O'Brien v Robsyn Pty Ltd - [2011] QSC 399

SUPREME COURT OF QUEENSLAND

CITATION:

O’Brien v Robsyn Pty Ltd [2011] QSC 399

PARTIES:

PATRICIA MAY O’BRIEN as TRUSTEE FOR THE JT & PM O’BRIEN SUPERANNUATION FUND
(Applicant)
v
ROBSYN PTY LTD (ACN 073 558 611 in liquidation)
(Respondent)

FILE NO/S:

353 of 2011

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

7 October 2011 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

16 September 2011 and 5 October 2011

JUDGE:

Henry J

ORDER:

In respect of the application filed 2 September 2011 I:

declare that the applicant is the legal owner of the property located at lot 147 on SP140116 County of Stanley Parish of North Brisbane, title reference 50494813 (“the property”) as trustee for the JT & PM O’Brien Superannuation Fund.

order the respondent to sign all such documents and to do all such things as may be necessary or convenient to transfer the title of the property from the respondent to the applicant;

order that the respondent and Peter Dinoris pay the applicant’s costs of and incidental to the application on the standard basis.

In respect of the 11 paragraph application (referred to in my reasons as the second application) filed 28 September 2011, I order:

that the application be dismissed;

that, by consent:

(a)   at any settlement of a contract for the sale of the property located at lot 147 on SP140116 County of Stanley Parish of North Brisbane title reference 50494813 (“the property”) entered into by the applicant, the applicant will cause a cheque to be paid into this honourable Court in the sum of $60,000 (“the fund”);

(b)   in the event that no proceedings are commenced by the respondent within two months of the date of the above payment into Court and served on the solicitors for the applicant, the fund is to be released by this honourable Court to the applicant and an affidavit by the solicitors for the applicant deposing to the fact that no proceedings have been served on them will be sufficient for the purposes of such release;

(c)    otherwise, the fund is only to be released by this honourable Court:

(i)         to the party/parties nominated in a consent signed by both parties and filed in this proceeding; or

(ii)        in accordance with an order of this honourable Court;

(d)   either party has liberty to apply on the giving of two business days notice to the other party on any matters necessary to carry into effect the orders and/or directions of the Court dated 7 October 2011;

that there be no order as to costs in respect of this application.

In respect of the four paragraph application (referred to in my reasons as the third application), I order that the respondent and Peter Dinoris pay the applicant’s costs of and incidental to the application to be assessed on the standard basis (to remove doubt, the application as referred to throughout these orders is Patricia May O’Brien as trustee for the JT & PM O’Brien Superannuation Fund and the…

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.

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Details

Case: [2011] QSC 399
Decision Date: 7 October 2011 (ex tempore)

CaseChat Overview and Summary

In the matter of O’Brien v Robsyn Pty Ltd, the primary issue before the court was whether the applicant, Patricia May O’Brien as trustee for the JT & PM O’Brien Superannuation Fund, was the legal owner of the property located at lot 147 on SP140116 County of Stanley Parish of North Brisbane. The respondent, Robsyn Pty Ltd, was in liquidation and had been appointed as trustee of the property without any transfer of title. The applicant had subsequently been appointed as trustee without a transfer of title as well. The court was tasked with determining the rightful legal owner of the property and whether the respondent was entitled to an indemnity or recoupment against trust assets.

The court found that the assets in question were indeed held on trust for the JT & PM O’Brien Superannuation Fund, despite the absence of any reference on the title registration to the respondent’s status as trustee. The change in trustee without a transfer of title did not affect the underlying trust. The court noted that the applicant was entitled to be declared the legal owner of the property as trustee for the superannuation fund. The court further ruled that the respondent and Peter Dinoris were to pay the applicant’s costs on the standard basis.

In relation to the second application, the court dismissed it but made orders concerning a fund of $60,000 to be paid into court upon the settlement of any sale of the property. The fund was to be released under specific conditions, including if no proceedings were initiated by the respondent within two months of the payment. The court also granted liberty to either party to apply for necessary matters to enforce its orders. Costs in respect of this application were not ordered.

Finally, the court ordered that the respondent and Peter Dinoris pay the applicant’s costs of the third application on the standard basis. This decision clarified the ownership of the property and the financial responsibilities of the parties involved, ensuring the protection of the trust assets.

