Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCA
  3. 2025
  4. National Trade & Finance Co v Drummond - [2025] QCA 118

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  •  Notable Unreported Decision
  • Appeal Determined (QCA)

National Trade & Finance Co v Drummond[2025] QCA 118

National Trade & Finance Co v Drummond[2025] QCA 118

SUPREME COURT OF QUEENSLAND

CITATION:

National Trade & Finance Co v Drummond; Davidson v Drummond [2025] QCA 118

PARTIES:

In Appeal No 12785 of 2024:

NATIONAL TRADE & FINANCE CO PTY LTD ACN 007 936 638 AS TRUSTEE FOR THE MONAGHAN PROPERTY TRUST

(appellant)

v

DAMON LESLIE DRUMMOND

(respondent)

In Appeal No 12796 of 2024:

LEONA GAYE DAVIDSON AS EXECUTOR OF THE ESTATE OF LESLIE HAROLD DRUMMOND (DECEASED)

(appellant)

v

DAMON LESLIE DRUMMOND

(respondent)

FILE NO/S:

Appeal No 12785 of 2024

Appeal No 12796 of 2024

SC No 5166 of 2024

SC No 3249 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2024] QSC 187 (Treston J)

DELIVERED ON:

27 June 2025

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2025

JUDGES:

Bond and Flanagan JJA and Williams J

ORDER:

The appeals be dismissed, with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the respondent commenced a proceeding against the executor of his father’s estate seeking a declaration that the estate held an interest in a property on trust for the respondent – where the respondent also commenced a proceeding against the trustee of his brother-in-law’s family trust that the trust held the proceeds of sale of a property on trust for him – where the respondent’s alleged equitable entitlements derived from separate oral agreements with his now deceased parents and with his now deceased brother-in-law to transfer real property on the basis that ownership would be transferred back to the respondent on his request – where the appellants submitted that the proceedings were oppressive and unfair because of the lapse of time, the lack of documentary records, and because, apart from the respondent himself, all witnesses of the oral agreement on which he relied were all now deceased – whether the primary judge was correct not to have permanently stayed the proceedings – whether considerations personal to the parties, including considerations of potential defences, are relevant to an inquiry as to whether a fair trial can be held, or whether there would be such unfairness or oppression as to constitute an abuse of process – whether the primary judge erred in finding that there may be documents that may assist in explaining the circumstances

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – where the primary judge’s decision on an application for a permanent stay of a civil proceeding was an interlocutory decision – where the standard of appellate review is the “correctness” standard – where the appeal against an interlocutory decision is an appeal in the strict sense – whether the appellants could persuade the appellate court that the judgment made was wrong on the material before the primary judge

Director of Proceedings on behalf of the Health Ombudsman v XD [2024] QCA 215, applied

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32, applied

Merker v Merker [2021] QSC 285, considered

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, considered

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, considered

The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292, considered

Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42, cited

COUNSEL:

S W Trewavas for the appellants

N J Shaw for the respondent

SOLICITORS:

OMB Solicitors for the appellant in Appeal No 12785 of 2024

Douglas Hoskins Legal for the appellant in Appeal No 12796 of 2024

Rose Litigation Lawyers for the respondent

  1. [1]
    BOND JA:  In March 2024, the present respondent commenced two separate proceedings in the trial division.
  2. [2]
    The first proceeding, commenced on 14 March 2024, was against his sister as the executor of the estate of his late father.  The respondent sought a declaration that certain real property which was an asset of the estate was held on trust for him to the extent of his equitable interest in the real property.  The proceeding also sought relevant ancillary relief.
  3. [3]
    The second proceeding, commenced on 24 April 2024, was against a corporate trustee of a family trust associated with his sister and her late husband and of which his sister was now the sole director.  It sought a declaration that the company held on trust for the respondent the proceeds of the sale of certain real property which had been held by the trustee.  The proceeding also sought relevant ancillary relief.
  4. [4]
    The respondent’s case in the first proceeding was that his claims arose out of a particular oral agreement made in March 2000 between the respondent and his
    now-deceased parents.  His case in the second proceeding was that his claims arose out of a similar but separate oral agreement made at about the same time as the first, but this time between the respondent and his now-deceased brother-in-law on behalf of the corporate trustee of the brother-in-law’s family trust.
  5. [5]
    Because of the common factual and legal substratum as between the two proceedings, on 25 June 2024 orders were made that they be heard together; evidence in one proceeding be evidence in the other; and the parties have the same representation in each.
  6. [6]
    On 15 August 2024, the primary judge heard argument in relation to applications advanced by the defendant in each proceeding that the proceeding be permanently stayed, essentially on the basis that there could be no fair trial because, apart from the respondent himself, all the people who were alleged to have been party to the oral agreements on which he relied were all now deceased.
  7. [7]
    On 28 August 2024, the primary judge dismissed each application.[1]  By the present appeals the appellants seek to overturn that outcome.
  8. [8]
    For reasons which follow the appeals should be dismissed, with costs.

