Bradley v Bradley [2023] QSC 69

SUPREME COURT OF QUEENSLAND CITATION: Bradley v Bradley & another [2023] QSC 69 PARTIES: BRADLEY, William Francis (applicant) v BRADLEY, Garry Wayne (first respondent) BRADLEY, Joseph Henry (second respondent) BRADLEY, Noelene Grace (third respondent) FILE NO/S: BS No 13083 of 2010 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 5 April 2023 DELIVERED AT: Brisbane HEARING DATE: 31 March 2023 JUDGE: Brown J ORDER: 1. The application filed 15 December 2021 (CFI 44) be declared ineffectual pursuant to rule 371(2) of the Uniform Civil Procedure Rules 1999 (Qld). 2. The applicant has leave to proceed limited to the filing of an application for further directions in respect of steps to be taken with respect to the order of 25 November 2016. 3. The second respondent has leave to proceed to re-list the application dated 26 June 2019. 4. The matter be listed for submissions as to costs and directions in the week of 8 May 2023 at 9:15am on a date to be agreed between the parties, failing which it will be listed by Brown J. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the second respondent applied for an order that the originating application be dismissed for want of prosecution and for an application filed by the applicant to be declared ineffectual and set aside pursuant to rule 371 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant had not applied for -- 1 of 15 -- 2 leave to proceed under rule 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) – whether a step had been taken in the proceeding since 2018 – whether leave to proceed should be granted to the applicant – whether leave to proceed should be granted to the applicant on a limited basis only COUNSEL: D Kelly for the applicant R Cameron for the first respondent A Fraser for the second respondent SOLICITORS: Biggs Fitzgerald Pike for the applicant Maguire Barnes Family Lawyers for the first respondent Collett Law for the second respondent [1] The present application is part of a long and sorry saga that has played out for many years between three brothers, William, Joseph and Garry Bradley. The issue is whether the present proceedings should be brought to an end or allowed to proceed. For ease of reference and with no disrespect I will refer to the brothers by their first names. [2] The second respondent, Joseph, applied for an order that an application filed by the applicant, William, on 15 December 2021 be declared ineffectual on the basis that no step had been taken in the proceeding for more than two years prior to the filing of the application and no order to proceed had been obtained pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Joseph also seeks an order that the proceedings be dismissed for want of prosecution. William opposed Joseph’s application on the basis there had been a step taken in the proceeding within the two years prior to the filing of the application. On the day of the hearing, William sought in the alternative an order that the filing of the application was effectual under r 371(2)(d) of the UCPR and an order nunc pro tunc under r 389(2) of the UCPR permitting the application filed on 15 December 2021 to proceed. Garry supports William’s position. [3] William and Garry are frustrated that they are yet to receive any distribution under the trust which is in place following the passing of their father and then their mother. Joseph is the trustee and both William and Garry blame him for the delay. Joseph contends these proceedings are hindering the finalisation and distribution of the trust. [4] The Court must determine: -- 2 of 15 -- 3 (a) whether the applicant required an order under r 389(2) before filing the application of 15 December 2021; and (b) whether the Court should dismiss the proceedings or give leave to the applicant to proceed and if so, to what extent. Background facts [5] The brothers’ father passed away in 1989. He left a sizeable Estate of some 800 acres with a dairy farming operation at Dayboro. It appears that the brothers’ father’s hope was that his sons could work together in partnership to continue to operate the dairy farm, with their mother to remain on the property for her life, and he created various trusts to this effect. The administration of the Estate was largely finalised in about April 1990. At that time the beneficial ownership of the real estate farm property situated at Dayboro, together with all livestock and chattels upon that land, transferred to the trustees of the trust subject to the life interest of their mother. Litigation in this Court commenced in the 1990s. As a consequence of the litigation, Joseph and his mother were, until her death, trustees of the testamentary trust created by the father. Joseph remains the trustee. Joseph has remained on the dairy farm and has continued to operate it. Garry also resides on the property. [6] In 2009, the brothers’ mother passed away. Joseph and Garry are executors of her will. [7] The passing of their mother appeared to prompt the filing of an originating