Bunnings Forest Products Proprietary Limited v Bullen

his Honour's orders was dismissed on 23 November 1995. Whilst it might be thought only the costs order made by Cooper J affected Mr Theo, the Full Court heard argument as to the findings of fact, and, in the result, held that no ground had been shown to overturn them. I am told that an application for special leave to the High Court is yet to be determined, but it seems to me that the prospects of leave being granted are negligible. On the application brought to Heerey J, his Honour held that the parties were issue estopped and made declarations giving effect to the findings of Cooper J. An order made in consequence was that trustees for sale be appointed. Whilst declaratory orders cannot be stayed (see Bunnings Forest Products Proprietary Limited v Bullen (1994) 54 FCR 342), the following orders here made might, if that is shown to be necessary. The properties in question are Mr and Mrs Theo's residence and a tenanted property. At least with respect to the taking of steps to sell their house property, a stay could be considered, depending however upon Mr Theo's prospects of successfully appealing the decision of Heerey J. Mr Theo's main point was that the order made was with respect to the whole property but that it had not been determined that the trustees were so entitled. This misunderstands the nature of the order, which is one to facilitate a sale, but which does not determine that the co-owner has no interest and, insofar as Mrs Theo or any other person made improvements to the properties after the transfer which has been held void, his Honour's order recognises that they might apply to have such a question determined. From Mr Theo's oral submissions I took it that he disputes the factual correctness of Cooper J's judgment. As I have said, however, I do not consider it to be at all likely that these findings will be interfered with. Nor does there appear to me to be reason to doubt Heerey J's application of them. In these circumstances, the application for stay will be dismissed with costs. I certify that this and the preceding two pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel. Associate Date: 2 September 1996 The applicant: In Person Counsel for the respondent: Mr P Hack Solicitors for the respondent: Australian Government Solicitor Solicitors for the Trustees for Sale: Bennett & Philp Date of Hearing: 2 September 1996 Place of Hearing: Brisbane Place of Judgment: Brisbane Date of Judgment: 2 September 1996