The background facts[2]

  1. [9]
    Leslie and Raelene Drummond were the parents of the respondent (Damon, born 1959) and his sisters Leona and Petrea.
  2. [10]
    On 20 September 1994, Damon became the registered owner, as tenants-in-common with his mother Raelene, of an apartment at 27 Duet Drive, Mermaid Waters (27 Duet).  On 21 January 1997, Damon became the registered owner of an apartment at 29 Duet Drive, Mermaid Waters (29 Duet).
  3. [11]
    In 1997, Damon was living in Hong Kong and employed at a university there.  He became a party to a defamation proceeding in Hong Kong commenced by another employee of the university.  Because of that proceeding, Damon alleges that he formed the view there was a risk of an adverse monetary judgment against him at some time in the future.
  4. [12]
    Damon alleges that, in or about March 2000, he and his parents made an oral agreement in respect of his interest in 27 Duet in a telephone conversation which proceeded along the following lines:
    1. Damon told his parents about the Hong Kong proceeding and the view he had formed of the risk of an adverse monetary judgment at some time in the future;
    2. Damon said he wanted to ensure that he did not have property easily discoverable in his name in Australia and that he wished to provide financial support for his parents by allowing them to receive rental income from 27 Duet;
    3. Damon said he would like to put in place an arrangement whereby:
      1. (i)
        he would transfer his interest in 27 Duet to his father without requiring any payment from his father;
      1. (ii)
        the loan secured by a mortgage which was presently in Damon’s name would be transferred to his father;
      1. (iii)
        27 Duet would remain Damon’s property and his father would need to return it to Damon’s name when Damon requested him to do so;
      1. (iv)
        the cost and expense of the transfer, and the ongoing expenses in respect of the property including mortgage payments, would be paid for by the rental income; and
      1. (v)
        any remaining rental income would be kept by Leslie and Raelene for so long as the property was held in their names.
    4. Both his parents said that they were agreeable to this arrangement and that Leslie would make all necessary arrangements for the transfer of the property since Damon was residing overseas.
  5. [13]
    Damon alleges that between March and July 2000 Leslie and Raelene instructed solicitors at Greg Comben & Associates to make the necessary arrangements to carry out the oral agreement.  Further, it is alleged that they engaged an accountant, Ron Goudie, to assist with carrying out the agreement.  They subsequently withdrew the instructions from Greg Comben & Associates and instructed Robinson & Robinson Solicitors to carry out the oral agreement.  Those solicitors caused a Form 1 transfer of land to be prepared transferring 27 Duet from Damon and Raelene as
    tenants-in-common to Leslie and Raelene as joint tenants.  The Form 1 was signed on 7 March 2000 and a loan was taken out with the Westpac Bank secured by a mortgage over 27 Duet.  Leslie and Raelene then caused, through Robinson & Robinson, funds obtained from the Westpac loan to pay out the balance of Damon’s loan and the mortgage securing Damon’s loan to be cancelled and replaced with a mortgage securing Leslie and Raelene’s loan.
  6. [14]
    Later in 2000, Leslie and Raelene became the registered owners of 27 Duet as joint tenants.  Thereafter they received all the payments for rent and paid the expenses from that income.  They retained surplus funds received from the rent and Damon did not receive any of the rental income.  Nevertheless, Damon claims to have regularly communicated with real estate agents managing 27 Duet and that he regularly carried out inspections of the property as well as maintenance, renovation and painting.
  7. [15]
    Around the same time as having the March 2000 discussions with his parents regarding 27 Duet, Damon alleges he had a similar conversation with Leona’s husband, John, regarding 29 Duet.  At that time John was the director and authorised agent of the corporate trustee of his family trust.  The corporate trustee is the defendant (and now the appellant) in the second proceeding.  Damon alleges that he told John that, for the reasons associated with the Hong Kong defamation proceeding, he wanted to transfer his interest in 29 Duet to the corporate trustee on effectively the same terms, such that 29 Duet would remain Damon’s property and the corporate trustee would return it to him when requested to do so.  In the meantime, the income from the property would be used to fund any expenses, including mortgage payments, and the corporate trustee could keep the rental income for so long as the property was held in its name.
  8. [16]
    Again, the transfer was perfected with the assistance of the accountant, Mr Goudie, and the solicitors, Robinson & Robinson.  The corporate trustee became the registered owner of 29 Duet later in 2000.
  9. [17]
    Leona and Petrea and Mr Goudie, the accountant, each gave evidence before the primary judge.
  10. [18]
    As to 29 Duet, Leona described that she knew that Damon “was in a case” in Hong Kong and that he “wanted to release” the properties but she was “not 100 percent sure why”.  She recalled John telling her that Damon was “in a situation” and John was going to purchase a property from him.  As to 27 Duet, Leona also gave evidence that her parents had never told her about an oral agreement with Damon to the effect that he alleges, or at all.
  11. [19]
    Mr Goudie said he gave advice to John in relation to the purchase of 29 Duet.  John told him that Damon needed to sell his property and queried how it was that John should buy the property.  Mr Goudie gave John advice to buy it in his family trust.  While Mr Goudie denied that he had had any conversation with John in which John had described his conversations with Damon about the transaction, he did give evidence that John had “mentioned that Damon needed to transfer two properties out of his name to avoid some sort of litigation that he was in in Hong Kong.”
  12. [20]
    Petrea gave evidence that she knew that Damon was in court in Hong Kong, and he needed to sell the properties as soon as possible, and the quickest way to do that was to sell it to family.  She primarily obtained that information from her father, Leslie, and brother-in-law John.
  13. [21]
    John died in 2008.  After John’s death Leona assumed his role as the director and authorised agent of the corporate trustee.
  14. [22]
    Damon alleged that in 2010 he had a conversation with Leona and his parents in Adelaide, whereby he asked for the return of Leslie’s interest in 27 Duet.  Damon further alleges that in 2010, around the same time he had a conversation with his parents about the return to him of 27 Duet, he raised with Leona words to the effect of seeking the return of 29 Duet as well.
  15. [23]
    Leona alleges that Damon asked for the return of 29 Duet in a conversation which took place in her parents’ driveway in 2010.  He told her that he had an agreement with John to take 29 Duet back.  Nothing further transpired after this conversation in 2010.
  16. [24]
    Raelene died on 9 December 2015, and Leslie died on 24 July 2023.  Leona became the executor of Leslie’s estate.  It is in that capacity that she is the defendant (and now the appellant) in the first proceeding.
  17. [25]
    In 2023, some weeks after Leslie died, Damon renewed his request to Leona for the properties to be returned to him.  She enquired of Mr Goudie his knowledge of the arrangement, and he described the transfers to the corporate trustee and to Leslie as “sales”.
  18. [26]
    Damon disputed that they were sales “at market value”, describing them as “temporary”, and for the purpose of “protecting the asset” and “trying to help (Damon)”.
  19. [27]
    Apart from Damon himself, the three relevant witnesses to the alleged oral agreements in March 2000 are all now deceased: John (in 2008); Raelene (in 2015); and Leslie (in 2023).  Neither the first proceeding (i.e. the proceeding against Leona as executor of Leslie’s estate in respect of 27 Duet) nor the second proceeding (i.e. the proceeding against the corporate trustee in respect of 29 Duet) were commenced while the relevant witnesses were alive.

