Robson v Robson & Anor

[2008] QSC 238

SUPREME COURT OF QUEENSLAND

CITATION:

Robson v Robson & Anor [2008] QSC 238

PARTIES:

GARY FRANCIS ROBSON

(plaintiff)

AND

CHARLES WILLIAM ROBSON

(first defendant)

AND

SANDRA LEIGH ROBSON

(second defendant)

FILE NO/S:

BS10177 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

3 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2008

JUDGE:

McMurdo J

ORDER:

Paragraphs 3(e) and paragraphs 35 through to 49 of the Defence filed 24 September 2008 are struck out.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – GENERALLY – where plaintiff seeks transfer of company shares - where defendants plead that plaintiff has engaged in fraudulent transactions – whether pleadings adequately particular

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – Particulars – Where particulars of fraudulent allegations are not provided

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471

Raftland Pty Ltd as trustee of the Raftland Trust v Federal Commissioner of Taxation (2008) 82 ALJR 934

Robson v Robson & Anor [2007] QSC 217

COUNSEL:

Mr R Douglas SC with Mr D de Jersey for the plaintiff

Mr AHJ Morris QC for the defendants

SOLICITORS:

Hopgood Ganim for the plaintiff

Russell & Company for the defendants

1. In these proceedings the plaintiff claims to be entitled to one half of the shares in Yalgold Pty Ltd (in liquidation).  At present all of Yalgold’s shares are held by the plaintiff’s brother and sister-in-law, who are the defendants.  Yalgold has been wound up and there is a substantial surplus for distribution to its members.

1. Last year I struck out some paragraphs of the then Defence because they were so devoid of particularity that they would prejudice a fair trial of the action.[1]  Those paragraphs have now reappeared in the current Defence[2], with some amendments. 

   [1]Robson v Robson & Anor [2007] QSC 217.

   [2]Amended 24 September 2008.

1. Last year the plaintiff’s case relied entirely upon a declaration of trust admittedly executed by the defendants in 1989.  The defendants then pleaded, and still plead, that no trust was constituted by that instrument because they had no intention to create a trust, the trust should not be enforced because its execution was procured by unconscionable conduct and undue influence, and the plaintiff had disclaimed the trust and transferred his beneficial entitlement under it to the defendants.  The paragraphs I struck out related to a suggested defence of unclean hands.

1. In essence that case was that the plaintiff had been fraudulent in two ways and that his fraud should disentitle him to equitable relief.  First he had defrauded the Commissioner of Taxation.  I held that the case in that respect was not properly particularised.  The second was that he had defrauded his former wife in proceedings between them in the Family Court, which I held to have no prospects of success because it had no connection with the equity for which the…