application by William on 3 December 2010 for the appointment of statutory trustees (Originating Application) for the sale of properties the subject of the trust. On 19 May 2011, William filed an application alleging various breaches of duty by Joseph and seeking Joseph’s removal as trustee (May 2011 Application). That application is outside the terms of the Originating Application and would normally require leave of the Court. However, no point appears to have been taken in relation to that by the respondents. Orders were made by Mullins J in relation to the May 2011 Application on 31 May 2011 and by Philippides J by consent on 21 October 2011 to progress and list the applications for trial. [8] Despite the years that have passed, and the various orders that have been made by this Court to advance the matter, neither the Originating Application nor the May 2011 -- 3 of 15 -- 4 Application have been prosecuted to trial or otherwise resolved, and the trust has not been distributed. A trial commenced on 31 January 2012 but was subsequently adjourned to the registry. Directions were made to define the issues between the parties in 2013 but nothing took place in the proceedings for just short of two years, when an application for directions was filed by William in December 2015. There were, however, attempts by the brothers to reach agreement on the terms of the final distribution of the trust. [9] Significantly, William, Joseph and Garry agreed on steps to be taken to bring about an assessment of assets and liabilities to enable the vesting of the trust and distribution of the trust assets. Those steps were the subject of a consent order by Daubney J on 25 November 2016 (Order of Daubney J) following the filing of a further application by William for directions. [10] Steps were taken in accordance with the Order of Daubney J until 2018, including by Joseph and Garry identifying properties they wished to appropriate. William did not wish to appropriate any properties. Those properties which were not to be appropriated have been sold as provided in the Order of Daubney J, with the last property having been sold on 27 August 2018. A statement of assets and liabilities was prepared and objections were made by Garry and William, to which Joseph provided his preliminary response. Although contentious, no party listed the issue of contested assets and liabilities for determination by the Court within seven days of Joseph’s response as provided for in the Order of Daubney J. Although valuations were prepared, disputes arose between William and Joseph as to the updating of those valuations and the obtaining of new ones. There are also disputes as to employee entitlements claimed by Joseph and the treatment of loans including by Joseph and his wife to the trust. [11] There is evidence of continued correspondence between the brothers’ solicitors in 2018, 2019 and 2020. [12] In June 2019, in the context of the present proceeding, Joseph made an application for directions under s 96 of the Trusts Act 1973 (Qld) (the Trusts Act) as to the distribution of the trust. That application was responded to in correspondence from Garry and William’s solicitors which raised a number of issues with the statement of assets and liabilities of the trust in the application, threatened Joseph’s removal as -- 4 of 15 -- 5 trustee and executor and raised issues of conflict of interest. The proceeding was adjourned by consent to be re-listed on seven days’ notice by order dated 4 July 2019. Joseph’s counsel, who was not involved in the proceeding at the time, raised a question as to whether there may have been an error in the reference to “proceeding” rather than “application”. While there is substance in that submission, I must act on the basis of the order as it stands. Further rounds of correspondence followed. [13] On 30 April 2021, Garry’s solicitors issued a notice of intention to proceed but no step was taken. [14] On 15 December 2021, an application for the removal of Joseph as executor and trustee, and for William to be appointed as executor and trustee, was filed by William (December 2021 Application). That application resulted in the present application being filed by Joseph on 22 February 2022. [15] Directions were made by this Court on 1 June 2022. [16] Despite the directions made it was only at the hearing before me that William filed an application declaring the December 2021 Application to be effectual and for an order nunc pro tunc pursuant to r 389(2) of the UCPR permitting that application to be filed. He did not, however, concede that no step had been taken in the proceeding in the context of the nature of the proceeding and Order of Daubney J. Garry only provided his submissions on the day of the hearing. [17] During the hearing, William instructed his counsel that he no longer wished to be appointed executor and trustee but sought the alternative appointment of a statutory trustee. That was not, however, part of the relief sought in the December 2021 Application. William’s position