The application before the primary judge

  1. [28]
    The primary judge concluded that the relevant principles governing the application for permanent stay were those articulated in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore[3] (GLJ) and in Moubarak by his tutor Coorey v Holt[4] (Moubarak).  Her Honour summarised those principles in these terms (footnotes omitted):

“The grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following a trial would be irreconcilable with the administration of justice through the operation of the adversarial system.  It is only an exceptional case which justifies the exercise of the power of the court to permanently stay a proceeding.  The decision is one of last resort on the basis that no other option is available.

The principles have been described by Bell P, as his Honour then was, in [Moubarak] as follows:

‘(1) the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant…

  1. a permanent stay should only be ordered in exceptional circumstances…
  1. a permanent stay should be granted when the interests of the administration of justice so demand…
  1. the categories of cases in which a permanent stay may be ordered are not closed…
  1. one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive…
  1. the continuation of proceedings may be oppressive if that is their objective effect…
  1. proceedings may be oppressive where their effect is “seriously and unfairly burdensome, prejudicial or damaging”…
  1. proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party…; and
  1. proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people’.”
  1. [29]
    I interpolate that no criticism was advanced on appeal of her Honour’s summary of relevant principle.
  2. [30]
    Before her Honour the appellants had identified four reasons why a permanent stay should be granted:
    1. first, the proceedings or their continuance would be oppressive because they were seriously and unfairly burdensome due to the significant lapse of time, the lack of documentary records, and the inability to obtain any instructions from any relevant witnesses because they were all deceased;
    2. second, the continuation of the proceedings would be manifestly unfair to a party because the entire case rests on oral conversations that occurred more than 24 years ago, the lack of documentary records and the death of relevant witnesses;
    3. third, in light of the first two matters, the continuation of the proceedings would bring the administration of justice into disrepute amongst right thinking people; and
    4. fourth, they had discharged their burden of demonstrating, on the balance of probabilities, that it would not be possible to obtain a fair trial.
  3. [31]
    The primary judge rejected those contentions.  After analysing the relevant evidence her Honour concluded:

“In the circumstances, whilst the delay is substantial, and largely unexplained, I cannot be satisfied that the issues of unfairness are such as to meet the threshold of exceptional circumstances as described in Moubarak because:

  1. some witnesses remain available and they recall some of the relevant circumstances;
  1. whilst some witnesses are deceased, the loss of their evidence makes the plaintiff’s case more difficult to succeed, not less so, such that the unfairness is, potentially, militated;
  1. contemporaneous documents exist and it se[e]ms probable more will be located;
  1. given the short time the proceeding has been on foot, it would be premature to decide the permanent stay now; and
  1. the unfairness and prejudice issues might more properly be addressed through equitable defences.”

