Lanai Unit Holdings Pty Ltd v Mallesons Stephen Jaques (No 2)

(2016) 331 ALR 408; [2016] QSC 242

Supreme Court of Queensland

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Interrogate

Catchwords

1. Trade Practices
2. › Misleading or deceptive conduct
3. › Damages under s 82
4. › Whether claim personal to person who suffered loss
5. › Whether assignable or transferable to successor trustee
6. › Trade Practices Act 1974 (Cth), ss 52, 82
1. Trusts
2. › Appointment of new trustee
3. › Automatic vesting of trust property
4. › Whether cause of action under s 82 TPA constitutes 'property'
5. › Whether proviso 'subject to the provisions of any other Act' excludes Commonwealth legislation
6. › Trusts Act 1973 (Qld), s 15(1)
1. Constitutional Law (Cth)
2. › Inconsistency between Commonwealth and State laws
3. › Section 109 of the Constitution
4. › Whether State law vesting TPA claim in new trustee would alter, impair or detract from operation of s 82 TPA
5. › Direct inconsistency
1. Practice and Procedure
2. › Strike out
3. › Whether statement of claim discloses reasonable cause of action
4. › Uniform Civil Procedure Rules 1999 (Qld), r 171

Quick Take

A claim for damages under s 82 of the Trade Practices Act 1974 (Cth) held by a trustee does not vest in a newly appointed trustee by operation of s 15(1) of the Trusts Act 1973 (Qld), because s 15(1) properly construed does not operate to vest property contrary to restrictions in Commonwealth legislation, and alternatively because such vesting would be inconsistent with s 82(1) and invalid under s 109 of the Constitution. This has implications for trust succession planning where the trust holds potential statutory causes of action that are personal to the person who suffered the loss.