raised a question as to the utility of the Court making declarations about whether or not the December 2021 Application was effectual. I adjourned the hearing to allow counsel to take instructions as to their positions given part of the relief sought by Joseph and William was in relation to the December 2021 Application. William’s counsel then stated that his instructions were that William did not wish to proceed with the December 2021 Application but did wish to obtain leave to proceed to seek the appointment of a statutory trustee. He also appeared to wish to re-enliven the order of Daubney J to resolve points of dispute and bring about the distribution of the Estate. -- 5 of 15 -- 6 [18] Since the directions made on 1 June 2022, William, Garry and Joseph have all been engaging in negotiations as to a potential sale of the property, although those negotiations have not come to fruition. That is not relevant to the proceeding but has some relevance to the exercise of the Court’s discretion to dismiss the proceedings for want of prosecution or give leave to proceed. Was a step taken in the proceeding? [19] Notwithstanding that William filed an application for leave to proceed or nunc pro tunc permitting the filing of the December 2021 Application, and that his Counsel subsequently clarified his client’s instructions that he wished to have leave to proceed to apply to appoint a statutory trustee, there was no express concession that there had been no step in the proceeding for two years from the time the last step was taken. It is necessary to consider whether any step was taken in the proceeding in the two years prior to the filing of the December 2021 Application. [20] Under r 389(2) of the UCPR, if no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the Court. Rule 371(2)(c) and (d) of the UCPR provides that the Court may declare a step ineffectual or effectual if there has been a failure to comply with the rules. [21] As Bond J pointed out in Ure v Robertson,1 the last step contemplated must be the last effectual step, namely that it was regular when taken or has since been declared to be so under the UCPR. A step in the proceeding must progress the action towards a conclusion, but not necessarily be a step required by the UCPR.2 [22] According to Joseph, no step has been taken in the proceeding since 27 August 2018, when the last property was sold in accordance with order 6 of the Order of Daubney J. This is notwithstanding that Joseph himself filed an application for directions pursuant to s 96 of the Trusts Act which was subsequently adjourned on 4 July 2019. [23] William contended that items 64, 66, 72 and 76 of the chronology set out by his solicitor and referred to in his counsel’s submissions were steps in the proceeding to bring the action to a conclusion in the sense discussed by the Court of Appeal in 1 (2017) 2 Qd R 566, 577 [39]. 2 Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2013] 2 Qd R 202, 203–204 [4] (Margaret McMurdo P), 205 [8] (Fraser JA), 212 [48] (Peter Lyons J). -- 6 of 15 -- 7 Artahs Pty Ltd v Gall Standfield & Smith (a firm) (Artahs)3, namely a step taken towards the relief sought in a proceeding or to progress a proceeding towards a conclusion,4 though not necessarily a step required by the UCPR5. Items 64, 66 and 76 are correspondence from the parties’ solicitors which, respectively, proposed a mediation, notified of Garry’s support for William to be appointed as executor and trustee, and put forward a proposal by Joseph as to the finalisation of the Estate. That correspondence cannot properly be characterised as progressing the action towards a conclusion. A letter proposing mediation is not regarded as a step in a proceeding when no such mediation occurred.6 Nor is correspondence about or supporting an application by William to be appointed as trustee a step in the proceeding, given it is analogous to the issuing of a notice of intention to proceed which is not regarded as a step in a proceeding.7 As to correspondence with respect to the finalisation of the Estate, that was correspondence consistent with Joseph progressing the finalisation of the Estate and distribution of the trust as trustee but is not a step progressing the proceeding to a conclusion, notwithstanding the finalisation and distribution of the trust would have an effect on these proceedings, particularly when Joseph’s solicitors pointed out this proceeding had gone stale and was stayed long before. [24] William also relies upon a report of Vincents Accountants delivered by William on 29 June 2021 by email. It addressed the capital gains tax consequences of William replacing Joseph as executor and trustee. It is not a report which was required to be disclosed in the proceeding but rather was disclosed in anticipation of the application filed on 15 December 2021 and was not relevant to the proceeding as it stood. If the last step taken was on 27 August 2018, the delivery of the report would have been ineffectual in any event.8 [25] I am satisfied that there has not been a step in the proceeding since 4 July 2019 at the latest, when the Court adjourned Joseph’s application pursuant to s 96 of the Trusts Act. 3 [2013] 2 Qd R 202. 