Queensland Judgments


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  • Unreported Judgment

Turner v Osborne


[2003] QSC 421




No BS8717 of 2003 and No BS9621 of 2003








DATE 13/11/2003


HIS HONOUR: The proceedings today arise from an applicant to set aside a caveat over a parcel of land at Wolvi. Justice Mullins ordered that the caveat be removed and that half the proceeds be held in a solicitor's trust account. There is a chronology of events which I will not repeat in the submissions by Mr Sheaffe.

The fact that proceedings have been commenced in this Court in respect of a declaration of rights concerning the parcel of land is pivotal to Mr Turner's application. It appears that the Registrar in the Family Court application may have acted on the impression that the Supreme Court proceedings extended to the full ambit of what might be the subject of the claim for a constructive trust in the matrimonial proceedings, whereas it is not clear now, at least, that that is now the case. In fact it is probably clear that it is not the case.

The affidavit of Mr Osborne refers to other properties in the Wolvi district as well as the lot involved in the caveat removal proceedings. The case that is outlined in his latest affidavit seems to be based on conversations that he said occurred and a document that he says existed to the same affect that he was to be given rights over Wolvi properties. In that sense, since the claim seems to be based on a conversation of that nature and not ones specifically related to the parcel that was the subject of the proceedings to remove the caveat, any decision in this Court - if not decisive of the whole issue - would at least be persuasive in other proceedings.

It is plain enough however that it is not desirable that there be a risk of conflicting decisions or a piecemeal approach to the issue. The Supreme Court proceedings of course presumably could be expanded by an appropriate pleading to include all of the properties which are said to be the subject of the claim in the proceedings.

It is - I think - plain enough from the way that the matter has developed that the question of which of the respective Courts should deal with the matter is a fundamental issue. That raises as one issue whether the case is attracted to the jurisdiction of the Family Court in its accrued jurisdiction. In that regard the authorities of re Wakim ex parte McNally 1999, 198 Commonwealth Law Reports 511, Warby and Warby 2001, 28 Family Law Reports 443, Finlayson against Finlayson and Gillum 2002 Family CA898 and my own decision in Foley and Farquarson 2003 QSC 021, are of relevance. There is of course no application before me today to transfer the proceedings to the Family Court. And there is also today no dispute that the money should continue to be held in trust pending the outcome of the proceedings - whatever they maybe.

The only issue is whether I should give directions about progressing the Supreme Court proceedings. I have decided that it is premature to do that at this point. The main reason is that the question of joinder of Mr Turner in the Family Court proceedings is yet to be definitively determined. It is said that it is a matter of right. I have also been told that the decision of the Registrar is to be the subject of a further hearing by a Judge. I am not told precisely when but I am told that it is expected to be heard soon.

Given the issue of whether the Registrar acted in the belief that the whole ambit of matters determining rights to property would be dealt with in the Supreme Court proceedings as presently constituted, the effect of any mistaken belief in which the Registrar acted will presumably have to be resolved if that was the case and the evidence is different. The question will be what effect that has? If Mr Turner is joined, there may still be a question of the accrued jurisdiction to deal with this particular claim which may have to be determined and perhaps the issue of transfer of the present proceedings in this Court to the Family Court or alternatively the expansion of the Supreme Court proceedings to deal with the whole of the properties which are said to be in issue.

It is for those reasons principally that I have decided that it would be premature to make directions with a view to progressing the Supreme Court proceedings.

HIS HONOUR: It's premature to make directions. Mr Hay has pointed out that his instructions are and his submission is that if I were disinclined to make the directions, the injunction should be removed. It was submitted that there is no suggestion that if the respondent were to suffer irreparable harm if the injunction was not lifted and that if the respondent was vindicated, he could be compensated by way of payment from the applicant. It is said also that Mr Osborne has said that he is impecunious and that therefore his undertaking as to damages is worthless.

The case is fairly obviously one that should be dealt with as expeditiously as possible but unfortunately since the jurisdiction is now arguably split between two Courts, or at least able to be decided by either the Family Court or this Court, a decision will ultimately have to be made as to where it is to be most expeditiously dealt with. It seems to me that since that issue may well be resolved fairly promptly it is probably desirable to maintain, in respect of the money, the restraint which has existed since Justice Mullins' order.

So the order that I will make is that order two of Justice Mullins' order of the 16th of October 2003 be varied by deleting all the words following the word “order” and substituting the words “until further order” in lieu thereof. With regard to costs I will reserve costs as I indicated earlier.


Editorial Notes

  • Published Case Name:

    John Douglas Turner v Michael Noel Osborne

  • Shortened Case Name:

    Turner v Osborne

  • MNC:

    [2003] QSC 421

  • Court:


  • Judge(s):

    Mackenzie J

  • Date:

    13 Nov 2003

Litigation History

No Litigation History

Appeal Status

No Status