Merker v Merker
[2023] QCA 33
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- Appeal Determined (QCA)
- Merker v Merker[2023] QCA 33
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Merker v Merker[2023] QCA 33
Merker v Merker[2023] QCA 33
SUPREME COURT OF QUEENSLAND
CITATION: | Merker & Ors v Merker & Anor [2023] QCA 33 |
PARTIES: | TERRY DESMOND MERKER (first appellant) CAROLYN VERONA HASEMANN (second appellant) VALERIE DAWN MERKER (third appellant) GREGORY WAYNE MERKER (fourth appellant) v MARILYN PATRICIA MERKER (first respondent) THE ESTATE OF ARNOLD RONALD MERKER (DECEASED) (second respondent) |
FILE NO/S: | Appeal No 14574 of 2021 SC No 13095 of 2020 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal – Further Orders |
ORIGINATING COURT: | Supreme Court at Brisbane – [2021] QSC 285 (Dalton J) |
DELIVERED ON: | 10 March 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 May 2022 |
JUDGES: | McMurdo and Bond JJA and Kelly J |
ORDER: | The cross-appeal is dismissed with costs. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENTS: STAY OR DISMISSAL OF PROCEEDINGS – where, in the Trial Division, the respondents (then defendants) applied for the proceeding to be permanently stayed – where the primary judge refused to grant a permanent stay – whether there is a basis for disturbing the judge’s discretionary decision to refuse to stay the proceeding |
COUNSEL: | C Jennings KC, with S C Russell, for the appellants D R Cooper KC for the respondents |
SOLICITORS: | Russells for the appellants Creevey Russell for the respondents |
- [1]THE COURT: By its judgment delivered on 23 December 2022, this Court made orders disposing of the appeal. The respondents to the appeal still press for the determination of part of their cross-appeal, which is the subject of this judgment.
- [2]That which is pressed by the respondents is their challenge to the decision of the primary judge to refuse to grant a permanent stay of the proceeding. Both respondents submitted to the judge that there should be a permanent stay because they could not receive a fair trial, given that some of the relevant facts occurred in 1985 and that Verona, Ronald and Arnold are deceased. A further argument, advanced only on behalf of the estate of Ronald, was that the proceeding against the estate should be permanently stayed because, it was said, the estate was fully distributed and/or had no assets.
- [3]As to whether there could be a fair trial, the judge noted that it was apparent from what was said in Marilyn’s affidavit that, to some extent, she accepted the factual premises relied upon by the appellants as to what happened in about 1985.[1] Her Honour reasoned that because laches was available to the respondents as a defence to the claim, and because there was an available limitation period by analogy, she should not permanently stay the proceeding. Her Honour said that the trial judge would have the advantage of seeing all the available evidence, but that she did not think that she ought to deprive the appellants of a trial by staying the proceeding now.[2] The only arguable error in that reasoning was that, as should appear from this Court’s previous judgment, Marilyn’s affidavit evidence was somewhat stronger for the appellants’ case than her Honour recognised. And in any event, at a trial it will be open to Marilyn by her own evidence to dispute that she was a participant in the joint endeavour which is the basis of the appellants’ case, notwithstanding her affidavit. There is no basis for disturbing the judge’s discretionary decision to refuse to stay the proceeding against both respondents.
- [4]As to the application for a permanent stay against the estate, the primary judge said that whilst there might be a case for such a stay, the factual material before her did not assure her that the estate had been fully distributed or had no assets. Her Honour said that Arnold’s will had not been exhibited and that Marilyn barely dealt with the topic in her affidavit. In fact, Arnold’s will had been exhibited. But of itself, that would not have demonstrated that the estate has no assets. There is no basis for disturbing the judge’s discretionary decision in this respect.
- [5]Other parts of the cross-appeal, understandably, have been abandoned having regard to this Court’s reasons for judgment in allowing the appeal.
- [6]It will be ordered that the cross-appeal be dismissed with costs.