4 Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2013] 2 Qd R 202, 203–204 [4] (Margaret McMurdo P). 5 Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2013] 2 Qd R 202, 211–212 [45]–[48] (Peter Lyons J). 6 Rabvue Pty Ltd v Malcolm Douglas Consultants Pty Ltd [2010] QDC 150. 7 Way v Primo Rossi Pty Ltd [2018] QCA 203. 8 Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2013] 2 Qd R 202, 203–204 [4] (Margaret McMurdo P) being analogous to the delivery of the medical report when an application was required under r 389(2) of UCPR. -- 7 of 15 -- 8 [26] While the application of 26 June 2019 by Joseph for directions may have been regarded as a step, given the order of 4 July 2019 merely adjourned the proceeding and gave the parties seven days to re-list the matter, which did not occur, neither progressed the action towards a conclusion. The circumstance is analogous to the order made in the context of case flow management in Artahs which was not then acted upon by any party.9 Prior to that, the last effectual step taken in the proceeding to progress it to a conclusion was the sale of the property on 27 August 2018. [27] The second respondent’s analysis as to other matters said to constitute a step in the proceeding, which were set out in a chronology provided by the second respondent’s counsel in paragraphs [18]–[19] of his submissions, although not ultimately relied upon by William as a relevant step in the proceeding in the hearing before me, correctly identifies that none of the matters raised constituted a step in the proceeding. [28] On any view, no step was taken for two years prior to the filing of the December 2021 Application. I therefore declare the filing of the December 2021 Application ineffectual. Should leave to proceed be granted? [29] William, therefore, does require an order granting leave to proceed. The question is, proceed with what. [30] It appears that William now seeks the appointment of a statutory trustee for the sale of the remaining property. However, his argument focussed more on the fact that the Order of Daubney J has not been vacated and provides a mechanism to resolve the issues in relation to the Estate and trust including provision in order 13 to list the issue of contested assets and liabilities. His application is supported by Garry. [31] In that regard, it is salient that on 1 June 2022 Kelly J made directions as to the filing of material and submissions for the December 2021 Application, yet William only articulated the basis upon which he wished to proceed at the hearing before me. Joseph filed affidavit material in support and identified that he could not progress the vesting of the trust while the allegations raised by the May 2011 Application were 9 Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2013] 2 Qd R 202, 203–204 [4] (Margaret McMurdo P), 205 [8] (Fraser JA). -- 8 of 15 -- 9 still potentially extant. William did, however, file an affidavit in response raising issues as to Joseph’s progress of the vesting of the trust or rather lack thereof. That is also the primary complaint of Garry, who did not file any affidavit evidence and only provided submissions on the day of the hearing before me. Joseph filed an affidavit addressing the matters raised by William. [32] It is uncontroversial that the relevant factors as to whether leave to proceed should be granted are set out in Tyler v Custom Credit Corp Ltd.10 The factors in considering whether the proceeding should be dismissed for want of prosecution are much the same as in respect of an application for leave to proceed and require the exercise of discretion.11 [33] The proceeding has been characterised by lengthy periods of delay in 2013–2015. Progress was made after the Order of Dalton J on 29 January 2016 by consent with respect to the obtaining of valuations and the Order of Daubney J but little has been done to bring about a resolution of the proceedings since 2018. In particular, no party listed the issue of contested assets and liabilities for determination within seven days of receiving the executor’s response to a submission on parties’ objections, as was required by order 13 of the Order of Daubney J. [34] While both William and Garry seek to attribute the delay to Joseph, that is not borne out by the evidence. It is evident that William has taken no steps to prosecute the proceeding in which he is the applicant. In particular, William does not address his own delay in progressing the Originating Application or May 2011 Application and provides no satisfactory explanation for that delay. Garry does not contend he has taken any steps. [35] What is evident from the material relied upon, which includes a myriad of correspondence between the three parties, is that rather than prosecute those matters to trial in accordance with directions made by this Court on 31 May 2011, 21 October 2011, 25 September 2013 and 20 December 2013, the brothers sought to resolve the matter by taking steps to advance the vesting of the trust. William sought directions by an application filed 17 December 2015 as to the valuation of assets pursuant to which an order was made on 29 January 2016 by Dalton J. There was then an 10 [2000] QCA 178, [2] (Atkinson J, with whom McMurdo P and McPherson JA agreed). 