The standard of appellate review

  1. [32]
    The standard of appellate review of a primary judge’s decision on an application for a permanent stay of a civil proceeding is the “correctness” standard.[5]  As Dalton JA observed in Director of Proceedings on behalf of the Health Ombudsman v XD:

“That means that on appeal against such a decision, the appeal court must look to see whether or not the court below arrived at the correct decision, rather than simply looking to see whether or not the court below took into account all proper considerations and arrived at a decision which did not offend the rule in House v The King.”[6]

  1. [33]
    As the primary judge’s decision should be regarded as interlocutory rather than final,[7] the appeal is to be regarded as an appeal in the strict sense, rather than an appeal by way of rehearing.[8]  In the present case, that distinction does not matter, as on an appeal in the strict sense it is still necessary for the appellants to demonstrate error, namely to persuade the appellate court that the judgment made was wrong on the material before the primary judge.[9]
  2. [34]
    The material before the primary judge encompassed –
    1. on behalf of the appellants:
      1. (i)
        affidavit and testimonial evidence from Leona; Petrea; Mr Goudie;
      1. (ii)
        affidavit evidence from Mr Layani, the appellants’ solicitor; and
    2. on behalf of the respondent:
      1. (i)
        affidavit and testimonial evidence from Damon;
      1. (ii)
        affidavit evidence from Mr Fraser, the respondent’s solicitor; and
    3. documentary evidence in the form of an agreed court book.
  3. [35]
    It follows that at least to some extent her Honour enjoyed some advantage over this Court, which is limited to conducting its review on the record.  The significance of this advantage was explained by Gageler J (as the Chief Justice then was) in Minister for Immigration and Border Protection v SZVFW[10] (footnotes omitted):

“Performing its obligation to conduct a ‘real review’, the appellate court ‘must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record’. Limitations of that nature can include: ‘those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole’. The appellate court needs to be conscious that ‘[n]o judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another’. The more prominently limitations of that nature feature in a particular appeal, the more difficult it will be for the appellate court to be satisfied that the primary judge was in error.”

  1. [36]
    Against that background it is appropriate to turn to consider each of the grounds of appeal.

The grounds of appeal

  1. [37]
    The appellants’ amended notices of appeal raised the hopelessly general ground of appeal that “the learned trial judge erred in the decision to not order a permanent stay of the plaintiff’s proceedings”, but also set out two specific grounds of appeal.  In oral argument before this Court the appellants accepted that the two specific grounds were the bases on which they sought to justify the conclusion raised by the general ground.  Accordingly, the disposition of the appeals turns on a consideration of the two specific grounds of appeal.  I deal with them in turn.

The first ground of appeal: alleged error in considering equitable grounds of defence.

  1. [38]
    The first specific ground of appeal was that the primary judge:

“erred in finding in paragraph [52] of the Reasons that the availability of equitable defences is relevant to the consideration of whether a proceeding should be stayed because the proper inquiry is whether there is an incapacity for a fair trial to be held, or whether a trial would involve such unfairness or oppression as to constitute an abuse of process.  The proper inquiry necessarily does not involve considerations of potential defences which are considerations personal to the parties.”

  1. [39]
    During the hearing before the primary judge, her Honour had raised with the parties whether there was any reason why she would not simply leave open the defence of laches (and any other equitable defences, including clean hands) where the issues as to delay, loss of evidence, prejudice etc. could be properly explored.
  2. [40]
    Her Honour’s reference to “clean hands” was a shorthand reference to the equitable maxim “those who come into equity must come with clean hands”.  Her Honour explained the potential application of that maxim by noting that at least one of the purposes of the alleged transfers of 27 Duet and 29 Duet was the frustration of creditors in anticipation of a judgment debt.  As to the equitable defence of laches, her Honour noted the explanation of general principle in Lindsay Petroleum Company v Hurd, Farwell & Kemp[11] and also that in Orr v Ford,[12] Deane J had identified as a consideration which could support the operation of the defence “whether the delay has affected the defendant’s ability to resist the claim”.
  3. [41]
    Her Honour also noted that in Merker v Merker[13] Dalton J (as her Honour then was) had considered and rejected an application for a permanent stay by reference to the possible application of the defence, and that her Honour’s approach was referred to with approval on appeal to this Court.[14]  The paragraph of the primary judge’s reasons impugned by this ground of appeal was then in these terms:

