Lambourne v Marrable [No 2][2023] QSC 247

SUPREME COURT OF QUEENSLAND

1. [1]
   I gave judgment in this matter on 9 October 2023^[1] and gave leave to the parties to file material and submissions concerning the appropriate form of orders and with respect to costs.
2. [2]
   The parties agree on some orders, but not on:

   1. the appropriate order for costs;
   2. whether some interlocutory orders made in 2022 should be, in effect, reversed; and
   3. whether the undertakings given by the applicants should be discharged.

What costs orders are sought?

3. [3]
   The applicants seek an order that the first respondent (Harvey) pay their costs of and incidental to the proceeding (including reserved costs) on the indemnity basis.
4. [4]
   The first respondent seeks the following orders:

   1. each of the first, second and third applicants pay the first respondent’s costs of the hearing on 1 September 2022 on the indemnity basis; and
   2. each of the first, second and third applicants pay the first respondent’s costs of the balance of the proceeding on the standard basis.
5. [5]
   I will deal with the costs of the proceedings – excluding those relating to 1 September 2022 – first.

What costs orders should be made?

6. [6]
   Section 125 of the Powers of Attorney Act 1998 (the Act) provides:

“Costs

  (1) The costs of a proceeding are within the court’s discretion.

  (2) However, unless the court otherwise orders, costs follow the event.”

7. [7]
   That provision is relevantly indistinguishable from r 681 of the Uniform Civil Procedure Rules (UCPR):

“(1) Costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.

  (2) Subrule (1) applies unless these rules provide otherwise.”

8. [8]
   Ms Treston KC submitted that there was an exception to the general principle, enunciated in s 125 that costs follow the event, where the proceeding is in the court’s “protective jurisdiction”. When in the “protective jurisdiction”, it was submitted that the exercise of discretion calls for the making of an order which is, in all the circumstances, proper.
9. [9]
   This submission was based upon a series of decisions made by judges in the Equity Division of the Supreme Court of New South Wales. The effect of those decisions was summarised by Slattery J in FC v SC (No 2)^[2] where his Honour said:

“[17] The applicable legal principles may be shortly stated. In matters in the Court’s protective jurisdiction the Court’s discretion as to costs may be exercised by reference to what in all the circumstances seems proper rather than to apply the rule required by Uniform Civil Procedure Rules 2005, r 42.1, that costs follow the event: CAC v Secretary, Dept of Family and Community Services [2014] NSWSC 1855 at [130]. Costs in the protective jurisdiction have come to be regarded as exceptions to the general principle that costs follow the event because the proceedings are taken in the interest of those thought to be incapable of protecting themselves and their property and that those who would otherwise be concerned to act to protect the mentally ill or the mentally infirm might be deterred from acting if they were to expose themselves to the risk of costs if their application, though reasonably made, were unsuccessful: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640E-F per Powell J.”

(emphasis added)

10. [10]
    His Honour went on to identify some of the relevant considerations in determining a proper costs order:

    1. a party conducting proceedings in an unnecessarily adversarial matter may be required to bear the costs of the whole or part of the proceedings: CAC v Secretary, Dept of Family and Community Services [2014] NSWSC 1855 at [131];
    2. the making of an order for costs should not impact on the incapable person’s security or wealth: Bolton v Sanders (No 2) [2003] VSC 409 at [2];
    3. the respective resources of the parties to the proceedings are relevant to the exercise of the discretion: P v NSW Trustee and Guardian [2015] NSWSC 579 at [369]; and
    4. the Court may refrain from imposing an obligation to pay costs, if it could adversely impact on the relationships of or care of the person in need of protection: Re K Statutory Will [2017] 96 NSWLR 69 at [17] .
11. [11]
    Additional reasoning supporting the exception is found in Lindsay J’s decision in CAC v Secretary, Dept of Family and Community Services (No 2):^[3]

“[14] The Supreme Court is not a “no costs“ jurisdiction. Although the court has a wide costs jurisdiction, the general rule remains that costs follow the event, unless the court otherwise orders. Parties to proceedings in the court conduct litigation at their own risk as to costs.

[15] In the protective jurisdiction, because of the purposive nature of the jurisdiction (confirmed by Marion’s Case (1992) 175 CLR 218 at 258–259) and accumulated experience, the court may proceed on the basis that it is generally necessary, and appropriate, to ask ‘What, in all circumstances, seems the proper order to make in relation to costs?’

