas J
ORDER:	Judgment for the plaintiffs
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where application for summary judgment – where the defendant withdrew money from bank accounts held by the first to fifth plaintiff companies with the sixth plaintiff on 19 May 2010 – where receivers were appointed to the companies on 24 May 2010 under charges given by each of the companies over their assets in favour of the sixth plaintiff – whether the defendant has a real prospect of defending the claim Fire Nymph Products Ltd v The Heating Centre Pty Ltd (in liq) (1992) 7 ACSR 365 referred
COUNSEL:	B T Porter for the applicant R Mulhern (self-represented) for the respondent
SOLICITORS:	Dibbs Barker for the applicant R Mulhern (self-represented) for the respondent