Robson v. Robson & Anor

[2007] QSC 217

SUPREME COURT OF QUEENSLAND

CITATION:

Robson v Robson & Anor [2007] QSC 217

PARTIES:

GARY FRANCIS ROBSON
(plaintiff)
v
CHARLES WILLIAM ROBSON
(first defendant)
SANDRA LEIGH ROBSON
(second defendant)

FILE NO/S:

BS10177 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

17 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2007

JUDGE:

Philip McMurdo J

ORDER:

1.   Paragraphs 2(f) and 34 to 53 inclusive of the Third Further Amended Defence will be struck out.

2.   Cross application by the defendants to have these proceedings heard together with other proceedings be dismissed.

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 unclean hands as relief would give access to proceeds of fraud against Commonwealth and fraud in a separate Family Court matter– whether pleadings adequately particularised – whether pleading discloses reasonable defence

Uniform Civil Procedure Rules 1999 (Qld), r 171(1)(a), r 171(1)(b)

Meyers v Casey (1913) 17 CLR 90

COUNSEL:

RJ Douglas SC, with DP de Jersey, for the plaintiff
AJH Morris QC for the first and second defendants

SOLICITORS:

Hopgood Ganim for the plaintiff
Russell and Company for the first and second defendants

1. MCMURDO J:  In this proceeding the plaintiff sues his brother and sister‑in‑law, claiming orders that they transfer to him one half of the shares in a company of which they are the only shareholders.  That company is Yalgold Pty Ltd (in liquidation) (“Yalgold”) and the plaintiff’s claim is to enforce the terms of a declaration of trust executed by the defendants on or about 28 April 1989.

1. Until the amendments the subject of the present application, the defendants’ case was that no trust was constituted because they had no intention to create a trust or that the trust should not be enforced because its execution was procured by unconscionable conduct and undue influence, or that the plaintiff had disclaimed the trust and transferred his beneficial entitlement under it to the defendants.

1. On 16 July 2007 the defendants filed their Second Further Amended Defence and the plaintiff then filed an application to strike out the paragraphs which had been added by that pleading.  The defendants then filed the Third Further Amended Defence which met some, but not most, of the plaintiff’s complaints about its predecessor.  This then is an application to strike out parts of this most recent Defence.  As argued, the application is made under UCPR r 171(1)(a) or r 171(1)(b), in that these parts of the pleading disclose no reasonable defence or tend to prejudice or delay a fair trial.

1. In essence, the defendants here plead that the plaintiff should be refused relief because of conduct that amounts to unclean hands.  They plead that to grant the relief sought would be to aid the plaintiff to recover the benefits from what they allege was his fraud.  However by this most recent pleading, the defendants do…