[16] This question gives due recognition to the following factors, amongst others:

1. The protective jurisdiction of the court is generally governed by the ‘welfare principle’ (that the welfare and interests of each person in need of protection, here the plaintiff’s children, are the paramount consideration) and an associated concern to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the particular person in need of protection.

2. The court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the court, even though reasonably made: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640F. Cf, Wilson v Dept of Human Services; Re Anna (No 2) [2011] NSWSC 545 at [95]–[108].

3. Taking into account the best interests of children the subject of proceedings, the court needs to hasten slowly in burdening a parent with an obligation to pay costs, particularly in circumstances in which a final outcome for the children in Children’s Court proceedings remains undetermined: Re Kerry (No 2) — Costs [2012] NSWCA 194 at [12] and [17]–[18].

4. Proceedings relating to the welfare of children, or any other person in need of protection, are not adversarial in the sense encountered in ordinary civil litigation but, rather, are attended by a strong, special public interest element.”

12. [12]
    The New South Wales authorities have not attracted much attention in this State. In Pickersgill v Pickersgill (by her litigation guardian Jackson),^[4] Davis J referred to CAC v Secretary, Department of Family and Community Services (No 2) but did not regard himself as bound to follow that reasoning. He said:

“[31]  The second and third respondents made various submissions by referring to cases concerning ‘the awarding of costs in the protective jurisdiction.’ Those cases stand as authority for the proposition that a ‘costs follow the event’ approach is often not appropriate where an unsuccessful party has brought or defended proceedings to protect another.”

(emphasis added)

13. [13]
    The legislation in New South Wales which applied in the various cases above did not contain a provision such as s 125, but the Uniform Civil Procedure Rules 2005 (NSW) does contain a provision to the same effect as UCPR r 681.
14. [14]
    Mr Dunning KC submitted that there was a short answer to the question of costs – fidelity to the legislative choice expressed in s 125.
15. [15]
    He also argued that, even if the principles expressed in the New South Wales cases did apply, this was a case which was conducted in a fully adversarial way and that should be recognised in any costs order. He did place in contrast the reasoning in Re Kerry (No 2)^[5], a decision of the New South Wales Court of Appeal, the subject of which fell squarely within the “protective jurisdiction” of that court. Barrett JA (with whom Tobias AJA and Schmidt J agreed) said:

“[4] The starting point in deciding how the court’s discretion with respect to costs under s 98 of the Civil Procedure Act 2005 should be exercised in this case is r 42.1 of the Uniform Civil Procedure Rules 2005:

‘Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.’”

16. [16]
    His Honour went on to say:

“[12]  … By acting as plaintiffs to invoke the supervisory jurisdiction of the Supreme Court under s 69 of the Supreme Court Act 1970, the costs respondents chose to enter an arena in which specific rules as to costs apply; and the Supreme Court should apply those rules without regard to principles that operate in relation to proceedings of other kinds. I would endorse the approach taken by Hallen AsJ to a like submission in Wilson v Department of Human Services; re Anna (No 2) [2011] NSWSC 545 at [106]:

In this court, there is no need to find ‘exceptional circumstances’ before a costs order in favour of a successful party in a child care case can be made. As written earlier, neither the Civil Procedure Act, nor the Uniform Civil Procedure Rules provides for such a requirement. The general theory of costs relies on the result of the litigation: if one is successful, one is entitled to expect an order for costs.”

(emphasis added)

17. [17]
    Barrett JA went on to refer to the statement of McHugh J in Oshlack v Richmond River Council^[6] concerning contests which have some public interest aspect to them:

“[90]  The possibility of adverse costs orders may well inhibit some individuals and groups from bringing cases to court which involve challenges to aspects of public law. Express recognition of this fact does not, however, mean that the courts should remove this inhibition by adopting a practice of declining to follow the usual order as to costs in cases of ‘public interest litigation.’ Whether or not one regards a particular applicant’s actions as well-intentioned and striving, albeit unsuccessfully, to serve some perceived public interest, the respondent still faces real costs from having to defend the proceedings successfully. The applicant had a choice as to whether or not to be a party to the relevant litigation. The respondent typically had no such choice. The legislature has chosen not to protect such applicants from the effects of adverse costs orders, whether by an express statutory exemption or the creation of some form of applicants’ costs fund. In such circumstances, one may well feel some sympathy for the plight of the unsuccessful applicant. But sympathy is not a legitimate basis to deprive a successful party of his or her costs.”