11 Ure v Robertson (2017) 2 Qd R 566, 576 [28], 580 [57] (Bond J). -- 9 of 15 -- 10 application for further directions with respect to the finalisation of the trust made on 16 November 2016 which resulted in the Order of Daubney J being made by consent on 25 November 2016. In that respect, the brothers reached a consent order to bring about a resolution of the disputes and the vesting and distribution of the trust and the Estate. Although the parties progressed those directions some way, disputes then emerged as to the value of the trust assets and liabilities, including whether the valuations needed to be updated and by whom, and claims were made by Joseph for employee entitlements and by Joseph and his wife for loans. Joseph sought to progress the matter by filing the application for directions in June 2019 but again disputes were raised as to the statements of assets and liabilities. [36] Rather than re-listing the matter for determination of contested assets and liabilities of the trust, as was required by order 13 of the Order of Daubney J, or re-listing the application of 26 June 2019 for directions, the parties have exchanged rounds of correspondence fighting about various matters, including whether valuations needed to be updated and who should carry out those valuations as well as threats to seek Joseph’s removal as trustee. There have been proposals particularly by Joseph and Garry to resolve the disputes including by mediation which have not come to fruition. [37] Joseph appeared to take the view that he would seek to finalise the trust for distribution once the proceedings had gone stale and were stayed under r 389 of the UCPR, as his solicitors had notified William and Garry’s solicitors on 9 July 2021. [38] In terms of the progress pursuant to the Order of Daubney J, it is evident from the correspondence that all parties are guilty of delay in that regard, given the disputes the subject of correspondence interspersed by inaction. However, given Joseph’s role as executor and trustee he should have also taken a more proactive role in advancing the order to bring about the distribution of the trust and advancing the application for directions. The effect of r 5 of the UCPR seems to have escaped all of the brothers and their legal representatives. [39] As to the prospects of the action, William contends that Joseph must distribute the Estate so the ultimate goal of William must be successful. That does not go to the prospects of success in the proceeding and with respect is illogical. While there has been unquestionable delay in this matter, it has been the result of the brothers’ constant disputes and failure to take action to resolve those disputes. The delay cannot -- 10 of 15 -- 11 simply be attributed to Joseph and there is no reason to think that William replacing Joseph would make any difference to its resolution given the history between the brothers. Nor would the appointment of a statutory trustee for the sale of the properties Garry and Joseph previously identified they wished to retain, albeit that person would be impartial. [40] There is little evidence to support the necessity of the appointment of a statutory trustee and its prospects of success. The properties that Garry and Joseph did not want to be transmitted to them have been sold. It is presently contemplated that an order for their appropriation will be sought if it cannot be agreed between William, Garry and Joseph as beneficiaries. That possibility is not rejected by William. Although the first and second respondent have, in accordance with the Order of Daubney J, indicated that they wished to appropriate certain property, Mr Kelly, counsel for the applicant, conceded that it may be that the property identified by William and Joseph will be able to be appropriated such that the appointment of a statutory trustee may not be necessary, or that the brothers will be able to agree to the sale of the property which they had all been open to in recent negotiations. [41] Further, the brothers have been exploring the possibility that the property which remains may at least in part still be sold in light of interested buyers having approached them. The evidence shows that there has been a level of co-operation between them in that regard and does not demonstrate that Joseph has been obstructionist in his approach. [42] Even if these proceedings were dismissed, that would not prevent an application to appoint a statutory trustee from being made in the future if in fact it is legally open to the parties.12 Moreover, the appointment of a statutory trustee would only facilitate the sale and will not otherwise