Nolan & Ors v Warne [2001] QCA 537

Nolan & Ors v Warne [2001] QCA 537 (30 November 2001)

SUPREME COURT OF QUEENSLAND

CITATION:

Nolan & Ors v Warne [2001] QCA 537

PARTIES:

PATRICK NOLAN and CYNTHIA MARGARET NOLAN (on their own behalf and as trustees of the P S Nolan Family Trust)

(first plaintiff by counterclaim/first appellant)

P S AND C M NOLAN & CO (a firm)

(second plaintiff by counterclaim/second appellant)

NOLAN & CO (a firm)

(third plaintiff by counterclaim/third appellant)

v

MARIA KATHLEEN WARNE

(defendant by counterclaim/respondent)

FILE NO/S:

Appeal No 3930 of 2001

SC No 2394 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 November 2001

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2001

JUDGES:

McPherson JA, Mackenzie and Mullins JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - CONSIDERATIONS UPON WHICH COURT EXERCISES DISCRETION - FUTILITY OF REMEDY - where appellants sought inter alia a mandatory order or injunction that the respondent remove a levy bank from her land - whether the trial Judge should have ordered the injunction - where, by the time of the appeal, the levy bank had in fact been removed

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - COSTS - where the appellants knew that the levy bank had been removed - whether the appellants should pay the respondent's costs of and incidental to the appeal

Corbett v Pallas (1995) Aust Torts R 81-329, considered

Gartner v Kidman [1962] HCA 27; (1962) 108 CLR 12, applied

Golden Casket Art Union Office, Re [1994] QCA 480; [1995] 2 Qd R 346, considered

Kidman v Page [1959] Qd R 53, considered

R v Gold Coast City Council, ex parte Raysun Pty Ltd [1971] QWN 13, considered

Scott v Shepherd (1773) 2 W Bl 892; [1746] EngR 121; 96 ER 525, considered

COUNSEL:

E J Lennon QC for the appellants

J C Bell QC, with J McKenna, for the respondent

SOLICITORS:

Gadens Lawyers for the appellants

McCullough Robertson for the respondent