Ernest Day & Son Pty Ltd v Kinna [1992] QSC 409

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold \\ithout the \\'Titten authority of the Director, State Reporting Bureau.) REVISED COPiES ISSUED St<itc R81)C:iii1g Bureau Date f(, If( I Cfcl... C: SUPREME . COURT OF QUEENSLAND CIVIL JURISDICTION I c RYAN J WRIT No 356 of 1992 ERNEST DAY & SON PTY LTD Applicant and JOHN CECIL KINNA Respondent c BRISBANE · .. DATE 04/11/92 JUDGMENT 1 -- 1 of 4 -- ----------------, 041192 HIS HONOUR: The plaintiff has applied for summary judgment against the resporident in the sum of $290,000. On 21 .January 1992 the applicant claimed in an application in the Federal Court of Australia, Queensland District Registry, the sum of $290,000 as moneys had and received by the respondent to the use of the applicant, and further or alt~rnatively, damages for breach of trust. It claimed further damages for breach of trust, or as damages consequent upon the failure of the respondent to pay to the applicant the sum of $290,000 on 11 December 1990, or, in the alternative, damages by way of interest upon the sum of $290,000 from 11 December 1990 until judgment or payment. The statement of claim filed in the Federal Court alleges that Palm Springs Village Pty Ltd (the owner) was the registered proprietor of certain land; that the owner was indebted to the applicant in the sum of not less than $400,QOO and that the applicant was the holder of a registered second mortgage over the land securing that indebtedness. Prior to 1 June 1990 the owner caused to be constructed on the land a building for use as a retirement village, and the respondent, a solicitor of the Supreme Court of New South Wales, acted on behalf of the owner in applying to the Registrar of Retirement Villages for approval of the operation of the scheme for a retirement village on the land. On 1 June 1990 approval was gran~ed with a condition that all interest free loans by prospective residents were to be deposited into a trust account of Johri C Kinna & Associates and held it in until such time as the conditions contained in JUDGMENT 2 10 20 0 0 30 0 40 CJ 50 60 -- 2 of 4 -- 041192 clause 3 of the lease document had been satisfied, whereupon the moneys might be applied in the terms of that clause. It is alleged that residents made payments to the respondent pursuant to clause 3 in an amount not less than $400,000. On 11 December 1990 certain moneys were owing by the .owner to the holder of the first registered mortgage over the land. The respondent failed to pay to the applicant the sum of $400,000 in reduction of the amounts owing by the owner to the c respondent. The owner has since paid or caused to be paid to the applicant the sum of $110,000, but has failed to pay the sum of $290,000. c The proceedings have been transferred to the Supreme Court of Queensland pursuant to section 5(4) of the Jurisdiction of. Court (Cross-vesting) Act 0987) of the Commonwealth. An appearance was entered for the defendant on.15 May 1992. At c the hearing before me it was accepted by counsel for the applicant that there was a triable issue as to $250,000 of the amount claimed and therefore the applicant is seeking judgment c=. only in the sum of $40,000. Extensive written submissions were presented by counsel for the parties. I have examined these but find it unnecessary to try to recite or unravel the very complex issues of fact and law which they raise. I am not satisfied'·that there is no real question of fact to be tried having r~gard in particular to conflicts in the affidavits of Mrs ~harenou and Mr Kinna. There is,_in particular, a question ~s to the factual basis of any release from, acquiescence in, or consent to a breach of JUDGMENT 3 10 20 30 40 50 I 60 . I -- 3 of 4 -- 041192 trust, or an estoppel. I am of the view that the extensive complexity o'f the matters of law and of argument thereon warrant a full hearing and such a hearing will, in any event, have to take place in relation to the claim for $250,000. It does not appear clearly that the issues in relation to the $40i000 and the $250,000 are so distinct that it would be right to resolve them in separate proceedings. Accordingly, I refuse the application for summary judgment. I think the circumstances of this case, and in particular, that ·• it ':i.s. :an action against a solicitor for breach of trust, warrant the action being certified for speedy trial. I order that the · .. j 1 10 20 ~~ costs of the application be reserved. (J I include liberty to apply as part of the order. 30 0 40 0 50 60 JUDGMENT 4 -- 4 of 4 --