progress the vesting and distribution of the trust assets, which is the real point of contention between the parties. There would be no significant prejudice if the originating proceeding were not permitted to proceed. [43] As to the alleged breaches of trust complained of in the May 2011 Application, while William’s counsel contended that those matters would be relied upon in seeking to advance a case for the appointment of a statutory trustee, he did not seek to advance 12 Joseph contends this is questionable on the authorities. -- 11 of 15 -- 12 submissions demonstrating William’s prospects of success in relation to the allegations made. The allegations the subject of the May 2011 Application date back as far as 1992. A beneficiary has a time limitation of 6 years to recover trust property or in respect of a breach of trust, in the absence of fraudulent conduct.13 In respect of those alleged breaches, dismissal of the proceedings will in all likelihood result in that aspect of the proceedings being brought to an end, as time will have accrued. It is plain while the allegations in the May 2011 Application have been raised from time to time they have not been pursued and have been overtaken by the January 2016 and November 2016 orders consented to by the brothers. [44] To the extent that William submits that an application in the same form can be filed immediately, he refers to the application for removal of Joseph as executor and trustee which is not ultimately the step which he identified as the one he wished to pursue at the hearing. It is unlikely such an application would be precluded in the future, however, in all likelihood the matters in the May 2011 Application could not be raised in support of such an application. [45] Garry does not advance a case in support of the prospects of the relief sought in the Originating Application or the May 2011 Application. His proposition is that if the proceedings are dismissed for want of prosecution, the administration of the Estate is unlikely to be concluded expeditiously. He further submits that the circumstances are such that Joseph’s removal as executor and trustee is warranted given the delays that have occurred demonstrate he is in breach of his undertaking to the Court that he would well and faithfully administer the Estate. Garry challenges Joseph’s assertion that these proceedings are delaying his ability to vest the trust pursuant to the terms of the Will because he appears to be far from motivated to finalise the Estate and distribute the corpus amongst the beneficiaries. [46] The evidence does not demonstrate that William has significant prospects of success in either obtaining orders for the appointment of a statutory trustee or the relief sought in the May 2011 Application. [47] As I have said, William and Garry’s real complaint lies in Joseph’s failure to finalise the distribution of the Estate amongst the beneficiaries since the Order of Daubney J, 13 Limitation of Actions Act 1974 (Qld) s 27. -- 12 of 15 -- 13 in circumstances where Joseph lives on one of the trust assets and has been enjoying the income of the Estate, and how the assets and liabilities of the trust should be assessed. [48] There would be prejudice to Joseph if the May 2011 Application was allowed to proceed given the time that has passed. I also accept that the allegations made in the May 2011 Application inhibit Joseph’s ability to finalise the Estate to some extent. [49] While Joseph does not point to specific prejudice, he does point to the passing of time and the effect of delay on evidence as discussed in Brisbane South Regional Health Authority v Taylor (Taylor)14. To the extent that there are alleged breaches of duty by Joseph dating back as far as 1992, I accept that in those circumstances there is some prejudice in the sense discussed by McHugh J in Taylor. I therefore do not accept William’s submission that the only prejudice would be one of costs. [50] While the dismissal of the May 2011 Application would in all likelihood preclude further action against Joseph in relation to those breaches, it would, as Joseph’s counsel says, still be open to William and Garry to seek Joseph’s removal as executor and trustee, although seeking to pursue the matters in the May 2011 Application would be an abuse of process. [51] William and Garry contend that dismissing the proceeding would result in duplication because material filed over the years in this proceeding would still be relevant. Their submissions were largely made at a level of generality and were unpersuasive given the little progress that has been made over the years in the proceedings and the time that has passed are likely to mean that the material filed is outdated and has been overtaken by subsequent events. [52] William’s counsel particularly contended that the Order of Daubney J already provides a framework for the contest as to assets and liabilities to be heard. There is something to be said for the fact that the parties should be held to the order which they agreed to bring about a distribution of the trust, under which steps were taken. While any proposed order would need to be updated in light of events that have occurred since then it continues to provide a relevant framework for the finalisation and distribution of the trust and Estate. 