https://www.sclqld.org.au/caselaw/QSC/2020/389

SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – DISPOSAL OF BODY – where the deceased, an Indigenous man, died age 28 – where the deceased’s mother and aunt disagree about whether the deceased should be buried at Mareeba or at Croydon – where the deceased’s mother contends for a burial at Mareeba – where the deceased’s aunt contends for a burial at Croydon –where there is a mix of custom related considerations producing no single clear result – where the deceased was born in Mareeba – where the deceased spent a considerable part of his adolescence and his adult life in Croydon – where the deceased’s mother would have priority to a grant of letters of administration – where Mareeba would be a more logistically convenient location for the deceased’s relatives who are not from Mareeba or Croydon to travel to – where the deceased’s mother has been personally targeted and assaulted for seeking the deceased’s burial at Mareeba – whether the body of the deceased should be released into the custody of the deceased’s mother or aunt for burial at Mareeba or Croydon

EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTIONS: MISCELLANEOUS – where, at a re-trial, the defendant pleaded not guilty to a charge of attempted murder – where at the previous trial the jury failed to reach verdict in relation to the charge of attempted murder – where the Crown was unable to locate a witness who gave evidence at the previous trial – where the Crown and the defence seek to rely upon an audio recording of the witness’ evidence at the previous trial for the truth of its contents – whether the audio recording can be relied upon for the truth of its contents despite its hearsay character

SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – DISPOSAL OF BODY – where the deceased, an Indigenous man, died age 28 – where the deceased’s mother and aunt disagree about whether the deceased should be buried at Mareeba or at Croydon – where the deceased’s mother contends for a burial at Mareeba – where the deceased’s aunt contends for a burial at Croydon –where there is a mix of custom related considerations producing no single clear result – where the deceased was born in Mareeba – where the deceased spent a considerable part of his adolescence and his adult life in Croydon – where the deceased’s mother would have priority to a grant of letters of administration – where Mareeba would be a more logistically convenient location for the deceased’s relatives who are not from Mareeba or Croydon to travel to – where the deceased’s mother has been personally targeted and assaulted for seeking the deceased’s burial at Mareeba – whether the body of the deceased should be released into the custody of the deceased’s mother or aunt for burial at Mareeba or Croydon

EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTIONS: MISCELLANEOUS – where, at a re-trial, the defendant pleaded not guilty to a charge of attempted murder – where at the previous trial the the jury failed to reach verdict in relation to the charge of attempted murder – where the Crown was unable to locate a witness who gave evidence at the previous trial – where the Crown and the defence seek to rely upon an audio recording of the witness’ evidence at the previous trial for the truth of its contents – whether the audio recording can be relied upon for the truth of its contents despite its hearsay character

EQUITY – TRUSTS AND TRUSTEES – VESTING ORDERS – VESTING ORDERS, CONVEYANCES AND TRANSFERS – VESTING ORDERS – where the defendant was formerly the trustee of a trust, but was removed and replaced by the plaintiff as trustee – where there is a dispute as to the capacity in which the defendant purchased certain real property located in New South Wales prior to its removal as trustee, namely, as trustee of the trust or in its personal capacity – where the defendant and its now sole director have refused to deliver up the certificate of title to enable the legal title to the property to be transferred to the plaintiff as the new trustee – whether a vesting order should be made under the Trustee Act 1925 (NSW)EQUITY – TRUSTS AND TRUSTEES – APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES – APPOINTMENT OF NEW TRUSTEES – UNDER POWER – where the appointor of the trust exercised his power under the trust deed to remove the defendant as trustee, and appoint the plaintiff in its place – where the plaintiff was not incorporated until the day after the resolution was made – whether the appointment of the plaintiff as trustee was valid and effectiveEQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY, LIEN AND REIMBURSEMENT – whether the defendant had a liability to reimburse Ira Plath for money he contributed to the purchase of the subject property, both at the time of the initial purchase and subsequently to discharge the mortgage over the property, as well as for renovation works undertaken to the property

EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – COMMON INTENTION – where siblings agreed that one party would buy a property in which the other would live with his family and ultimately acquire the property – where the occupier made payments and undertook improvements to the property – where the occupier did not acquire the property – where the other sibling took possession and sold the property – whether the agreement reached between the parties and their subsequent conduct support a finding that there was a common intention constructive trust – whether the net proceeds of sale of the property are held on a constructive trust for the occupier

