Oliver v Zhouand

Case [2025] QSC 272

SUPREME COURT OF QUEENSLAND

CITATION:

Oliver v Zhouand [2025] QSC 272

PARTIES:

DANIEL FREDERICK OLIVER

(plaintiff)

v
SAMAY ZHOUAND

(first defendant)
AND
THE PUBLIC TRUSTEE OF QUEENSLAND

(second defendant)

FILE NO/S:

BS No 16366 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

22 October 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2025

JUDGE:

Kelly J

ORDER:

1.   The plaintiff’s applications filed 3 April 2025 and 5 June 2025 are dismissed.

2.   The proceeding is permanently stayed as an abuse of process.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO PREVENT ABUSE OF PROCESS – GENERALLY – Where the plaintiff claims damages against the defendants in relation to the administration of his deceased brother’s estate – where the defendants filed an application seeking an order permanently staying the proceeding or an order striking out the plaintiff’s pleading with no leave to replead – where the approach to summary termination or determination is attended with caution – where rr 16(g) and (i) of the Uniform Civil Procedure Rules 1999 (Qld) provide that the court may stay a proceeding or make another order the court considers appropriate – where superior courts have an inherent jurisdiction to stay proceedings which amount to an abuse of process – where a pleading must not oppress a defendant by vague or uncertain allegations, lacking particularity – where the plaintiff’s pleading makes allegations against the defendants that are vague, uncertain and lacking in particularity – where the plaintiff has no standing to bring any such claims – whether the proceeding should be permanently stayed as an abuse of process

Bankruptcy Act 1996 (Cth), s 58, s 116
Mental Health Act 1974 (Qld), s 55
Succession Act 1981 (Qld), s 45(1), s 45(2)

Uniform Civil Procedure Rules1999 (Qld), r 16(g), r (16(i), r 293

Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256, cited
Impiombato v BHP Group Ltd (No 2) [2020] FCA 1720, cited
Mio Art Pty Ltd v Macequest Pty Ltd (2013) 95 ACSR 583
Polar Aviation Pty Ltd v Civil Aviation Safety Authority(No 4) (2011) 203 FCR 293, cited
Public Trustee of Queensland v Oliver [2017] QCA 73, related

Spencer v The Commonwealth (2010) 241 CLR 118, cited

COUNSEL:

The plaintiff appeared on his own behalf

S A Amos for the defendants

SOLICITORS:

The plaintiff appeared on his own behalf
Crown Law for the defendants

Competing applications by the plaintiff and the defendants

  1. On 11 December 2024, the plaintiff, Mr Daniel Oliver, started this proceeding by originating application against Mr Samay Zhouand, the first defendant, and the Public Trustee of Queensland (“the Public Trustee”), the second defendant. Mr Zhouand is variously described in the plaintiff’s written material as “the 2019 Acting Public Trustee of Queensland”[1]  and the “2025 Public Trustee of Queensland”.[2]

    [1]Second affidavit of David Coco, exhibit DC-10.

    [2]CFI 13.

  2. By an order dated 7 January 2025,…

Continue reading Oliver v Zhouand

Sign in free to access the full text

Details
AGLC
Oliver v Zhouand [2025] QSC 272
Case
[2025] QSC 272
Decision Date

CaseChat Overview and Summary

In the case of Oliver v Zhouand, the plaintiff, who is the brother of the deceased, Steele William Oliver, commenced proceedings against the Public Trustee and others in relation to the administration of his brother’s estate. The plaintiff sought damages and various other reliefs against the defendants. The defendants filed an application seeking an order permanently staying the proceeding or an order striking out the plaintiff’s pleading with no leave to replead. The legal issues before the court involved whether the proceeding should be permanently stayed as an abuse of process due to the plaintiff’s vague and uncertain allegations and lack of standing.

The court considered the inherent jurisdiction to stay proceedings amounting to an abuse of process and the provisions of the Uniform Civil Procedure Rules 1999 (Qld). It found that the plaintiff’s pleading was indeed vague, uncertain and lacking in particularity. The court further held that the plaintiff did not have standing to bring any of the claims made against the defendants. Given these findings, the court concluded that the proceeding should be permanently stayed as an abuse of process.

The court dismissed the plaintiff’s applications and ordered that the proceeding be permanently stayed as an abuse of process. This outcome reflected the court’s view that allowing the proceeding to continue would be unjust and would amount to an abuse of the court's process.

Orders

Orders of the court

1. The plaintiff’s applications filed 3 April 2025 and 5 June 2025 are dismissed.

2. The proceeding is permanently stayed as an abuse of process.

Background

Background to the litigation

The Public Trustee did not press its application for summary judgment and submitted that r 293 is only engaged where a defence has been filed. The Public Trustee submitted that the appropriate orders were an order permanently staying the proceeding or an order striking out the pleading with no leave to replead. Background to this proceeding The plaintiff is the brother of the late Mr Steele William Oliver (“the deceased”). For most of his adult life, the deceased suffered from severe and chronic schizophrenia. The deceased was confined in hospital from around the age of 19 years old until his death at the age of 61 years old. The deceased never married and had no children. He had four siblings, two sisters, Mrs Jennifer McBride and Ms Lynette Mason, and two brothers, the plaintiff and Mr Russell Oliver. On 28 May 1990, the Public Trustee was appointed as the deceased’s administrator for all financial matters on and from 28 May 1990. That appointment was successively continued by various orders of the Guardianship Administration Tribunal and the Queensland Civil and Administrative Tribunal. On 11 October 2011, the deceased executed a will (“the Will”). On 25 July 2012, the plaintiff entered bankruptcy and Mr David Hambleton was appointed his trustee in bankruptcy. On 18 November 2014, the deceased died. On 2 March 2016, the Public Trustee applied for probate of the Will. On 24 March 2016, the plaintiff lodged a caveat in the probate proceeding. The Public Trustee’s application for probate of the Will was heard by Dalton J on 10 November 2016. On 18 November 2016, Dalton J declared that the Will was not a valid Will. Her Honour was not persuaded that the deceased had capacity at the time of the Will but also found that, on the basis of the evidence then before the court, it was “clear that the deceased man’s mental state was one which fluctuated from time to time”. Dalton J refused to appoint the plaintiff as the administrator. Her Honour observed that the plaintiff was not at that time in communication with his sisters and was “not able to rationally and impartially fulfill the duties of administrator”. By an order dated 18 November 2016, Dalton J appointed the Public Trustee as the administrator of the deceased’s estate on intestacy. On 3 February 2017, the applicant commenced a proceeding by way of originating application against the Public Trustee. In that proceeding, the plaintiff sought to remove the Public Trustee as the administrator of the deceased’s estate and sought to have his wife appointed as the replacement administrator. The plaintiff’s trustee in bankruptcy did not consent to the application. On 9 February 2017, Boddice J dismissed that proceeding and ordered the plaintiff pay the Public Trustee’s and the plaintiff’s trustee in bankruptcy’s costs of the application on the standard basis. Boddice J further ordered that to the extent that the Public Trustee’s costs of the application on the indemnity basis were not recovered pursuant to the costs order, the Public Trustee was entitled to deduct the same from the share of the estate of the plaintiff which was vested in the plaintiff’s trustee in bankruptcy and to the extent, if any, that share was insufficient, from the other assets of the deceased’s estate.

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.