Stephens v Ell & Ors

[2002] QSC 166

SUPREME COURT OF QUEENSLAND

[2002] QSC 166
File No 2454 of 2001

BETWEEN:

SUZANNE MARIE STEPHENS

Plaintiff

AND:

WILLIAM ROBERT ELL

First Defendant

AND:

PROPELL DEVELOPMENTS PTY LTD
(ACN 000 976 545)

Second Defendant

AND:

ERRENMORE PTY LTD

(ACN 010 567 745)

Third Defendant

AND:

ECOVALE PTY LTD

(ACN 003 855 061)

Fourth Defendant

AND:

WALLABY HOTEL (MUDGEERABA) PTY LTD

(ACN 002 430 775)

Fifth Defendant

AND:

BAROB PTY LTD

(ACN 001 024 915)

Sixth Defendant

AND:

TERESINA PTY LTD

(ACN 001 666 888)

Seventh Defendant

AND:

KANNAWICK PTY LTD

(ACN 079 906 451)

Eighth Defendant

AND:

HOTEL GRAND CHANCELLOR (BRISBANE) PTY LTD

(ACN 061 467 597)

Ninth Defendant

AND:

LEDA HOLDINGS PTY LTD

(ACN 001 404 557)

Tenth Defendant

AND:

LEDA COMMERCIAL PROPERTIES PTY LTD

(ACN 008 613 447)

Eleventh Defendant

MOYNIHAN J – REASONS FOR JUDGMENT

DELIVERED ON:

12 June 2002

HEARING DATE:

6 March 2002

ORDER:

(a)   There be no order as to the cost of the application of 20 November 2001;

(b)   The application for the disclosure of documents

-     tax returns

-     balance sheet and profit and loss statements; and

-     cash payments books

for the financial years commencing 1995  be adjourned to a date to be fixed.

(c)    The matter be placed on the Supervised Case List, and

(d)   There otherwise be no order as to costs.

CATCHWORDS:

COSTS – outstanding costs from an application brought by the plaintiff–– whether costs of the application be ordered.

COSTS – disclosure – where plaintiff seeks disclosure of financial documents – whether disclosure should be granted.

COSTS – Property Law Act 1974 – s 341 – where party to proceedings bears their own costs unless the Court is satisfied that there are circumstances justifying it making an order – matters Court to take into consideration – whether this case will justify making an order under s341.

Penfold v Penfold (1979-80) 144 CLR 311

Property Law Act 1974 ss 35, 341(1)(2)(3)(4).

COUNSEL:

T D North SC with him P W Hackett for the applicant

T Kirk SC with him R Jones for the defendant

SOLICITORS:

Colwell Wright for the applicant

Hickey Lawyers for the defendants

1. These reasons dispose of:-

1.          The outstanding costs issues following an order on 6 March 2002 dismissing the plaintiff’s application in respect of an undertaking of 22 December 2000, and the plaintiff’s applications for a complying financial statement and further and better particulars.  I published reasons for those issues on 6 March 2002.

2.          It also deals with the plaintiff’s application for the disclosure by the defendants’ of the following records for financial years commencing from 1995.

(a)        Tax Return;

(b)        Balance Sheet and Profit and Loss Statements; and

(c)        Cash Payments Books.

3.          The plaintiff’s application is bought in a claim based essentially on the de facto relationship provision of the Property Law Act 1974 (the Act) as supported by allegations of a constructive trust. An application for the adjustment of property interests may be made under the Act whether or not…