TORTS – MISCELLANEOUS TORTS – DECEIT – where the proceedings arise out of a lease and sub-lease granted to Compass Marinas by Port of Brisbane Corporation – where Compass claims in deceit – where a letter to Compass from Port of Brisbane Corporation included the words, “I can assure you that it is a commercial rental and that our policy is to have all lessees in South East Queensland Boat Harbours charged a similar rental to each other” – whether a reasonable representee would have understood the letter as representing that the rents Compass was to pay under the lease and sub-lease were similar to those paid by other boat harbour tenants – whether the representation was false – whether the representation was made fraudulently – what was the subjective state of mind of the representor at the time the representation was made – when false statement made carelessly but not dishonestly or with conscious or reckless indifference to the truth – whether it was intended that the representation be acted upon – whether the fraud case was sufficiently put to the representorTRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – where the proceedings arise out of a lease and sub-lease granted to Compass Marinas by Port of Brisbane Corporation –– where Compass brings a claim under s 52 of the Trade Practices Act 1974 (Cth) – where a letter to Compass from Port of Brisbane Corporation included the words, “I can assure you that it is a commercial rental and that our policy is to have all lessees in South East Queensland Boat Harbours charged a similar rental to each other” – whether a reasonable representee would have understood the letter as representing that the rents Compass was to pay under the lease and sub-lease were similar to those paid by other boat harbour tenants – whether the representation was false – whether the representation was relied uponLIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – FRAUD AND DECEIT – where a claim in deceit was brought outside the six years limited by s 10 of the Limitation of Actions Act 1974 (Qld) – whether Compass discovered all elements of the cause of action (as opposed to particulars of loss) before the expiry of the limitation period within the meaning of s 38(1)(a) of the Limitations of Actions Act – whether the State fraudulently concealed Compass’s right of action within the meaning of s 38(1)(b) of the Limitation of Actions ActLIMITATION OF ACTIONS – GENERAL MATTERS – where Compass had six years to bring a claim under the Trade Practices Act 1974 (Cth) – when loss or damage sufferedESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – where the State claims in debt for unpaid rent and on a guarantee – where the defendants claim that the State is estopped from recovering rent in the amount claimed – estoppel based on representation of existing fact – distinction between common law estoppel and equitable estoppel – operation of common law estoppel – whether the representation was of a kind which could be the basis for an estoppel – whether the representation relied upon was sufficiently clear to found an estoppel – whether the State is estopped from denying any element of its cause of action – whether the representation was one capable of giving rise to an assumption or expectation as to legal rights

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN PRINCIPAL AND THIRD PERSONS – WHAT ACTS OF AGENT BIND PRINCIPAL – DISPOSITIONS BY FACTORS AND MERCANTILE AGENTS – defendant purchased the vessel from a third party – the vessel was returned to the third party for repairs – third party sold the vessel to the plaintiff – whether the third party was a mercantile agent – whether the mercantile agent was acting in the ordinary course of business – whether the plaintiff purchased the vessel in good faith

ESTOPPEL – ESTOPPEL BY CONDUCT – EQUITABLE ESTOPPEL GENERALLY – where a property at Hamilton (“the Property”) is registered in the name of Mr Terence Bridges, the deceased – where the applicant seeks a declaration that the Property is held on trust for him, and an order for transfer of its title to him – where the applicant claims an equitable estoppel in respect of the Property on the basis that he financially and materially supported the deceased over a 20 year period in reliance on the deceased’s verbal promise that he would leave the Property to the applicant – where the second defendants contend that s 59 of the Property Law Act 1974 precludes an equitable estoppel from arising because the promise was not in writing – whether the applicant has established a right to relief based on proprietary estoppelLIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – LAND – ADVERSE POSSESSION – WHAT AMOUNTS TO ADVERSE POSSESSION – GENERALLY – where the second defendants assert a right to the Property on the basis that their grandmother, Mrs Humphreys, acquired the Property by adverse possession and left it by will to their father, who in turn left it to them – where Mrs Humphreys occupied the Property with the permission of the deceased for a period spanning over 20 years, beginning in about June 1974 – where the second defendants contend that this arrangement should be characterised as a tenancy at will which was determined at the expiration of one year, such that the deceased’s title to the Property was extinguished in about June 1987 by virtue of ss 13 and 24(1) of the Limitation of Actions Act 1974 – where the applicant contends that Mrs Humphreys lived at the property with the consent of the deceased, so that time could not begin to run for the purposes of s 13 of the Limitations of Actions Act 1974 – where the applicant contends that any right Mrs Humphreys had arising out of adverse possession was a personal right which entitled her only to make an application to be registered – whether Mrs Humphreys was a licensee or a tenant at will – whether Mrs Humphreys, and consequently the second defendants, acquired the Property through adverse possession
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CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – Sentence manifestly excessive − fresh evidence and events occurring after sentence − whether fresh evidence should be admitted when evidence could have been obtained – whether the fresh evidence makes any difference to the outcome − whether error established – whether sentence is manifestly excessive

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – OVERRIDING PURPOSE OF AND OBLIGATIONS UNDER RULES OR ACTS REGULATING CIVIL PROCEEDINGS – where the applicant/appellant seeks orders requiring the respondent to comply with obligations pursuant to Uniform Civil Procedure Rules 1999 (Qld) and paragraph 16 of Practice Direction 3 of 2013 – where the parties agreed for the matter to be heard on the papers – whether the application should be granted

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT − SENTENCE – Reopening sentencing proceedings – whether “clear factual error of substance” − whether application to reopen sentence should be granted

