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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
SUPREME COURT OF QUEENSLAND
SC No 4392 of 2015
GOOMBOORIAN TRANSPORT PTY LTD ACN 011 054 658
J & M LOGHANDLING PTY LTD ACN 011 054 667
BELLING INVESTMENTS PTY LTD ACN 123 710 734
GOOMBOORIAN LOGGING PTY LTD ACN 076 970
LITTLE YABBA DROUGHTMASTER STUD PTY LTD ACN 086 875 845
EMMERDALE FARMING PTY LTD ACN 151 515 909
JILRAY PTY LTD ACN 058 181 463
J & M FARMING PTY LTD ACN 086 991 291
J & M FARMING PTY LTD and LITTLE YABBA DROUGHTMASTER STUD PTY LTD ABN 89 152 178 639
JOHN GERHARD BELLING
MARLENE ANNE BELLING
ESTATE OF NORMA RENEE HANSON, DECEASED
DOROTHY MAUREEN HANSON
NORMAN RICHARD HANSON
TUESDAY, 14 AUGUST 2018
BOND J: The following oral judgment is to be read in conjunction with my first decision, Goomboorian Transport Pty Ltd v Hanson  QSC 135, and my decision this morning, Goomboorian Transport Pty Ltd v Hanson  QSC 182.
As is recited in the second judgment, I had, based upon my reading of written submissions made on behalf of the second and third defendants, apprehended that they had no objection to doing everything necessary to cause the monies which had been held within First Colonial Superannuation Funds to be paid to the third and sixth plaintiffs. It was for those reasons that I made the observation at (d)(i) that the second and third defendants had advanced submissions, the effect of which was they acknowledged that the monies in the superannuation accounts had been preserved and could be transferred. I determined not to make such an order because it seemed that there was no dispute that the transfer would happen, and therefore no need for an order to be made. Similarly, in relation to the transfer of the motorcar discussed at , especially at (e).
It was made clear during the course of argument this morning that the second and third defendants’ position is more properly understood in this way: first, they do not oppose an order requiring them to do those things being made because they recognise that it is appropriate as an appropriate sequel to the order I have made in relation to the proceeds of the Asteron Life insurance policy, but, second, they did not intend to convey that they did not oppose actually transferring the money and the car at this time. The reasoning in relation to that is that they have, by evidence before me this morning, proved they have filed an appeal consequent upon my first judgment, and they foreshadowed that if I made orders requiring the monies to be paid out and the car to be delivered, they would seek a stay of such orders.
In those circumstances, there is no merit in refusing to make an order under the apprehension that there is no dispute. There is a dispute and I should make the orders. It would follow that, having made the orders, I would hear the application by the second and third defendants for a stay.
In my second judgment, I also recorded at  that the plaintiffs had advanced a submission that statutory trustees for sale of the family home should be appointed. I refused to make such an order at this time because it seemed to me that the plaintiffs should make a formal application, and the second and third defendants should be given an opportunity to demonstrate that the making of such an order was not appropriate. Amongst other things, the second and third defendants had submitted that there was an insufficiency of evidence before me to justify the appointment of statutory trustees, including reference to the proposition that it would be appropriate to give the defendants an opportunity to buy out the plaintiffs’ interests once it had been properly crystallised, thereby avoiding the cost, time and inconvenience of statutory trustees being appointed, rendering such an application otiose.
However, the landscape changed a little this morning when I received an affidavit by Mr Baldwin, who on information and belief, in support of the application for stay, deposed to information concerning the second and third defendants’ financial position. It is apparent from the information there contained that the defendants will never be in a financial position to buy out the plaintiffs’ interest in their property. If my first judgment – that the proceeds received from the Asteron Life insurance policy were held by the second and third defendants on trust for the third and sixth plaintiffs is right – then one of the remedies which those plaintiffs will be able to enforce is a remedy which requires the sale of the property and the division of the proceeds of sale in a way that meets the rights of the parties.
The question arises whether I should make an order providing for the appointment of statutory trustees for sale now or postpone it to some subsequent time. Now that I know what I do know from this morning’s affidavit about the defendants’ financial position, I see no merit in postponing the question of making that order. The question of that appointment, though, would also be the subject of a foreshadowed application for stay by the third and sixth plaintiffs. I will deal with that application once I have decided the orders that I should make.
One matter that I omitted to mention when dealing with the orders concerning some of the sequelae to the declaration of trust as to the Asteron Life insurance policy, is that it is clear enough that the proceeds in the superannuation accounts should go to the third and sixth plaintiffs. It is clear enough, by concession more than anything else, that $150,000 of moneys held in trust for the second and third defendants would also have to go. But the extent to which any other amount in that trust account should go is presently unclear. For that reason, I will not make orders concerning the balance in the solicitor’s trust account beyond the $150,000 figure that was dealt with in the written submissions filed by the parties.
