Abrahams v Abrahams

Case [2015] QCA 286

SUPREME COURT OF QUEENSLAND

CITATION:

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286

PARTIES:

JOHN ALEXANDER ABRAHAMS by his litigation guardian THE PUBLIC TRUSTEE OF QUEENSLAND
(applicant)
v
WILLIAM JAMES ABRAHAMS as executor of the Will of Robert James Abrahams, Deceased
(respondent)

FILE NO/S:

Appeal No 6657 of 2015
DC No 3860 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:


District Court at Brisbane – Unreported, 11 June 2015

DELIVERED ON:

Orders delivered ex tempore 10 November 2015
Reasons delivered 18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2015

JUDGES:

Margaret McMurdo P and Ann Lyons and Boddice JJ
Judgment of the Court

ORDERS:

Orders delivered ex tempore on 10 November 2015:

1.   If leave to appeal be needed, the applicant is granted leave to appeal.

2.   The appeal is allowed.

3.   The orders made by the primary judge on 11 June 2015 are set aside and instead it is ordered that:

(a) Under r 69 Uniform Civil Procedures Rules 1999 (Qld) (UCPR), Yvonne Carol Smith, in her capacity as executor of the Will of Robert James Abrahams (deceased), be substituted as Respondent in lieu of William James Abrahams.

(b) Under s 59 Public Trustee Act 1978 (Qld) and r 98 of the UCPR, the Court sanctions the compromise of these proceedings on the terms contained in the Terms of Settlement, a copy of which is Exhibit ‘MGS-3’, to the affidavit of Michael Gerald Stockall filed herein.

(c) Under s 41(1) Succession Act 1981 (Qld), further and better provision be made for the Applicant, John Alexander Abrahams, from the Estate of Robert James Abrahams (deceased), in the total amount of $140,000, inclusive of the Applicant’s costs of these proceedings from the estate of the deceased.

(d) Under s 41(2)(a) Succession Act, that the provision for the Applicant referred to in paragraph (c) hereof be paid to the Public Trustee of Queensland as financial administrator for John Alexander Abrahams within 14 days of the date of this order, and that the Public Trustee’s receipt as financial administrator be a sufficient discharge of the same.

(e) No legacy interest be payable to the Applicant under s 52(1)(e) Succession Act.

(f)     The opinion of Counsel for the Applicant, the affidavit of Clinton James Miles and the affidavit of Portia Frances Costello, filed 22 May 2015, be placed in a sealed envelope, marked “not to be opened without the order of the Court” and not to be opened without such an Order.

4.   The Respondent is to pay the Applicant’s costs of this application and the appeal.

5. The Respondent is granted a certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

6.   The amount of the costs recoverable by the Applicant under order 4 is limited to the amount prescribed for the purposes of s 16(3) Appeal Costs Fund Act.
CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR…

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AGLC
Abrahams v Abrahams [2015] QCA 286
Case
[2015] QCA 286
Decision Date

CaseChat Overview and Summary

In the case of Abrahams v Abrahams, the applicant sought further and better provision from the estate of his deceased father, who had left no provision for him in his Will. The applicant, who has Down Syndrome and other medical conditions, was represented by the Public Trustee of Queensland as his litigation guardian. The Public Trustee filed an application for further and better provision from the estate, and the applicant and his siblings reached a settlement agreement. The primary judge, however, refused to sanction the compromise, leading to an appeal. The Court of Appeal held that the appeal was allowed, and the orders made by the primary judge were set aside. The Court sanctioned the compromise of the proceedings on the terms of the settlement agreement and ordered that further and better provision be made for the applicant from his late father's estate in the total amount of $140,000, inclusive of the applicant's costs of the proceedings.

The legal issues before the Court of Appeal were whether the primary judge erred in refusing to sanction the compromise of the applicant's claim for further and better provision out of his late father's estate. The Court of Appeal found that the primary judge had erred in his assessment of the applicant's needs and the provisions made for him in the settlement agreement. The Court held that the compromise was reasonable and appropriate, considering the applicant's unique circumstances and needs. The Court also found that the primary judge had given insufficient weight to the affidavits of the applicant's solicitor and the medical professionals involved in his care.

The Court of Appeal set aside the orders made by the primary judge and replaced them with the terms of the settlement agreement. The Court sanctioned the compromise, ordered that further and better provision be made for the applicant from his late father's estate, and directed that the payment be made to the Public Trustee of Queensland as the applicant's financial administrator. The Court also ordered that no legacy interest be payable to the applicant under the Succession Act and that certain affidavits be placed in a sealed envelope and not opened without the order of the Court. The Court further ordered that the respondent pay the applicant's costs of the application and the appeal, subject to the limitations of the Appeal Costs Fund Act.