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN GRANTED – where the appellant resided in the Cayman Islands for a time – where the respondent is a resident of Grand Cayman in the Cayman Islands – where the appellant and respondent were married – where they lived in the respondent’s apartment in the Cayman Islands and the appellant stored some of his property in a guest bedroom – where in August 2016 some of the appellant’s property was placed in a rented storage unit – where the rental on that storage unit was paid for by the respondent’s mother – where the appellant commenced proceedings for conversion and breach of a bailment condition – where the respondent filed a conditional notice of intention to defend and then applied for orders setting aside service of the claim and statement of claim or, alternatively, permanently staying the proceedings – where that application came before the learned primary judge who made orders on 26 June 2020 that the proceedings be permanently stayed – where the appellant challenges that order on a variety of grounds – whether there was error in staying the proceedings under r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld)APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where the learned primary judge considered whether r 127(2)(b) Uniform Civil Procedure Rules 1999 (Qld) was applicable – where, in doing so, the learned primary judge recorded a contention advanced by the respondent to the effect that when considering whether r 127(2)(b) was engaged, one relevant factor was whether the appellant would have obtained a grant of leave under r 126 if such an application had been made – whether the learned primary judge erred by taking into account whether it was unlikely that leave would have been granted, had it been applied for under r 126 Uniform Civil Procedure Rules 1999 (Qld)PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – APPEALS AS TO COSTS – OTHER MATTERS – where the learned primary judge ordered the permanent stay on 26 June 2020 – where the learned primary judge ordered the appellant to pay the costs of the proceedings below on 24 July 2020 – where, by separate application brought within Appeal No 7938 of 2020, the appellant has challenged the orders made on 24 July 2020 – whether the application should be granted

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where appellant convicted of various summary offences and sentenced to 16 months’ imprisonment, to be released on parole after serving 3 months – where appellant alleges that the sentence was excessive and that the Magistrate erred in: not affording him procedural fairness; not having regard to the principle of imprisonment as a sentence of last resort; and not preferring orders permitting a person to remain in the community for the purpose of rehabilitation – whether the sentence imposed was excessive

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where the Court dismissed the appeal although it disagreed with the reasoning of the primary judge – where neither party seeks an order for costs of the appeal, or of the proceeding in the Trial Division – whether the order for costs made by the trial judge should be set aside

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the applicant successfully applied to vary a scheme of partition proposed by statutory trustees in respect of property he owned with the respondent – where the scheme was varied in accordance with a proposal for a variation to the scheme made by the applicant prior to the hearing, as part of an offer by which the applicant would have foregone his right to an equality payment of $63,145 and an allowance of $42,500 for improvements he effected to the property – where the offer was refused by the respondent – where the respondent would have been better off by $53,628 if he had accepted the offer – whether the respondent’s refusal of the offer was unreasonable – whether the respondent should be ordered to pay the costs of the applicant on the indemnity basis from the day after it lapsed

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF DEFENCE COUNSEL – where the appellant was convicted of sexual offences against his daughter – where the appellant appeals against his convictions on the basis that there was a miscarriage of justice by the way in which his case was conducted – where the appellant argues that his then counsel and solicitor neglected to take full instructions from him and to consider all of the relevant and available material, particularly the record of his interview by police – whether the deficiencies in the preparation of the appellant’s defence could have affected the outcome – whether there was a miscarriage of justice

CIVIL – NEGLIGENCE – PERSONAL INJURY – PSYCHIATRIC INJURY – LIABILITY – ASSESSMENT OF DAMAGES – where plaintiff worked as a fire fighter with QFRS for 27 years – where he alleges he suffered psychiatric injury in the course of employment with the defendant- where the plaintiff alleges he suffered this injury at Slacks Greek fire incident in 2011 where people of Samoan origin including eight children lost their lives– where the plaintiff alleges at the night of the fire he was not adequately welfare checked by the defendant- where the plaintiff alleges that he was required to work for an excessive period – where the plaintiff is seeking damages for his injury as a result of defendant’s negligence

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION – CONTROL OF PROCEEDINGS – SEPARATE TRIALS AND ELECTIONS – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – JOINDER OF COUNTS AND DEFENDANTS – JOINT TRIAL – where the appellant was charged with one count of indecent treatment of a child under 12 and a second count of indecent treatment of a child under 16 – where after a trial the jury found the appellant not guilty on the first count and guilty on the second count – where the appellant was a masseur – where the complainants were two brothers who had been taken to the appellant’s premises for a massage – where the appellant submits that the two counts were improperly joined – where the learned judge in their ruling identified the following factors as showing that the appellant’s alleged behaviours were similar in each case: both complainants were boys, the offences were both alleged to occur on the appellant’s premises, they were alleged to occur during a massage and both offences were committed while the boys’ parents were absent – whether the learned judge erred in refusing the application for separate trialsCRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – GENERALLY – where the appellant gave evidence at trial – where in his own evidence the appellant neither admitted nor denied that he was gay – where the evidence of the two child complainants was that they perceived the appellant to be gay – where defence counsel put to the jury a theory that the complainants had fabricated their complaints out of embarrassment – where the appellant submits that a statement made by the prosecutor in his closing address about the appellant being gay was unfair and carried with it the risk of introducing prejudice and impermissibly enhancing the complainant’s credibility – whether the prosecutor’s statement rendered the trial unfair by its effect on the jury – whether a miscarriage of justice attended the trial