“It seems to me, with the greatest of respect, that [Dalton J’s] approach was plainly the correct one. Equitable defences are arguable in relation to this claim, and perhaps more than one. Every argument which is raised by the defendants in support of the permanent stay going to issues of prejudice and unfairness are ones which can be articulated as a defence to the proceedings. However, each of them ought to be determined after the court has had the opportunity to consider all of the available evidence.”[15]

  1. [42]
    The appellants’ argument before this Court was that the approach taken in Merker v Merker was inconsistent with the subsequent decision of the High Court in GLJ and ought not be followed.  Particular reliance was placed on this passage from the reasons of Kiefel CJ, Gageler and Jagot JJ in GLJ (emphasis added):

“Moreover, although it has been said that the question whether a permanent stay should be granted on abuse of process grounds ‘falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations’, the ultimate question is not ‘whether the unfairness to a moving party by reason of a stay outweighs the unfairness to a defending party by reason of the continuation of the proceedings’. It is difficult to conceive of a case in which a mere balancing of competing interests between the parties could justify a permanent stay of proceedings. The metaphor of a ‘balancing exercise’ is best avoided. It cannot be applied to the concept of either the incapacity for a fair trial to be held, or a trial involving such unfairness or oppression as to constitute an abuse of process. It also tends to distract attention from the real issue – the congruence or otherwise of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system – and impermissibly refocuses attention on considerations personal to the parties. Considerations personal to the parties are relevant only to the extent that they expose circumstances of the congruence or incongruence in the particular case of the holding of a trial and rendering of a verdict.”[16]

  1. [43]
    The appellants’ argument was that the existence of equitable defences were matters personal to the parties and were irrelevant to the fundamental question, which was the “real issue” identified in the emphasised part of the quote.
  2. [44]
    The argument is misconceived.
  3. [45]
    What is in issue in an application for a permanent stay of the present kind is whether the applicant has discharged the heavy onus of persuading the Court to form the evaluative judgment that the case falls within the exceptional category of case which justifies such an extreme remedy.  In this regard, as Kiefel CJ, Gageler and Jagot JJ observed in GLJ (emphasis added, footnotes omitted):

“Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings depends on a mere risk that a trial might be unfair. The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided. …”[17]

  1. [46]
    Their Honours had earlier in their judgment explained (emphasis added, footnotes omitted):
    1. At [18]:

“… both concepts (necessary unfairness or such unfairness or oppression as to constitute an abuse of process) ultimately concern the congruence of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system in the circumstances as they exist at the time of the application for the permanent stay. The position of the party seeking the permanent stay is relevant insofar as it exposes the congruence or incongruence of a trial and verdict with the normative structure of the Australian legal system. A trial which will be necessarily unfair or which acts as an instrument of unfairness and oppression to a defendant cannot yield a legitimate verdict within that system and thereby the holding of the trial and rendering of a verdict will bring the administration of justice into disrepute. The doctrine of abuse of process is one element in a court’s armoury to protect the administration of justice, but it is to be understood as a measure of last resort to be exercised only in exceptional circumstances.”

  1. At [20]:

“… the adversarial system generally requires that a plaintiff be able to identify the claim made and the material facts on which the claim is based, and that a defendant be able to consider and respond to the claim in some meaningful way. If these requirements cannot be satisfied in some way or another then the adversarial system of justice, a principal means by which the rule of law in Australia is maintained, is unable to function.”