(emphasis added)

18. [18]
    Section 125 is in Chapter 6 of the Act which deals with the powers of the Supreme Court. The presence in that chapter of s 125, when words of similar effect were already present in the UCPR, suggests that the legislature determined that the general rule should apply in matters under the Act. Whether I am correct in that or not, many of the matters raised by Ms Treston are matters which are relevant to the ordinary exercise of discretion when considering costs.
19. [19]
    The most telling of the arguments advanced on each side related to how adversarial the proceedings were. Were the proceedings unnecessarily adversarial? Any contested proceeding will engage the ordinary adversarial processes of a trial. And even the most mundane proceeding can excite the emotions of the parties and the extent to which one party distrusts the other can raise the adversarial temperature. There is no test for this^[7] but one can measure the conduct against one end of the spectrum, say, the behaviour of an attorney or guardian or trustee who comes before the court with limpid submissions and dispassionately lays the evidence out for consideration.
20. [20]
    The first step in this process is to consider the relief sought by the applicants. In summary, they sought declarations:

    1. that Harvey had impaired capacity for all matters from 8 June 2022;
    2. that Harvey had impaired capacity for all matters on particular dates, being the various dates on which Harvey had revoked the 9 December EPOAs and executed further EPOAs; and
    3. as to whether Harvey had impaired capacity, or the extent of his capacity, with respect to particular financial matters or transactions.
21. [21]
    Mr Dunning made the important point that the 9 December EPOAs provided that the attorney’s power existed only so long as Harvey did not have capacity for personal and financial matters. In other words, the EPOAs provided that they came into effect upon the loss of capacity, but ceased operating upon capacity being regained.
22. [22]
    This was not a case in which the principal who executed the EPOA was at all stages clearly lacking capacity.  At trial, Harvey maintained that he had not lost capacity. I found that he had, but that he had regained capacity within a matter of weeks. Much of the trial was taken up with a consideration of Harvey’s conduct after he had regained capacity. At that time, of course, Harvey’s conduct was no longer the business of the applicants in their roles as former attorneys.
23. [23]
    The adversarial nature of the litigation was plain from the very beginning. In the early applications before this Court orders were sought preventing Harvey from taking any steps to deal with his own bank accounts, to cause him to be removed as a director of the various companies, and to take such steps as may be required to prevent any dealings in respect of any shareholding held by Harvey in the Group Companies. Further, the orders sought (and obtained) worked to prevent Harvey from properly funding lawyers to act for him.
24. [24]
    I do not propose to go through, in detail, the various matters which support my conclusion that this case was conducted in a thoroughly adversarial way – they can be found in my earlier reasons. Witnesses on both sides were subjected to detailed and lengthy cross examination. Some were challenged on issues of credit in a robust and unremitting way. The evidence of Kate and Luke, in particular, was unreliable in many respects and was the basis for much of the argument about Harvey’s so-called deterioration in the period leading up to the injury he suffered on the farm. This case was conducted by the applicants, from the very beginning, in a way designed to ensure that Harvey was removed from having any involvement in the companies and to deny him any ability to gain access to his personal funds.
25. [25]
    The applicants pointed to the fact that they had made an offer to resign as attorneys. But that offer needs to be considered in the light of all the circumstances.
26. [26]
    The offer to resign was only with respect to the Personal EPOA, not the Financial EPOA. They were content to allow Harvey to find other attorneys for matters concerning his health but were concerned to retain the power with respect to his finances.
27. [27]
    The applicants also raised the question of the state of the medical evidence at the time of the commencement of these proceedings. Early in the life of this fracturing of family relationships, it was proposed by Harvey’s solicitors that he be examined by an independent expert. The applicants refused that, preferring to rely upon the opinions formed by Dr Khateeb and Dr Jones in circumstances which were not ideal for the purposes of arriving at an informed diagnosis. They were adamant that an independent examination was neither necessary nor justifiable.
28. [28]
    Another point raised by the applicants concerned their financial circumstances and an affidavit of one of the applicants was advanced on this hearing. None of the applicants are wealthy. Harvey is. It was argued that the disparity in financial resources between the applicants and Harvey was relevant. That is a matter frequently referred to as relevant in the New South Wales cases relied upon. I do not regard that as relevant in light of my determination about s 125. As McHugh J said in Oshlack:^[8]

“In such circumstances, one may well feel some sympathy for the plight of the unsuccessful applicant. But sympathy is not a legitimate basis to deprive a successful party of his or her costs.”

