Wilson v Orreal - [2012] QSC 315

SUPREME COURT OF QUEENSLAND

CITATION:

Wilson v Orreal [2012] QSC 315

PARTIES:

EDGAR WILSON by his Litigation Guardian David Edgar Wilson & Vanessa Berthelsen

(Plaintiff)

And

DEBRA ANN ORREAL

(Defendant)

FILE NO/S:

S7/06; 1241/06 and 9490/06

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

19 October 2012

DELIVERED AT:

Rockhampton

HEARING DATE:

8 October 2012

JUDGE:

McMeekin J

ORDERS:

1.           The application brought by Ms Berthelsen and Mr David Wilson is dismissed;

2.           Ms Berthelsen and Mr David Wilson are ordered to pay the costs of Ms Orreal and of the Public Trustee of and incidental to the application to set aside the orders of Applegarth J made on 19 August 2011 on the indemnity basis;

3.           Ruth Chowdury is appointed to assess, and issue a certificate of assessment, with respect to the costs the subject of the order of Applegarth J made on 19 August 2011 (namely the defendant’s costs of and incidental to the proceedings 07/2006) on the indemnity basis; and

4.           Ms Berthelsen and Mr David Wilson are ordered to pay the costs of Ms Orreal of and incidental to the application to appoint Ms Chowdury on the standard basis.

.

CATCHWORDS:

PRACTICE – SETTING ASIDE ORDER – where service is in issue – where fraud alleged

Guardianship and Administration Act 2000 ss 26, 239

Succession Act 1981 s 45

Uniform Civil Procedure Rules 1999 rr 17, 31, 72, 93, 95, 112, 667

Almack v Moore (1878) 2 LR Ir 90

Re Brocklebank (1877) 6 Ch D 358

South Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541

Sproule v Long [2000] QSC 232

Stephenson v Geiss [1998] Qd R 542

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

COUNSEL:

The applicant in person

Mr Madders (solicitor) for the defendant

Mr Agbejule (solicitor) for the Public Trustee of Queensland

SOLICITORS:

The applicant in person

Charltons Lawyers for the defendant

Official Solicitor to the Public Trustee Of Queensland

McMeekin J: There are two applications before the court. In one the defendant, Ms Orreal, seeks that Ms Ruth Chowdury be appointed to assess the costs that Applegarth J ordered on 19 August 2011 be paid by the “purported litigation guardians” of the late Mr Edgar Wilson, a reference to Mr David Wilson and Ms Berthelsen. In the other Mr David Wilson and Ms Berthelsen apply, inter alia, to have Applegarth J’s orders made on 19 August 2011 in three proceedings set aside on the grounds that the orders were made in the absence of “the Plaintiff” and were obtained by fraud.

I will refer to Mr David Wilson and Ms Berthelsen as the applicants and Ms Orreal as the respondent. Ms Berthelsen appeared. She was not legally represented. Ms Berthelsen informed me that Mr David Wilson has signed the application. Mr David Wilson did not appear, apparently being content to let Ms Berthelsen represent his interests.

If the orders of Applegarth J stand then there is no opposition to the orders sought by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wilson v Orreal

Details

AGLC: Wilson v Orreal [2012] QSC 315
Case: [2012] QSC 315
Decision Date: 19 October 2012

CaseChat Overview and Summary

The application was brought by Ms Berthelsen and Mr Wilson against Ms Orreal. The applicants sought to set aside orders made by Applegarth J on 19 August 2011, and for costs to be assessed. The applicants alleged that the orders were obtained by fraud. The matter was heard in the Supreme Court of New South Wales.

The court had to decide whether the orders made by Applegarth J could be set aside on the grounds of fraud. The applicants argued that they had not been properly served with the originating process and that the orders were obtained as a result of fraud. The respondents, Ms Orreal and the Public Trustee, argued that the applicants had not provided evidence to support their claims and that the application should be dismissed. The court had to consider whether the applicants had established that the orders were obtained by fraud and whether the application should be dismissed on the basis that it was an abuse of process.