  1. [47]
    These passages make perfectly clear that considerations personal to the parties are relevant, to the extent that they expose the congruence or incongruence in the particular case of the holding of a trial and the rendering of a verdict.  After all, the essence of the appellants’ argument in support of the stay is that circumstances personal to them (namely the subjective prejudice which they suffer in having to meet the respondent’s case in the circumstances on which they rely) expose the incongruence of having the trial and justify the conclusion that they cannot consider and respond to the claim in any meaningful way.
  2. [48]
    GLJ makes it clear that the judicial evaluation of the strength of that argument must take place through the lens of the adversarial system and “the methods the common law had developed to ensure fairness despite the unavailability of witnesses and the loss of evidence”,[18] including:
    1. the fact that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved;
    2. the legal maxim that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”;
    3. the recognition in the case law that the degree of fallibility of human memory ordinarily increases with the passage of time;
    4. the fact that when a court is deciding issues of fact on the civil standard of proof, the court is concerned not just with the question “what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”;
    5. the related proposition that a trier of fact is not bound to accept uncontradicted evidence, but may conclude that it is not appropriate to do so for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of “actual persuasion” which is required before a fact may be found;
    6. and, similarly, the recognition of common law courts that –
      1. (i)
        in the case of a claim in debt against a deceased estate, a court “scrutinizes the evidence very carefully to see whether it is true or untrue”;
      1. (ii)
        “it is a mistake to think that because an event is unseen its cause cannot be reasonably inferred”; and
      1. (iii)
        “[i]t is elementary that in a claim based on communications with a deceased person, the court treats uncorroborated evidence of such communications with considerable caution, and is entitled to regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available”.
  3. [49]
    But just as the relevant judicial evaluation of the ability of a defendant to respond to a claim must take those features into account, it must also take into account the fact that the courts of equity also developed principles to respond to the practical injustice which might occur in the event that delay caused by a claimant party impeded a defendant’s ability to resist the claim.  That consideration would necessarily be relevant to determining whether the defendant could consider and respond to the claim in a meaningful way.  The ability to raise an equitable defence which might negate an equitable claim must be regarded as a way to consider and respond meaningfully to the claim.  Accordingly, her Honour’s examination and consideration of such features was appropriate.
  4. [50]
    For completeness I record that the appellants sought to rely on Willmot v Queensland[19] to suggest that where the High Court in GLJ referred to the ability of a defendant “to consider and respond to the claim in some meaningful way” as one of the requirements for a fair trial in this context the High Court really meant the ability of the defendant to meaningfully contradict the allegations raised by a claimant.  Accordingly, so the appellants contend, if allegations cannot be meaningfully contradicted there should be a permanent stay.  Their contention was that contradiction was narrower than responding or defending.  I reject that submission.  There is nothing in Willmot which reveals an intention to evaluate the requirements for a fair trial in such a narrow way.
  5. [51]
    The first ground of appeal fails.

The second ground of appeal: alleged factual error concerning documentary evidence.

  1. [52]
    The second specific ground of appeal was that the primary judge:

“erred in finding in paragraphs [36] and [44] of the Reasons that there may be documents that may assist in explaining the circumstances, because:

a. the critical allegation was an alleged oral conversation, not the parties’ circumstances after the alleged oral conversation; and

b. the finding assumes a negative viz. there may be documents that exist but there is no evidence that the documents exist.

c. the finding is contrary to the evidence.”

  1. [53]
    The first argument advanced in relation to this ground of appeal suggests the general irrelevance of the primary judge’s formation of the view that there may be documents that may assist in explaining the circumstances, on the basis that “the critical allegation was an alleged oral conversation, not the parties’ circumstances after the alleged oral conversation.”
  2. [54]
    This argument must be rejected.  It is true that the critical allegation is whether an oral agreement was formed as alleged.  But evidence of conduct occurring after the date an agreement was allegedly formed is admissible on the question of whether an agreement has been formed as alleged.[20]  Accordingly, the way in which the relevant witnesses conducted themselves after the alleged agreement (whether in word or in deed) would undoubtedly shed light on whether an agreement had been formed as alleged.
  3. [55]
    The first point to be made in relation to the second argument advanced in relation to this ground of appeal is that, as the primary judge explicitly recognised, the application for stay was brought at an early stage in the litigation.  Although in each proceeding a claim and a statement of claim had been delivered by the respondent:
    1. there had not yet been pleadings delivered by the appellants;
    2. pleadings had not closed;
    3. although some searches for documents had been performed and some relevant documents obtained, including from non-parties, neither party disclosure nor non-party disclosure were complete.
  4. [56]
    The second point to be made is that the suggestion that the primary judge’s analysis assumed a negative is not a fair characterisation of her Honour’s analysis.  In her reasons at [36] her Honour stated that there were “several categories of documents that may assist in explaining the circumstances” and, after examining those categories, her conclusion at [44] was:

“This is not intended to be an exhaustive list of the documents which might be available to be produced, but the list is at least suggestive of the possibility that with further enquiry, more may be located. And whilst I am cognisant of the fact that the subject matter is some 24 years old, the proceedings themselves are only 6 months old. It would be premature to conclude at this stage, that no further documents will be located.”