29. [29]
    The applicants also argued that their view of Harvey’s condition at the time of commencing these proceedings was based upon expert opinion. They say that they relied upon what they had been told or what was recorded by Dr Khateeb and Dr Jones. But they did have another report from Ms Anderson to the contrary effect. If anything, it might have motivated them to seek further advice. Their state of knowledge is no reason why costs should not follow the event.^[9]
30. [30]
    The applicants have been substantially unsuccessful in the conduct of this litigation. I do, though, take into account that part of the material relied upon and part of the hearing concerned Harvey’s capacity on or about 8 June 2022. I found that he had lost capacity, on a temporary basis, at that time. It is not as if the applicants were acting without authority at all times.
31. [31]
    In the light of what I have said above and in recognition of the material involved and time engaged at trial on the issue of Harvey’s capacity at various times, I order that the applicants pay 70% of Harvey’s costs of the application (apart from the costs of the hearing on 1 September 2022) on the standard basis.

The 1 September hearing

32. [32]
    On 19 August 2022, the applicants applied ex parte for a number of orders. They submitted that there was a need for an urgent ex parte hearing because there was “an immediate risk that Harvey’s assets may be dissipated by his own poor judgement or due to the risk of influence of others”. They sought:

    1. orders authorising the applicants to take certain steps including removing Harvey as a director and secretary of the Group Companies;
    2. interim declarations that Harvey be deemed not to have capacity from 8 June 2022 for financial matters or to make revoke any power of attorney; and
    3. interim declarations that the revocations in June and August 2022 and the EPOAs made in June and August were invalid.
33. [33]
    On the basis of the information provided to the Court, those orders were made.
34. [34]
    On 1 September 2022, Harvey successfully applied for orders vacating most of the orders of 19 August 2022.
35. [35]
    Mr Dunning submits that Harvey should receive his costs of the application on 1 September 2022 on the indemnity basis.
36. [36]
    Anybody who proceeds ex parte bears a substantial burden. It is because of the implications for fundamental notions of natural justice that the general law admits of orders ex parte having the potential to affect substantive rights only when ‘‘compelled by the necessity of the occasion’’: Re South Downs Packers Pty Ltd.^[10]
37. [37]
    In Re South Downs Packers, Connolly J (with Campbell CJ agreeing) said:

‘‘it is the duty of a party asking for an injunction or indeed for any order ex parte to bring under the notice of the Court all facts material to the determination of his right to that relief …

‘Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall…’’’

(emphasis added)

38. [38]
    In Re Griffiths,^[11] Byrne J (as his Honour then was) said of that requirement:

“This is a demanding responsibility. An applicant may be unwilling to accept a duty to make full and frank disclosure of the material facts. The duty is not restricted merely to facts actually known. In Brink’s Mat Ltd v. Elcombe [1988] 1 W.L.R. 1350, Ralph Gibson L.J. said at 1356:

‘‘The applicant must make proper enquiries … the duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such enquiries.’’

(emphasis added)

39. [39]
    Mr Dunning offered up some examples of non-compliance with the applicants’ duty of disclosure which are relevant to the exercise of discretion when considering costs. They included:

    1. A failure to make proper enquiries of Dr Khateeb and Dr Jones as to their diagnoses and the reasons for the opinions set out in the hospital records.

The complaint is made that there was no explanation given for the failure to verify the reasons for Dr Jones’ conclusion that Harvey did not have capacity. It was also argued that Doctor Jones’ view of capacity was not consistent with the way it is dealt with in the Act. I do not regard either of those as telling submissions. An attorney is ordinarily entitled to proceed, in the absence of conflicting evidence, on the basis of an expert’s opinion.

What is more to the point, though, is that the judge hearing the matter did not have his attention drawn to the fact that Dr Khateeb did not undertake a capacity assessment and that he had only formed a belief as to decisions on lifestyle and health care matters – not financial matters. And, further, that Dr Jones placed weight on Doctor Khateeb’s opinion informing his own. Those matters should have been placed before the judge. It is no excuse, as the applicant sought to say, that there were a lot of hospital records to consider. That is a burden that an applicant seeking ex parte orders must bear.

2. Some of the matters relied upon at the trial of this application and which I found to be of little moment were placed before the judge as examples of decisions taken by Harvey which were “not the decisions and actions of a prudent businessperson”.

The findings that I made were based upon the totality of the evidence before me. The fact that I did not accept some of what was said by Kate and Luke is not determinative of this point.