Orders

Orders of the court

In respect of the application filed 2 September 2011 I:

1. declare that the applicant is the legal owner of the property located at lot 147 on SP140116 County of Stanley Parish of North Brisbane, title reference 50494813 (“the property”) as trustee for the JT & PM O’Brien Superannuation Fund.

2. order the respondent to sign all such documents and to do all such things as may be necessary or convenient to transfer the title of the property from the respondent to the applicant;

3. order that the respondent and Peter Dinoris pay the applicant’s costs of and incidental to the application on the standard basis.

In respect of the 11 paragraph application (referred to in my reasons as the second application) filed 28 September 2011, I order:

1. that the application be dismissed;

2. that, by consent:

(a) at any settlement of a contract for the sale of the property located at lot 147 on SP140116 County of Stanley Parish of North Brisbane title reference 50494813 (“the property”) entered into by the applicant, the applicant will cause a cheque to be paid into this honourable Court in the sum of $60,000 (“the fund”);

(b) in the event that no proceedings are commenced by the respondent within two months of the date of the above payment into Court and served on the solicitors for the applicant, the fund is to be released by this honourable Court to the applicant and an affidavit by the solicitors for the applicant deposing to the fact that no proceedings have been served on them will be sufficient for the purposes of such release;

(i) to the party/parties nominated in a consent signed by both parties and filed in this proceeding; or

(ii) in accordance with an order of this honourable Court;

(d) either party has liberty to apply on the giving of two business days notice to the other party on any matters necessary to carry into effect the orders and/or directions of the Court dated 7 October 2011;

1. that there be no order as to costs in respect of this application.

In respect of the four paragraph application (referred to in my reasons as the third application), I order that the respondent and Peter Dinoris pay the applicant’s costs of and incidental to the application to be assessed on the standard basis (to remove doubt, the application as referred to throughout these orders is Patricia May O’Brien as trustee for the JT & PM O’Brien Superannuation Fund and the respondent is Robsyn Pty Ltd (in liquidation) ACN 073 558 611).

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:	O’Brien v Robsyn Pty Ltd [2011] QSC 399
PARTIES:	PATRICIA MAY O’BRIEN as TRUSTEE FOR THE JT & PM O’BRIEN SUPERANNUATION FUND (Applicant) v ROBSYN PTY LTD (ACN 073 558 611 in liquidation) (Respondent)
FILE NO/S:	353 of 2011
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	7 October 2011 (ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	16 September 2011 and 5 October 2011
JUDGE:	Henry J
ORDER:	In respect of the application filed 2 September 2011 I: declare that the applicant is the legal owner of the property located at lot 147 on SP140116 County of Stanley Parish of North Brisbane, title reference 50494813 (“the property”) as trustee for the JT & PM O’Brien Superannuation Fund. order the respondent to sign all such documents and to do all such things as may be necessary or convenient to transfer the title of the property from the respondent to the applicant; order that the respondent and Peter Dinoris pay the applicant’s costs of and incidental to the application on the standard basis. In respect of the 11 paragraph application (referred to in my reasons as the second application) filed 28 September 2011, I order: that the application be dismissed; that, by consent: (a) at any settlement of a contract for the sale of the property located at lot 147 on SP140116 County of Stanley Parish of North Brisbane title reference 50494813 (“the property”) entered into by the applicant, the applicant will cause a cheque to be paid into this honourable Court in the sum of $60,000 (“the fund”); (b) in the event that no proceedings are commenced by the respondent within two months of the date of the above payment into Court and served on the solicitors for the applicant, the fund is to be released by this honourable Court to the applicant and an affidavit by the solicitors for the applicant deposing to the fact that no proceedings have been served on them will be sufficient for the purposes of such release; (c) otherwise, the fund is only to be released by this honourable Court: (i) to the party/parties nominated in a consent signed by both parties and filed in this proceeding; or (ii) in accordance with an order of this honourable Court; (d) either party has liberty to apply on the giving of two business days notice to the other party on any matters necessary to carry into effect the orders and/or directions of the Court dated 7 October 2011; that there be no order as to costs in respect of this application. In respect of the four paragraph application (referred to in my reasons as the third application), I order that the respondent and Peter Dinoris pay the applicant’s costs of and incidental to the application to be assessed on the standard basis (to remove doubt, the application as referred to throughout these orders is Patricia May O’Brien as trustee for the JT & PM O’Brien Superannuation Fund and the…