14 (1996) 186 CLR 541. -- 13 of 15 -- 14 [53] There is, however, little evidence that Joseph himself has taken action to address that difficulty, having not pursued the previous application for directions under s 96 of the Trusts Act, albeit he was met with opposition from Garry and William due to various disputes regarding the statement of assets and liabilities. [54] When I raised with Joseph’s counsel, Mr Fraser, the concern that the matter has not been progressed by Joseph, Mr Fraser obtained instructions to provide an undertaking to the Court to make an application for directions within 21 days of the dismissal of the proceedings as a condition of the proceedings being dismissed. William and Garry would as beneficiaries have a right to be heard at such an application and raise the points of contest, particularly as to claimed entitlements of Joseph and the proper approach to valuation given the time that has passed. [55] While that proposal has merit, I consider that given the matter has evolved within the proceeding such that the real dispute relates to the delay in the finalisation of the trust so that the assets may be distributed, how that may be facilitated and the assets and liabilities of the trust valued, the orders already made by the Court to that end should be preserved albeit they need to be updated. The statement of assets and liabilities has continued to be a live issue of dispute between the brothers. The Originating Application and May 2011 Application however should not be able to remain extant to be used as a Damocles over Joseph’s head when neither matter was progressed to trial contrary to the Court’s directions and were overtaken by the Orders made on 29 January 2016 with respect to valuations and 25 November 2016 with respect to the finalisation of the trust. [56] I raised with counsel the question of whether I could make a limited order to proceed. I have determined that I should make an order limiting leave to proceed to the seeking of an extension of time for compliance with the Order of Daubney J and the re-listing of the application for directions made pursuant to s 96 of the Trusts Act. I was referred by Mr Fraser, Joseph’s counsel, to the decision of Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Limited15, where Chesterman J limited the scope of the leave to proceed to certain claims. 15 [1999] QSC 372. -- 14 of 15 -- 15 [57] The Order of Daubney J provided a framework for the finalisation and distribution of the trust as agreed by the beneficiaries and trustee. While William’s is largely responsible for the delay in progressing the Originating Application and May 2011 Application, all parties are responsible for the delay in progressing the steps agreed to and which were the subject of the Order of Daubney J (with no party listing the matter for the resolution of contested assets and liabilities pursuant to paragraph 13 of the Order of Daubney J). [58] The appropriate order is to limit leave to proceed to the filing of further directions in respect of the Order of Daubney J and to the re-listing of the application filed on 26 June 2019. While Joseph could seek directions as trustee and executor under s 96 of the Trusts Act, given the history of the matter it would be relevant for the Court in providing directions to have regard to the steps agreed by the beneficiaries of the trust and Estate and the orders which were complied with in determining how to progress the matter, it is appropriate to leave open that option. Joseph is not, however, bound to make such an application for directions only in the context of these proceedings. There is no real prejudice to the parties if leave to proceed is limited in the way I have proposed and where I have extended it to the s 96 application of Joseph. [59] The orders of the Court will therefore be that: 1. The application filed 15 December 2021 (CFI 44) be declared ineffectual pursuant to rule 371(2) of the Uniform Civil Procedure Rules 1999 (Qld). 2. The applicant has leave to proceed limited to the filing of an application for further directions in respect of steps to be taken with respect to the order of 25 November 2016. 3. The second respondent has leave to proceed to re-list the application dated 26 June 2019. [60] I propose that directions be made providing for the applicant to file a statement of facts, issues and contentions in respect of the most recent statement of assets and liabilities of the Estate, for the respondents to provide a statement of material facts, issues and contentions in response, and for further directions to progress the matter to hearing. I will hear the parties as to the appropriate form of such directions and costs on a date to be agreed in the week of 8 May 2023 at 9:15am. -- 15 of 15 --