40. [40]
    Another point raised was that the applicants did not draw the Court’s attention to the authorities which establish that orders which issue ex parte should not be framed as interlocutory orders. In Ross v Internet Wines Pty Ltd^[12] the New South Wales Court of Appeal said:

“[109] It is generally undesirable that ex parte relief be granted until further order, as was done in order 3 and order 5 made on 8 August 2003, or that mandatory relief be granted ex parte as was done in order 4 then made. The party subject to ex parte relief should not have to apply to discharge it.”

(emphasis added)

41. [41]
    This point was taken up by Leeming JA (Bathurst CJ and McColl JA agreeing) in Minister for Local Government v Blue Mountains City Council^[13] where his Honour said:

“[46]  Fourthly, the order which issued ex parte should not have been framed as an interlocutory order, expressed to continue ‘until further order’. It should have been expressed as an interim order, expiring in one or two days’ time, leaving it to the Council to renew its application after the Minister had been notified.

[47]  Fifthly, the Minister should not have been placed in a position the following day of being required to move for the dissolution of the order which had been made in her absence and without notice to her. The onus to renew the order at all times lay with the Council. In Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 at 731, McLelland J observed that even if the injunction which was issued on an ex parte application was expressed until further order, it should be discharged on the return date unless the plaintiff showed sufficient reason for its continuation.”  (emphasis added)

42. [42]
    The applicants bore the onus of ensuring that any orders sought were expressed properly and in accordance with authority. In this case, the declarations sought and made were:

“Pursuant to section 118(2) of the Powers of Attorney Act 1998 (Qld) that, until further order of the Supreme Court of Queensland, it is declared that:

1. Harvey Warren Marrable be deemed not to have capacity from 8 June 2022:

1. for financial matters; and

2. to make or revoke any power of attorney, enduring power of attorney or advance health directive; and

2. the following documents be deemed to have been invalid and of no effect:

1. the purported revocations of the Financial EPOA respectively dated 28 June 2022 and 12 August 2022;

2. the purported revocations of the Enduring Power of Attorney for personal matters granted by Harvey Warren Marrable in favour of the First Applicant, Second Applicant and Third Applicant on 6 December 2019 respectively dated 27 June 2022 and 12 August 2022; and

3. the purported Enduring Power of Attorney for personal and financial matters granted by Harvey in favour of Philip Murphy, Brooke Leila McGifford, and Jason Campbell McGifford dated 15 August 2022.

43. [43]
    The form of those orders is contrary to authority. As the decisions referred to above demonstrate, the party the subject of ex parte relief should not be placed in a position of being required to move for the dissolution of an order made in his or her absence and without notice and that the onus to renew a properly drawn order at all times lies with the applicant.
44. [44]
    The order also placed Harvey in the precarious position of being denied access to his personal funds such that he had no ability to pay for lawyers. The effect of the order was that, without a generous approach by his solicitors and barristers, he would have found it very difficult to challenge the orders.
45. [45]
    These orders went beyond that which was necessary. They effectively granted the relief sought and obtained a form of relief unknown to the law, that is, an interlocutory declaration.^[14]
46. [46]
    The applicants submit that the complaints about the ex parte application are “overblown” and that the applicants’ conduct should be judged based upon what they knew at the time, rather than what is now known.
47. [47]
    They advance the submission that, even had they only sought the equivalent of a “freezing order”, the parties would still have had to return to court and that there were no “extra” costs arising out of the different character of the order is made.
48. [48]
    They also argued that the period involved was short, that is, between 19 August 2022 and 1 September 2022.
49. [49]
    I agree that, whatever form the orders had taken, costs would have been incurred on a return date. Mr Dunning submitted that “the bringing of the application by the applicants, and of the applicants’ conduct after having obtained these orders is conduct deserving of reproof by the Court” and that the appropriate order is for costs on an indemnity basis. I do not accept that the conduct of these parties after obtaining an order is a relevant consideration on the question of costs.
50. [50]
    I am satisfied that one of the most important pieces of evidence relevant to the whole issue of Harvey being effectively restrained on all financial matters was that Dr Khateeb had expressed no opinion as to his financial capacity. That should have been made obvious at the ex parte hearing and it should have been made obvious that, when Dr Jones expressed his view, he was agreeing with Dr Khateeb. This was a matter upon which the applicants bore the onus and they failed to make the “proper enquiries” so that they could properly inform the judge of those matters which would have been brought up by Harvey had he been given notice of the application.
51. [51]
    The failure to comply with their obligations on such an important point leaves open the distinct possibility that the ex parte orders concerning financial matters might not have been made. This renders the applicants liable to an order for costs on the indemnity basis.