The orders I will make are as follows.
- The Second and Third Defendants are forthwith to take all such steps as are necessary to:
- (a)realise the value of the chose in action consisting of the Third Defendant’s rights, title and interest in First Colonial superannuation account number 5129899 in the name of Norman Hanson by withdrawing so much of the money held in that account as may be withdrawn according to the terms and conditions of the account;
- (b)realise the value of the chose in action consisting of the Second Defendant’s rights, title and interest in First Colonial superannuation account number 5129925 in the name of Dorothy Hanson by withdrawing so much of the money held in that account as may be withdrawn according to the terms and conditions of the account;
- (c)realise the value of that part of the chose in action consisting of the Second and Third Defendants’ rights, title and interest in the amount of $150,000 (and any accretions on that amount) held on trust for them by Big Law Lawyers by instructing that firm to pay out that amount to them,
and pay all such amounts to the Third and Sixth Plaintiffs.
- Within 14 days of the date of this order, the Second and Third Defendants are to:
- (a)take all steps necessary (including paying such fees, costs and any expenses for mechanical work as may be necessary to render the Vehicle roadworthy) to transfer the Vehicle to the Third and Sixth Plaintiffs; and
- (b)deliver up possession of the Vehicle to the Third and Sixth Plaintiffs.
- Pursuant to section 38 of the Property Law Act 1974, Stuart Alexander Rees and Jon Walter Colin Broadley (“the Sale Trustees”) be appointed as trustees for the sale of the real property (“the Real Property”) identified at paragraph 5 of the orders published in Goomboorian Transport Pty Ltd v Hanson  QSC 182 (“the Orders”) with effect 7 days after the date of this order.
- The Real Property thereupon vest in the Sale Trustees subject to encumbrances affecting the entirety but free from encumbrances affecting any undivided shares to be held by them upon trust to sell the same and to stand possessed of the net proceeds of sale, after payment of costs and expenses, and of the net income until sale after payment of rates, taxes, costs of insurance, repairs properly payable out of income and other outgoings for the Third and Sixth Plaintiffs and the Second and Third Defendants in such shares as they may subsequently agree in writing or as may subsequently be determined by the Court.
- The costs of the parties incurred after pronouncement of the Orders are reserved.
And the Court directs that:
- The proceeding is listed for directions as to the taking of any further accounts and inquiries and for hearing with respect to whether any further relief is necessary to give effect to the plaintiffs’ rights as declared in the Orders at 10am on 3 September 2018.
So for the reasons I have articulated orally, those are the orders that I would make further to the orders contained in the reasons for judgment that I published this morning.
- Published Case Name:
Goomboorian Transport Pty Ltd & Ors v Hanson
- Shortened Case Name:
Goomboorian Transport Pty Ltd v Hanson (No 3)
 QSC 189
14 Aug 2018
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 135||12 Jun 2018||Declaration that life insurance policy received by second and third defendants as trustees for third and sixth plaintiffs; claim for declaratory relief in respect of a death benefit, and in respect of specific chattels, refused; declared the second and third defendants hold their interest in specific real property subject to an equitable lien in favour of the plaintiffs; plaintiffs' application to re-open case dismissed; plaintiffs otherwise to be heard on the form of relief: Bond J.|
|Primary Judgment|| QSC 182||14 Aug 2018||Form of order and costs: Bond J.|
|Primary Judgment|| QSC 189||14 Aug 2018||Further orders with respect to realising personal property and order for statutory order of sale pursuant to s 38 of the Property Law Act 1974 (Qld): Bond J.|
|Primary Judgment|| QSC 190||14 Aug 2018||Second and third defendants' application for stay of orders made in  QSC 189 granted on an interim basis until 24 August 2018 (save for the order appointing statutory trustees for sale which is stayed until further order): Bond J.|
|Primary Judgment|| QSC 194||27 Aug 2018||Upon the second and third defendants' undertaking, orders made in  QSC 189 stayed until appeal from  QSC 135 or further order: Bond J.|
|Appeal Determined (QCA)|| QCA 41  3 Qd R 375||12 Mar 2019||Appeals allowed; set aside order 2 made 12 June 2018 and in lieu thereof substitute a declaration that life insurance proceeds are held as trustee only to the extent of 1/95 tenth respondent; 2/95 second and tenth respondents and 1/95 to third and sixth respondents; set aside Orders 5, 6, 7, 9 and 10 made on 14 August 2018 (orders as to property); set aside Orders 1 to 6 made on 14 August 2018 (costs order): Gotterson and McMurdo JJA and Douglas J.|
|Appeal Determined (QCA)|| QCA 207||04 Oct 2019||Further order and costs order: Gotterson and McMurdo JJA and Douglas J.|
|Special Leave Refused (HCA)|| HCATrans 192||13 Sep 2019||Special leave refused: Bell and Keane JJ.|