Nolan v Warne - [2001] QCA 537

SUPREME COURT OF QUEENSLAND

CITATION: Nolan & Ors v Warne [2001] QCA 537

PARTIES: PATRICK NOLAN and CYNTHIA MARGARET NOLAN (on their own behalf and as trustees of the P S Nolan Family Trust)
(first plaintiff by counterclaim/first appellant)
P S AND C M NOLAN & CO (a firm)
(second plaintiff by counterclaim/second appellant)
NOLAN & CO (a firm)
(third plaintiff by counterclaim/third appellant)
v
MARIA KATHLEEN WARNE
(defendant by counterclaim/respondent)

FILE NO/S: Appeal No 3930 of 2001
SC No 2394 of 1997

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 30 November 2001

DELIVERED AT: Brisbane

HEARING DATE: 19 November 2001

JUDGES: McPherson JA, Mackenzie and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Appeal dismissed with costs

CATCHWORDS:
EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – CONSIDERATIONS UPON WHICH COURT EXERCISES DISCRETION – FUTILITY OF REMEDY – where appellants sought inter alia a mandatory order or injunction that the respondent remove a levy bank from her land – whether the trial Judge should have ordered the injunction – where, by the time of the appeal, the levy bank had in fact been removed

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellants knew that the levy bank had been removed – whether the appellants should pay the respondent’s costs of and incidental to the appeal

Corbett v Pallas (1995) Aust Torts R 81-329, considered
Gartner v Kidman (1962) 108 CLR 12, applied
Golden Casket Art Union Office, Re [1995] 2 Qd R 346, considered
Kidman v Page [1959] Qd R 53, considered
R v Gold Coast City Council, ex parte Raysun Pty Ltd [1971] QWN 13, considered
Scott v Shepherd (1773) 2 W Bl 892; 96 ER 525, considered

COUNSEL: E J Lennon QC for the appellants
J C Bell QC, with J McKenna, for the respondent

SOLICITORS: Gadens Lawyers for the appellants
McCullough Robertson for the respondent

McPHERSON JA: The respondent Mrs Warne and the appellants Mr and Mrs Nolan own adjoining properties in the Warra district northwest of Jandowae near Dalby in southern Queensland. The Nolans’ property Corella is north of Mrs Warne’s property Winya Park, which is divided by Haystack Lane into Winya Park North and Winya Park South. The appearance of the three properties can perhaps best be visualised in plan by imagining them as two square envelopes placed one (Corella) above the other (Winya Park South), with a smaller square, like a postage stamp representing Winya Park North placed unconventionally in the lower left, instead of the upper right hand, corner. The properties are used for agriculture. In evidence, the crops growing on Corella are described as including wheat, sorghum and cotton.

When Mrs Warne and her late husband acquired Winya Park in 1958, there was a levee bank on the property. It was -shaped and ran in an…

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 Nolan v Warne

Details

AGLC: Nolan v Warne [2001] QCA 537
Case: [2001] QCA 537
Decision Date: 30 November 2001

CaseChat Overview and Summary

The appeal in Nolan v Warne involved the appellants, who sought an injunction for the removal of a levy bank from the respondent's land. The case was heard in the Queensland Court of Appeal. The appellants sought an inter alia mandatory order or injunction compelling the respondent to remove the levy bank. The central issue was whether the trial judge had the discretion to order the injunction, particularly considering the fact that by the time of the appeal, the levy bank had already been removed by the respondent.

The court examined the considerations upon which it exercises discretion to grant an injunction, with a particular focus on the futility of the remedy. Given that the levy bank had already been removed, the court had to determine if it was appropriate to order the injunction in light of this development. The court also considered the broader principles governing the exercise of discretion in equity, including the futility of the remedy. The appeal raised questions about the trial judge’s jurisdiction and the procedural fairness in maintaining the injunction despite the change in circumstances.

The Court of Appeal dismissed the appeal, concluding that the trial judge was correct in not ordering the injunction, as it would have been futile given the removal of the levy bank. The court further held that the appellants, who were aware that the levy bank had been removed, should pay the respondent’s costs of and incidental to the appeal. The appeal was dismissed with costs, affirming the lower court's decision and upholding the procedural integrity of the appeal process.

Orders

Orders of the court

Appeal dismissed with costs

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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CITATION:	Nolan & Ors v Warne [2001] QCA 537
PARTIES:	PATRICK NOLAN and CYNTHIA MARGARET NOLAN (on their own behalf and as trustees of the P S Nolan Family Trust) (first plaintiff by counterclaim/first appellant) P S AND C M NOLAN & CO (a firm) (second plaintiff by counterclaim/second appellant) NOLAN & CO (a firm) (third plaintiff by counterclaim/third appellant) v MARIA KATHLEEN WARNE (defendant by counterclaim/respondent)
FILE NO/S:	Appeal No 3930 of 2001 SC No 2394 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 November 2001
DELIVERED AT:	Brisbane
HEARING DATE:	19 November 2001
JUDGES:	McPherson JA, Mackenzie and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – CONSIDERATIONS UPON WHICH COURT EXERCISES DISCRETION – FUTILITY OF REMEDY – where appellants sought inter alia a mandatory order or injunction that the respondent remove a levy bank from her land – whether the trial Judge should have ordered the injunction – where, by the time of the appeal, the levy bank had in fact been removed APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appellants knew that the levy bank had been removed – whether the appellants should pay the respondent’s costs of and incidental to the appeal Corbett v Pallas (1995) Aust Torts R 81-329, considered Gartner v Kidman (1962) 108 CLR 12, applied Golden Casket Art Union Office, Re [1995] 2 Qd R 346, considered Kidman v Page [1959] Qd R 53, considered R v Gold Coast City Council, ex parte Raysun Pty Ltd [1971] QWN 13, considered Scott v Shepherd (1773) 2 W Bl 892; 96 ER 525, considered
COUNSEL:	E J Lennon QC for the appellants J C Bell QC, with J McKenna, for the respondent
SOLICITORS:	Gadens Lawyers for the appellants McCullough Robertson for the respondent