  1. [57]
    There is nothing wrong with this conclusion.  I observe:
    1. The first category of documents considered were conveyancing documents: transfer forms; mortgage documents; solicitors documents in relation thereto; payment records.  Some documents had been found, but the evidence from Leona and from Mr Fraser supported the conclusion that there were other formal avenues still to be pursued, including by formal non-party disclosure with financial institutions; with solicitors’ firms and with real estate agents.  The primary judge correctly thought it was impossible to determine whether any further documents existed, given the early stage of the proceeding.
    2. The second category of documents concerned trust records relating to the corporate trustee’s acquisition of 29 Duet in 2000 and its sale in 2023.  During his cross-examination, Mr Goudie said that records of the corporate trustee existed which would shed light on the consideration paid by the corporate trustee to acquire the property; the records had not been destroyed, and, if asked, he could produce them.  The primary judge noted that investigations were continuing in relation to 27 Duet.
    3. The third category of documents concerned an email from his mother recently recovered by Damon.  This was exhibited to one of his affidavits and the subject of cross-examination.  Damon used the email to refresh his memory of some relevant communications.  Her Honour recognised the possibility that further evidence of this sort might be obtained once documents searches were complete.
    4. The fourth category of documents was that of Petrea.  During her cross-examination it became clear from one of her answers that she could be more precise in her answer if she went through her emails.  The primary judge correctly regarded that as at least indicative of the fact that Petrea had access to relevant documents not yet produced.
    5. The fifth category of documents concerned Damon’s mother’s handwritten diaries.  Mr Fraser’s evidence was that Damon had located her original diaries for the years 2000, 2008, 2009, 2010, 2011, 2012, 2013 and 2014, but that they had not yet been reviewed or the subject of disclosure.
    6. In my view her Honour’s conclusion at reasons [44] reflects the evaluative judgment of an experienced lawyer having had proper regard to the written and oral evidence concerning the nature of the searches which had been done at what was undoubtedly a relatively early stage in the development of the litigation.  In the discussion of the categories of documents which preceded her conclusion, her Honour explicitly distinguished between speculative conclusions and the identification of evidence which had made it clear to her that all reasonable enquiries had not yet been made.  A fair view of her Honour’s reasons is that the principal point being made was that it could not yet be concluded that the stay application was being evaluated against what could be confidently regarded as an exhaustive identification of the relevant documents discoverable by having made reasonable enquires.
  2. [58]
    The appellants have not demonstrated that her Honour’s conclusion as to the potential availability of relevant documents and the relevance of that possibility is in error.  To the contrary, it seems to me to be plainly right. 
  3. [59]
    In their reply submissions in this Court the appellants sought to develop a suggestion that there was some error in the primary judge having formed the view, based on the information before the judge, that it would be premature to decide the application at the time it was brought.  The appellants emphasised that the Court’s duty is to decide the application on the material before it.  In this regard, they relied on observations made in The Council of Trinity Grammar School v Anderson,[21] per Bathurst CJ (with whom Payne JA and Simpson AJA agreed) (emphasis in the appellants’ submissions):[22]

“Although the primary judgment and the submissions on behalf of the respondent focus to a considerable extent on the deficiencies in Trinity’s investigations and the possibility of further material emerging, it is important first to consider whether, on the material presently available, Trinity is in a position to meaningfully contest the claim. It is necessary to do so with reference to the specific allegations of assault pleaded, the causes of action relied upon and the particulars of the breach of duty given in respect of each assault.”

  1. [60]
    This argument by the appellants is also misconceived.  Later in the same judgment, the Court said this (emphasis added):[23]

“In these circumstances, Trinity has made good the proposition that the material available to it is not such as to enable it to deal meaningfully with the claims against it. However, whether that leads to the conclusion that a stay should be granted depends on a consideration of two further questions: first, whether the inquiries made were adequate and second, whether it could be said that Trinity, by not investigating the claim earlier, was responsible for the position in which it finds itself.”

  1. [61]
    It is not necessary to consider that part of the appeal ground which suggested that the primary judge’s finding was against the weight of the evidence because that contention was abandoned during oral argument before this Court.
  2. [62]
    The second ground of appeal also fails.

Conclusion

  1. [63]
    Both grounds of appeal having failed, the appeals must be dismissed, with costs.
  2. [64]
    FLANAGAN JA:  I agree with Bond JA.
  3. [65]
    WILLIAMS J:  I agree with the reasons of Bond JA and that the appeals should be dismissed with costs.

Footnotes

[1]Drummond v Davidson and Drummond v National Trade & Finance Co Pty Ltd as trustee for the Monaghan Property Trust [2024] QSC 187.

[2]  No criticism was made on appeal of the primary judge’s findings as to the relevant background facts.  Accordingly, the recitation of those facts under this heading essentially reproduces the findings made by her Honour, with minor alterations.

[3]GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857.

[4]Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218.

[5]GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 and Director of Proceedings on behalf of the Health Ombudsman v XD [2024] QCA 215.

[6]Director of Proceedings on behalf of the Health Ombudsman v XD [2024] QCA 215 at [12].

[7]  The nature of the distinction was the subject of recent discussion by Dalton JA (with whom Bond JA agreed) in DU v Jackson (DCJ) [2024] QCA 122 at [36]-[42].  Notably in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore the High Court recognised that the appeal was pursuant to a grant of leave by operation of s 101(2)(e) of the Supreme Court Act 1970 (NSW) (“An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from … (e) an interlocutory judgment or order in proceedings in the Court”).

[8]  Rule 765(2) of the Uniform Civil Procedure Rules 1999 (Qld).

[9]Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, at 128 [2], quoting Fox v Percy (2003) 214 CLR 118 at 124 [20].

[10]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 556-557 [33].

[11]Lindsay Petroleum Company v Hurd (1874) LR 5 PC 221 at 239-240.

