Colless v Gayler Cleland Towne & Ors [2004] QSC 246

SUPREME COURT OF QUEENSLAND CITATION: Colless v Gayler Cleland Towne & Ors [2004] QSC 246 PARTIES: WILLIAM COLLESS (Plaintiff) v GAYLER CLELAND TOWNE (First Defendant) MACDONNELLS (Second Defendant) FARRELLYS (Third Defendant) FILE NO/S: 39 of 1995 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 1 July 2004 DELIVERED AT: Cairns HEARING DATE: 20 June 2004 JUDGE: Jones J ORDER: Susan Gail Colless, as Executor and Trustee of the Estate of William Colless be substituted as plaintiff in these proceedings. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE QUEENSLAND – PRACTICE UNDER RULES OF COURT PARTIES– where application filed pursuant to UCPR r 72 (2) for the substitution of the plaintiff party- where substitution made necessary due to plaintiff’s death – whether trustee personal representative of a deceased party may be substituted as the plaintiff in the proceedings COUNSEL: Application heard without oral argument SOLICITORS: Murphy Schmidt Solicitors for the plaintiff Lindsay Duffy & Co for the first, second and third defendants -- 1 of 2 -- 2 [1] This is an application pursuant to r 72(2) of the Uniform Civil Procedure Rules (“UCPR”) for the substitution of the plaintiff in these proceedings. [2] The application is made necessary because of the plaintiff’s death by drowning on 6 February 2004 as appears from the copy Death Certificate (Ex MJTC-01). By his will dated 18 June 2002, the plaintiff appointed his wife Susan Gail Colless to be trustee of his estate. [3] Rule 72(2) of UCPR provides expressly that a trustee or personal representative of a deceased party may be substituted as a party in the action. [4] I am satisfied in all the circumstances that it is appropriate that the deceased plaintiff’s personal representative be appointed in the circumstances of this case and I so order. Order: 1. Susan Gail Colless, as Executor and Trustee of the Estate of William Colless be substituted as plaintiff in these proceedings. -- 2 of 2 --