Welland v Payne

[2000] QSC 431

SUPREME COURT OF QUEENSLAND

CITATION:

Welland v Payne [2000] QSC 431

PARTIES:

BRETT GARY STEVEN WELLAND
(plaintiff/applicant)
v
BRIAN RALPH PAYNE
(first defendant)
and
CAL-MAC PTY LTD
(second defendant/respondent)

FILE NO:

1022 of 1995

DIVISION:

Trial Division

DELIVERED ON:

28 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2000

JUDGE:

Mullins J

ORDER:

Application filed on 1 September 2000 be adjourned to a date to be fixed. 

CATCHWORDS:

TRUSTS AND TRUSTEES – APPOINTMENT OF TRUSTEES – adult capable of giving instructions to settle claim for damages – psychiatrist's opinion that adult unable to control a large sum of money – application for appointment of trustee under inherent jurisdiction – application of Guardianship and Administration Act 2000.

Guardianship and Administration Act 2000
Public Trustee Act 1978

Cocchi v Cocchi [1989] 1QdR 226
H v Nominal Defendant [1997] QSC 233
Morris v Mills (unreported, 20 August 1999)

COUNSEL:

S T Farrell for the applicant
P Miller (solicitor) for the respondent

SOLICITORS:

MurphySchmidt for the applicant
Gadens Lawyers for the respondent

1. MULLINS J:  On 21 June 2000 the applicant, Brett Gary Steven Welland, who is the plaintiff in this action settled his claim for damages for assault.  The plaintiff had been assaulted during an incident at the Calamvale Hotel on 1 January 1989 and suffered a closed head injury.  The terms of the settlement were that the second defendant who is the respondent to this application pay to the applicant the sum of $485,000 plus costs and fund administration fees. 

1. The applicant filed this application on 1 September 2000 seeking orders in relation to the payment of the settlement sum.  This course was adopted, because of an opinion expressed by psychiatrist Dr Peter Mulholland in his medical report dated 30 September 1998 given in connection with the action as follows:

"I would have a concern regarding his having control over a large sum of money if he was to receive same as a result of this Court case.  He does have a frontal lobe syndrome and he is prone to mood swings and I would be concerned about his being reckless or impulsive and with his being easily led by others.  Therefore I would have a concern that if he had control over and access to a large sum of money then he would not be able to handle it responsibly in the long run, hence my advice that it would be preferable if a Protection Order was taken out and his moneys managed by the Public Trustee.  I do not have any concern about his handling normal small sums of day by day moneys but that is an entirely different thing to handling a large lump sum which is meant to last him for the rest of his life."

1. The primary relief sought in the application is that Mr Lawrence James Cooper, the applicant's father-in-law who was also served with the application, be appointed trustee of the settlement sum after payment of the applicant's legal costs and outlays arising from the…