Dao v Dao [1990] QSC 50

( --~ '\ ' \ _./ 10 20 30 40 50 60 /~' ,, IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ~1- ~ No. 1588 of 1989 SC c 0)0So BEFORE MR. JUSTICE COOPER BRISBANE, 7 FEBRUARY 1990 REVISED COPIES ISSUED Courf Repo:ting Bureau Date,l?, / ,!;; /qO BETWEEN: (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of theChief Court Reporter,Court·Reporting Bureau.) PHUOC DAO Plaintiff -and- SANH DAO Defendant ORDER HIS HONOUR: The plaintiff has sought an order restraining the defendant from residing at the residence, the subject of this litigation, pending suit. The defendant has not resided in the residence since 1987. At the present time the residents in the home are the parties' aged mother, an aunt, and the plaintiff's son who cares for the mother with the aunt. Both the son and the aunt have given affidavits which have been read in support of the plaintiff's case. On the hearing of the application, the plaintiff relies on material wherein it was alleged that the defendant had in the past been abusive of the residents of the house and that Cau Giang fears that the defendant will attempt to pressure her to alter her evidence. The c :aunt. states that (, the occupants will be forced to leave the house because of fear of the defendant. The defendant has denied these allegations. He states that the mother and the aunt are free to stav and that he will make some arranqements for the-Govt. Printer, Qld. -1- 10 20 30 40 50 60 -- 1 of 4 -- mother's care. He says, however, the son should leave. On 31 March 1990 he must give up possession of the premises in which he conducts his restaurant business and says he will go on to social security in order to support himself at that time. He will be in financial need at that time and needs to 10 10 20 reside in the house. It is not possible on this application to determine where the truth lies. I am, however, satisfied that there is and has been real antagonism between members of the family. Indeed, the defendant has stated he feared breaches of the peace when he attempted to re-enter the premises in February 1989. The witness Cau Giang has deposed to real fear that she will be pressured. Whether that fear is justified or will be realised I do not know, however, no witness should be placed in a position of fear if the court 20 30 30 40 50 60 can avoid it. Further, I am not satisfied that proper arrangements can be made for the care of the mother who may herself have an interest in the house derived through the estate of her late son. I am satisfied that the interests of justice require, and that the balance of convenience favours, that the status quo b maintained. Although the defendant is paying rent and will be put to additional expense, he has agreed in th~ past,to remain away from the house, notwithstanding that he wishes·to reside ther. The plaintiff has offered the usual undertaking as to damages and should the defendant ultimately suffer damage in consequence of the granting of the injunction, should he succeed in the action, then he will have his remedy. If circumstances change in respect of the occupation of the house or of the circumstances of the defendant, then an application -2- 40 50 60 -- 2 of 4 -- 10 20 30 may be made to discharge the injunction. Upon the plaintiff giving the usual undertaking as to damages .I order that the defendant be restrained from entering upon premises at 31 Skinner Street, West End, pendin the trial of the within action or until earlier order. I order that the costs of each party to the application be reserved. The only other matters which are outstanding are orders in relation to the further trial of the action. I order that the trial of the action be adjourned to a date to be fixed. I order that the matter be listed for review before Master Horton Q.C. on Monday, 26 February 1990 at 9.30 a.m. I order that the costs of the trial of the action to date and the adjournment of each party be reserved. The only matter I wish to say again is that if there is a prospect, having regard to the financial circumstances of all of these clients, of resolving the matter, then the parties ought sensibly to take it, and I would ask that that be conveyed by counsel to their clients. MR. HAMWOOD: Certainly. 10 20 30 40 40 MR. FREERS: Yes. 50 50 -~6~0-+--·---------------------------------~ 60 -3- -- 3 of 4 -- 10 20 30 40 50 60 \-;,;,~ 1< <.; The only other matters which are outstanding are orders in relation to the further trial of the action. I order that the trial of the action be adjourned to a date to be fixed. I order that the matter be listed for review before Master Horton Q.C. on Monday, 26 February 1990 at 9.30 a.m. I order that the costs of the trial of the action to date and the adjournment of each party be reserved. The only matter I wish to say again is that if there is a prospect, having regard to the financial circumstances of all of these clients, of resolving the matter, then the parties ought sensibly to take it, and I would ask that that be conveyed by counsel to their clients. MR. HAMWOOD: Certainly. MR. FREERS: Yes. -Govt. Pd~ter, ')Id. -4- 10 20 30 40 50 60 -- 4 of 4 --