[12]Orr v Ford (1989) 167 CLR 316 at 341-342.

[13]Merker v Merker [2021] QSC 285.

[14]Merker v Merker [2023] QCA 33 at [3].

[15]Drummond v Davidson and Drummond v National Trade & Finance Co Pty Ltd as trustee for the Monaghan Property Trust [2024] QSC 187 at [52].

[16]GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [22].

[17]GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [21].

[18]GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore at [54] and see the extensive discussion of relevant legal principles at [54]-[61].

[19]Willmot v Queensland (2024) 98 ALJR 1407at [61].

[20]Feldman v GNM Australia Ltd [2017] NSWCA 107 per Beazley P (with whom McColl and Macfarlan JJA agreed) at [90]-[91]; and King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2017] QCA 251 per Bond J (with whom Fraser JA generally agreed, and Gotterson JA agreed) at [15].

[21]The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762.

[22]The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762 at [447].

[23]The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762 at [477].

Close

Editorial Notes

  • Published Case Name:

    National Trade & Finance Co v Drummond; Davidson v Drummond

  • Shortened Case Name:

    National Trade & Finance Co v Drummond

  • MNC:

    [2025] QCA 118

  • Court:

    QCA

  • Judge(s):

    Bond JA, Flanagan JA, Williams J

  • Date:

    27 Jun 2025

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2024] QSC 18728 Aug 2024Proceedings for declarations in respect of interest in certain properties; application for permanent stay in each proceeding dismissed: Treston J.
Primary Judgment[2024] QSC 20706 Sep 2024Costs judgment: Treston J.
Notice of Appeal FiledFile Number: CA 12785/2425 Sep 2024Notice of appeal filed.
Notice of Appeal FiledFile Number: CA 12796/2425 Sep 2024Notice of appeal filed.
Appeal Determined (QCA)[2025] QCA 11827 Jun 2025Appeals dismissed: Bond JA (Flanagan JA and Williams J agreeing).

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Coorey v Holt [2019] NSWCA 102
1 citation
Jump To
Cite 1 - [2019] NSWCA 102
Council of Trinity Grammar School v Anderson [2019] NSWCA 292
1 citation
Jump To
Cite 1 - [2019] NSWCA 292
Director of Proceedings v XD [2024] QCA 215
3 citations
Jump To
Cite 1 - [2024] QCA 215
Cite 2 - [2024] QCA 215
Cite 3 - [2024] QCA 215
Drummond v Davidson [2024] QSC 187
3 citations
Jump To
Cite 1 - [2024] QSC 187
Cite 2 - [2024] QSC 187
Cite 3 - [2024] QSC 187
DU v Judge Jackson [2024] QCA 122
1 citation
Jump To
Cite 1 - [2024] QCA 122
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124
1 citation
Jump To
Cite 1 - (2008) 234 CLR 124
Feldman v GNM Australia Ltd [2017] NSWCA 107
1 citation
Jump To
Cite 1 - [2017] NSWCA 107
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857
5 citations
Jump To
Cite 1 - (2023) 97 ALJR 857
Cite 2 - (2023) 97 ALJR 857
Cite 3 - (2023) 97 ALJR 857
Cite 4 - (2023) 97 ALJR 857
Cite 5 - (2023) 97 ALJR 857
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
1 citation
Jump To
Cite 1 - [2023] HCA 32
King Tide Company Pty Ltd v Arawak Holdings Pty Ltd [2017] QCA 251
1 citation
Jump To
Cite 1 - [2017] QCA 251
Lindsay Petroleum Company v Hurd (1874) L.R. 5
1 citation
Jump To
Cite 1 - (1874) L.R. 5
Merker v Merker [2021] QSC 285
2 citations
Jump To
Cite 1 - [2021] QSC 285
Cite 2 - [2021] QSC 285
Merker v Merker [2023] QCA 33
1 citation
Jump To
Cite 1 - [2023] QCA 33
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
2 citations
Jump To
Cite 1 - (2018) 264 CLR 541
Cite 2 - (2018) 264 CLR 541
Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30
1 citation
Jump To
Cite 1 - [2018] HCA 30
Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218
2 citations
Jump To
Cite 1 - (2019) 100 NSWLR 218
Cite 2 - (2019) 100 NSWLR 218
Orr v Ford (1989) 167 CLR 316
1 citation
Jump To
Cite 1 - (1989) 167 CLR 316
Trinity Grammar School v Anderson (2019) 101 NSWLR 762
4 citations
Jump To
Cite 1 - (2019) 101 NSWLR 762
Cite 2 - (2019) 101 NSWLR 762
Cite 3 - (2019) 101 NSWLR 762
Cite 4 - (2019) 101 NSWLR 762
Willmot v Queensland [2024] HCA 42
1 citation
Jump To
Cite 1 - [2024] HCA 42

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.