The court found that the applicants had not established that the orders were obtained by fraud. The court held that the applicants had failed to provide evidence to support their claims and that the application was an abuse of process. The court dismissed the application and ordered the applicants to pay the costs of the respondents on the indemnity basis. The court also appointed Ruth Chowdury to assess and issue a certificate of assessment with respect to the costs of the proceedings. The applicants were also ordered to pay the costs of the application to appoint Ms Chowdury on the standard basis.

The court's final orders were that the application brought by Ms Berthelsen and Mr Wilson is dismissed, that they are ordered to pay the costs of Ms Orreal and of the Public Trustee of and incidental to the application to set aside the orders of Applegarth J made on 19 August 2011 on the indemnity basis, that Ruth Chowdury is appointed to assess, and issue a certificate of assessment, with respect to the costs the subject of the order of Applegarth J made on 19 August 2011 on the indemnity basis, and that Ms Berthelsen and Mr Wilson are ordered to pay the costs of Ms Orreal of and incidental to the application to appoint Ms Chowdury on the standard basis.

Orders

Orders of the court

1. The application brought by Ms Berthelsen and Mr David Wilson is dismissed;

2. Ms Berthelsen and Mr David Wilson are ordered to pay the costs of Ms Orreal and of the Public Trustee of and incidental to the application to set aside the orders of Applegarth J made on 19 August 2011 on the indemnity basis;

3. Ruth Chowdury is appointed to assess, and issue a certificate of assessment, with respect to the costs the subject of the order of Applegarth J made on 19 August 2011 (namely the defendant’s costs of and incidental to the proceedings 07/2006) on the indemnity basis; and

4. Ms Berthelsen and Mr David Wilson are ordered to pay the costs of Ms Orreal of and incidental to the application to appoint Ms Chowdury on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

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.

CITATION:	Wilson v Orreal [2012] QSC 315
PARTIES:	EDGAR WILSON by his Litigation Guardian David Edgar Wilson & Vanessa Berthelsen (Plaintiff) And DEBRA ANN ORREAL (Defendant)
FILE NO/S:	S7/06; 1241/06 and 9490/06
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	19 October 2012
DELIVERED AT:	Rockhampton
HEARING DATE:	8 October 2012
JUDGE:	McMeekin J
ORDERS:	1. The application brought by Ms Berthelsen and Mr David Wilson is dismissed; 2. Ms Berthelsen and Mr David Wilson are ordered to pay the costs of Ms Orreal and of the Public Trustee of and incidental to the application to set aside the orders of Applegarth J made on 19 August 2011 on the indemnity basis; 3. Ruth Chowdury is appointed to assess, and issue a certificate of assessment, with respect to the costs the subject of the order of Applegarth J made on 19 August 2011 (namely the defendant’s costs of and incidental to the proceedings 07/2006) on the indemnity basis; and 4. Ms Berthelsen and Mr David Wilson are ordered to pay the costs of Ms Orreal of and incidental to the application to appoint Ms Chowdury on the standard basis. .
CATCHWORDS:	PRACTICE – SETTING ASIDE ORDER – where service is in issue – where fraud alleged Guardianship and Administration Act 2000 ss 26, 239 Succession Act 1981 s 45 Uniform Civil Procedure Rules 1999 rr 17, 31, 72, 93, 95, 112, 667 Almack v Moore (1878) 2 LR Ir 90 Re Brocklebank (1877) 6 Ch D 358 South Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541 Sproule v Long [2000] QSC 232 Stephenson v Geiss [1998] Qd R 542 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
COUNSEL:	The applicant in person Mr Madders (solicitor) for the defendant Mr Agbejule (solicitor) for the Public Trustee of Queensland
SOLICITORS:	The applicant in person Charltons Lawyers for the defendant Official Solicitor to the Public Trustee Of Queensland