Should some interlocutory orders be “reversed”?

52. [52]
    In the order of 19 August 2022 there were orders made, until further order of the Court, that the first and second applicants were authorised, among other things, to cause Harvey to be removed as a director and secretary of the Group Companies. Harvey seeks an order expunging these, and the associated orders, and to be placed in the position, so far as possible, that he was in before the interlocutory orders were made.
53. [53]
    The applicants’ response is that Harvey was automatically removed as a director by operation of an earlier resolution of the Group Companies. The resolution is to the effect that, if Harvey became incapacitated to the extent that he was not able to make decisions and manage the business as the sole director of the company, then with effect from the date of his illness or incapacity Luke and Kate were appointed as directors.
54. [54]
    The operation of that resolution was regarded by Kate and Luke as having taken effect. On 6 July 2022, they informed their current solicitors that Harvey was no longer a director of the various companies.
55. [55]
    If that was so, Mr Dunning asked rhetorically, why then were the orders sought and made on 19 August? There would have been no need for such orders because of the automatic operation of the relevant part of each constitution.
56. [56]
    The proper construction of the memorandum was not the subject of argument when the order was first obtained and no orders have been sought since then as to their operation and effect or validity.
57. [57]
    It has been submitted on Harvey’s behalf that if an order is not made reversing the earlier orders then Harvey will exercise his rights pursuant to his shareholding to make those changes.
58. [58]
    A general principle, to be applied in cases such as this, is that a court should, so far as possible, “place the parties in the position they would have occupied, but for such decree or such part thereof as had been varied or reversed”, it being inherent in the general jurisdiction of the Court to act fairly according to the circumstances towards all parties involved – see the discussion in Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd.^[15]
59. [59]
    The orders made with respect to the Group Companies was made “until further order of the Supreme Court of Queensland”. Given that there has been no relief sought with respect to the true construction of the provisions in the various constitutions for replacement, and the general presumption in favour of returning to the status quo, I will make the orders sought on behalf of Harvey.

Should the undertakings be discharged?

60. [60]
    The applicants argue that their undertakings as to damages should not be extended because there is “no basis for it to continue to be extended”.
61. [61]
    The respondent, in the draft order which he seeks, proposes that the undertakings given by Kate and Luke on 18 August 2022, 1 September 2022, 25 July 2023, 17 August 2023 and 30 August 2023 be discharged.
62. [62]
    The only undertakings which the first respondent seeks to have remain in force are those which were given by Kate and Luke on 19 October 2022.
63. [63]
    Those undertakings were in the usual form, that is, to pay to a person affected by the order made on 19 August 2022 or 1 September 2022 an amount the court decides should be paid for damages that that person sustained because of those orders.
64. [64]
    A person who gives an undertaking to a court may seek to be released from its burden in limited circumstances. If the person succeeds at trial, for example, then there will be no damages to which the undertaking might attach.
65. [65]
    I adopt what was said on this issue by McKerracher J in Schutz DSL (Aust) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 5):^[16]

“[16]  When a material change in circumstances since an interlocutory injunctive order was made or undertaking to the court given, or when there are exceptional circumstances which warrant reconsideration of the matter or, where as a matter of discretion, the justice of the matter requires that the issue be revisited, then the court should do so. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 (at 177–178), Gibbs LJ, Aickin, Wilson and Brennan JJ said (footnotes omitted):

‘Considerable argument was directed to the question whether a court has power, otherwise than in the case of mistake operative at the time of giving it to release a party from an undertaking, at least in the absence of the consent of the other party. But in our opinion a court undoubtedly has such a power. Just as an interlocutory injunction continues “until further order”, so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf Woods v Sheriff of Queensland; Hutchinson v Nominal Defendant; Chanel Ltd v F W Woolworth & Co Ltd. Of course, the changed circumstances must be established by evidence: Cutler v Wandsworth Stadium Ltd.’” (emphasis added)

66. [66]
    The undertakings given by the applicants were proffered so that the orders they sought would be made. Mr Wacker advanced an argument that, if Kate and Luke were appointed as directors pursuant to a resolution of the respective companies rather than because of the orders made, then the undertaking as to damages would not respond. That may well be correct, but that is an issue which has yet to be decided. In any event, the undertakings which Harvey seeks to have remain in place were given in the context of a different set of orders – they did not relate to the removal of Harvey from his position of director and secretary of each of the Group Companies. There has been no material change in circumstances to justify releasing the applicants from those undertakings.

Orders

67. [67]
    I make the orders attached to these reasons.

