Mulherin as trustee for The HD Mulherin Family Trust v Quinn Villages P/L

[2007] QSC 231

Supreme Court of Queensland

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Interrogate

Catchwords

1. Equity
2. › Equitable Remedies
3. › Account
4. › Discretion to order account
5. › Whether account premature where expert accounting underway and joint venture assets unrealised
6. › Whether plaintiff must establish entitlement to moneys before account ordered
1. Equity
2. › Equitable Remedies
3. › Account
4. › Fiduciary relationship
5. › Joint venture
6. › Whether fiduciary relationship gives rise to automatic right to account
1. Estoppel
2. › Issue estoppel
3. › Anshun estoppel
4. › Failure to raise defence or claim in earlier proceedings
5. › Whether unreasonable not to rely on variation of agreement in first action
6. › Whether reliance on variation in second proceedings would conflict with earlier judgment

Quick Take

The requirement that a plaintiff establish entitlement to moneys before an account is ordered is not universal and does not apply where parties are in a fiduciary or partnership relationship with mutual accounts. An account will be refused as premature where an expert accounting is already underway and joint venture assets remain unrealised. A party who fails to raise a contractual variation in earlier proceedings will be estopped from relying on it in subsequent proceedings where it was so relevant to the first action that it would have been unreasonable not to raise it.