Orr v Ford [1989] HCA 4

High Court of Australia Mason C.J. Wilson, Deane, Toohey and Gaudron JJ. Orr v Ford [1989] HCA 4

ORDER Appeal allowed with costs. Set aside the judgment and order of the Full Court of the Supreme Court of Queensland and in lieu thereof order that:

(1) the appeal to that Court be allowed with costs;

(2) the judgment and order of Ryan J. be set aside and in lieu thereof declare that the respondents, as executors of the will of the late Francis William Stone, hold an undivided moiety of the leasehold of Grazing Farm Homestead Lease No. 1761 Taroom District on trust for the appellant beneficially and that that interest be subjected to a charge in the sum of $125,000 in favour of the respondents, as executors of the will of the late Francis William Stone; and

(3) the respondents pay the costs of the proceedings before Ryan J.

Cur. adv. vult.

The following written judgments were delivered:—

1989, Feb. 8 Mason C.J.

For the reasons given by Deane J. I am of the opinion that Mr. Orr's conduct in standing by for some eight years constituted "gross laches" which precludes the grant to him of relief on the footing that the late Dr. Stone, at the time of his death, held a one-half interest in the leasehold selection known as "Cockatoo" upon an express trust for Mr. Orr. Accordingly, subject to the appropriate allowance being made for the cost of improvements found to have been made by Dr. Stone, it should be declared that Mr. Orr is beneficially entitled to a 30/156 share of "Cockatoo" as it was conceded that the provisions of the Land Act 1962 Q. did not preclude or render unenforceable any trust of that share and it was not argued that there was a defence of laches in relation to declaratory relief in respect of that beneficial interest.

Wilson, Toohey and Gaudron JJ.

John Stuart Orr, the appellant, brought action in the Supreme Court of Queensland for a declaration that he was beneficially entitled to a one-half interest in a leasehold selection held under the Land Act 1962 Q. ("the Act") by Brian Hubird Ford and Philip Strugnell, the respondents, as executors of the will of the late Dr. Francis William Stone.