SUPREME COURT OF QUEENSLAND

REGISTRY:  BRISBANE

NUMBER:  BS9948/22

ORDER

Before:  Martin SJA

Date:  10 November 2023

Initiating document: Amended Originating Application filed 11 October 2022

In this order terms used have the following meanings:

Accounts means:

1. (a)
   any account with a bank or financial institution held by the Group Companies solely or jointly with any third parties;

2. (b)
   any account with a bank or financial institution held by the First Respondent solely or jointly with any third parties.

Financial EPOA means the Enduring Power of Attorney for financial matters granted by the First Respondent in favour of the First Applicant and Second Applicant on 9 December 2020.

Group Companies means:

1. (a)
   Harvey W Marrable Properties Pty Ltd ACN 009 697 992 (formerly known as Gold Coast Bakeries Pty Ltd);

2. (b)
   Harvey W Marrable Properties (Queensland) Pty Ltd ACN 010 286 343 (formerly known as Gold Coast Bakeries (Queensland) Pty Ltd);

3. (c)
   Harvey W Marrable Properties (No 2) Pty Ltd ACN 648 935 077 (formerly known as Gold Coast Bakeries (No 2) Pty Ltd);

4. (d)
   Harvey Marrable Properties (No 3) Pty Ltd ACN 648 935 086 (formerly known as Gold Coast Bakeries (No 3) Pty Ltd); and

6. (f)
   Marrable Pty Ltd ACN 009 985 531.

Personal EPOA means the Enduring Power of Attorney for personal matters granted by the First Respondent in favour of the First Applicant, Second Applicant and Third Applicant on 9 December 2020.

Real Property means:

1. (a)
   any real property in which a Group Company solely or jointly with any third parties, any of the Applicants or the First Respondent is the registered owner;

2. (b)
   any real property in which the First Respondent solely or jointly with any third parties, any of the Applicants, the Group Companies is the registered owner.

THE ORDER OF THE COURT IS THAT:

Amended Originating Application

1. It is declared, pursuant to section 111 of the Powers of Attorney Act 1998 (Qld), that on or about 8 June 2022 the First Respondent temporarily lost the capacity to make decisions for personal and financial matters.

2. It is declared, pursuant to section 115 of the Powers of Attorney Act 1998 (Qld), that on or about 8 June 2022:

1. (a)
   the powers of the First Applicant and Second Applicant under the Financial EPOA began; and

2. (b)
   the powers of the First Applicant, Second Applicant and Third Applicant under the Personal EPOA began.

3. It is declared, pursuant to section 111 of the Powers of Attorney Act 1998 (Qld), that on or shortly before 27 June 2022 the First Respondent regained the capacity to make decisions for personal and financial matters.

4. It is declared, pursuant to section 115 of the Powers of Attorney Act 1998 (Qld), that on or shortly before 27 June 2022:

1. (a)
   the powers of the First Applicant and Second Applicant under the Financial EPOA ended; and

2. (b)
   the powers of the First Applicant, Second Applicant and Third Applicant under the Personal EPOA ended.

5. It is declared, pursuant to section 113 of the Powers of Attorney Act 1998 (Qld), that the First Respondent:

1. (a)
   validly revoked the Personal EPOA on 27 June 2022; and

2. (b)
   validly revoked the Financial EPOA on 28 June 2022.

6. The Amended Originating Application is otherwise dismissed.

Undertakings

7. The undertakings given by the First Respondent, Second Respondent, Third Respondent and Fourth Respondent on 1 September 2022 be discharged.

8. Subject to the compliance of the First Applicant and Second Applicant with the orders set out in paragraphs 11 to 17 below, the undertakings given by the First Applicant and Second Applicant on 18 August 2022, 1 September 2022, 25 July 2023, 17 August 2023 and 30 August 2023 be discharged.

9. As to the undertakings given by the First Applicant and Second Applicant on 19 October 2022:

1. (a)
   those undertakings remain in force; and

2. (b)
   the determination by the Court of any amount the Court decides should be paid by the First Applicant and Second Applicant for damages that a person who is affected by the order of Boddice J made on 19 August 2022 or the order of Boddice J made on 1 September 2022, may sustain because of those orders be adjourned to a date to be fixed.

Consequential Orders

Restraint on the First Applicant and Second Applicant

10. Except to the extent contemplated by paragraphs 11 to 17 below, the First Applicant and Second Applicant be restrained from taking any steps or doing any other such thing as would bind the Group Companies.

Appointment and resignation as officers of Group Companies

11. By 4.00pm on 16 November 2023, the First Applicant and Second Applicant:

1. (a)
   resolve as directors to appoint First Respondent as director and secretary of the Group Companies; and

2. (b)
   notify and provide written evidence to the legal representatives of the First Respondent of compliance by the First Applicant and Second Applicant with sub-paragraph (a).

12. By 1.00pm on 17 November 2023, the First Applicant and Second Applicant:

1. (a)
   resign as directors and secretaries of the Group Companies; and

2. (b)
   notify and provide written evidence to the legal representatives of the First Respondent of compliance by the First Applicant and Second Applicant with sub-paragraph (a).

13. By 4.00pm on 17 November 2023, the First Applicant and Second Applicant:

1. (a)
   cause the register kept by the Australian Securities and Investments Commission to be updated reflect the changes in paragraph 11(a) and 12(a) above; and

2. (b)
   notify and provide written evidence to the legal representatives of the First Respondent of compliance by the First Applicant and Second Applicant with sub-paragraph (a).

Real Properties and Accounts

14. By 4.00pm on 17 November 2023, the First Applicant and Second Applicant:

1. (a)
   remove the EPOA from any registers, titles or with any financial institutions; and

2. (b)
   notify and provide written evidence to the legal representatives of the First Respondent of compliance by the First Applicant and Second Applicant with sub-paragraph (a).

15. By 4.00pm on 17 November October 2023, the First Applicant and Second Applicant:

1. (a)
   remove their access to the Accounts; and

2. (b)
   notify and provide written evidence to the legal representatives of the First Respondent of compliance by the First Applicant and Second Applicant with sub-paragraph (a).

Other matters

16. By 4.00pm on 17 November 2023, the First Applicant and Second Applicant deliver up to the legal representatives of the First Respondent:

1. (a)
   all corporate keys and company documents of the Group Companies in their possession or control;

2. (b)
   all log-in and password details for any Accounts in their possession or control;

3. (c)
   all log-in and passwords to the Group Companies’ Xero or any other accounting software in their possession or control;

4. (d)
   all keys and security devices for the Real Property in their possession or control; and

5. (e)
   all assets of the Group Companies in their possession or control.

17. By 4.00pm on 17 November 2023, and subject to compliance by the First Applicant and Second Applicant with paragraphs 11 to 13 above, the parties send joint correspondence, in the form of Annexure A to these orders, to:

1. (a)
   Suncorp Bank;

2. (b)
   Bendigo Bank;

3. (c)
   any other bank or financial institution in which an Account is held;

4. (d)
   Holt Lawyers;

5. (e)
   WMS Solutions;

6. (f)
   Cory Hill of CN Hill Accountants,

7. (g)
   Homestyle Bakeries Pty Ltd.

Costs

18. Each of the First Applicant, Second Applicant and Third Applicant pay the First Respondent’s costs of the hearing before Boddice J on 1 September 2022 on the indemnity basis.

19. Each of the First Applicant, Second Applicant and Third Applicant pay 70% of the First Respondent’s costs of the balance of the proceeding on the standard basis.

Signed:

Annexure A

[salutation]

This is a joint letter sent on behalf of Kate Lambourne, Luke John Marrable and Harvey Warren Marrable pursuant to Orders of the Supreme Court of Queensland (Orders) made on [insert date].

We refer to:

1. Harvey W Marrable Properties Pty Ltd ACN 009 697 992, Harvey W Marrable Properties (Queensland) Pty Ltd ACN 010 286 343, Harvey W Marrable Properties (No 2) Pty Ltd ACN 648 935 077, Harvey Marrable Properties (No 3) Pty Ltd ACN 648 935 086, Harvey Marrable Properties (No 4) Pty Ltd ACN 648 962 449, Marrable Pty Ltd ACN 009 985 531 (the Group Companies).

2. the Enduring Power of Attorney for financial matters granted by Harvey Marrable in favour of Kate Lambourne and Luke Marrable on 9 December 2020 (Financial EPOA).

The parties hereby inform you that:

1. the Financial EPOA was validly revoked by Harvey Marrable on 28 June 2022;

2. Kate Lambourne and Luke Marrable are no longer directors of the Group Companies;

3. Harvey Marrable is sole director and secretary of the Group Companies.

We enclose a sealed copy of the Orders.

Yours faithfully

Kate Lambourne  Luke John Marrable

Harvey Warren Marrable

Sole Director & Secretary of the Group Companies