Orders

Orders of the court

Orders delivered ex tempore on 10 November 2015:

1. If leave to appeal be needed, the applicant is granted leave to appeal.

2. The appeal is allowed.

3. The orders made by the primary judge on 11 June 2015 are set aside and instead it is ordered that:

(a) Under r 69 Uniform Civil Procedures Rules 1999 (Qld) (UCPR), Yvonne Carol Smith, in her capacity as executor of the Will of Robert James Abrahams (deceased), be substituted as Respondent in lieu of William James Abrahams.

(b) Under s 59 Public Trustee Act 1978 (Qld) and r 98 of the UCPR, the Court sanctions the compromise of these proceedings on the terms contained in the Terms of Settlement, a copy of which is Exhibit ‘MGS-3’, to the affidavit of Michael Gerald Stockall filed herein.

(c) Under s 41(1) Succession Act 1981 (Qld), further and better provision be made for the Applicant, John Alexander Abrahams, from the Estate of Robert James Abrahams (deceased), in the total amount of $140,000, inclusive of the Applicant’s costs of these proceedings from the estate of the deceased.

(d) Under s 41(2)(a) Succession Act, that the provision for the Applicant referred to in paragraph (c) hereof be paid to the Public Trustee of Queensland as financial administrator for John Alexander Abrahams within 14 days of the date of this order, and that the Public Trustee’s receipt as financial administrator be a sufficient discharge of the same.

(e) No legacy interest be payable to the Applicant under s 52(1)(e) Succession Act.

(f) The opinion of Counsel for the Applicant, the affidavit of Clinton James Miles and the affidavit of Portia Frances Costello, filed 22 May 2015, be placed in a sealed envelope, marked “not to be opened without the order of the Court” and not to be opened without such an Order.

4. The Respondent is to pay the Applicant’s costs of this application and the appeal.

5. The Respondent is granted a certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

6. The amount of the costs recoverable by the Applicant under order 4 is limited to the amount prescribed for the purposes of s 16(3) Appeal Costs Fund Act.

Background

Background to the litigation

The Court indicated that reasons for those Orders would be made at a later date. These are those reasons.Background The applicant’s father died on 7 January 2014. By his Will, dated 25 February 2010, no provision was made for the applicant. The claim for further and better provision out of the estate of his late father was instituted by the applicant’s litigation guardian, the Public Trustee, pursuant to s 41 of the Succession Act 1981 (Qld). The applicant, who is 46 years of age is, the youngest of five children of the deceased. He has Down Syndrome, as well as multiple other medical conditions which include a heart condition, bilateral cataracts and non-insulin dependent diabetes. In 2009, the applicant suffered a heart attack, which was related to his morbid obesity. The applicant resided with his parents in the family home until he was 41 years of age. His mother was his primary carer until her death in 2007. His elderly father (the deceased) then took on the role of caring for his son. When the deceased suffered a stroke, he was not able to provide the support his son required. On 5 October 2009, the Public Trustee of Queensland was appointed as the applicant’s administrator for all financial matters pursuant to the Guardianship and Administration Act 2000 (Qld). The applicant was placed in emergency accommodation awaiting suitable accommodation. In July 2010, he was moved into accommodation with Multicap in a funded arrangement with the State and Federal governments.The deceased’s Will Pursuant to a Will executed on 25 February 2010, the deceased appointed his daughter Yvonne Carol Smith as the executor and trustee of his estate. Under the terms of that Will, the deceased essentially left his entire estate to her with provisions that if she predeceased him or died before the estate was distributed then the estate went to his daughter Pauline and then to his son William. Clause 5 of that Will contained the following paragraph in Clause 5:(a)“my son John Alexander Abrahams (‘John’) who suffers Down's Syndrome, resides in a Multicap facility and has all of his financial and lifestyle needs met from his social security benefits and Multicap; John has no understanding of money and lacks the capacity to go out and spend it. It is likely that any amount he might otherwise receive under my Will would just sit in a bank account without actually benefiting him.” A further paragraph in Clause 5 related to the deceased’s son Richard. It provided that the deceased was not making any provision for him as he had breached his trust by stealing amounts totalling $45,000 from him over a period of 18 months and also "stealing about $150,000.00 from John representing funds my late wife and I set aside for him”. He concluded that it was his view that Richard's conduct made him undeserving of any benefit under the Will. A further Will, which did not comply with the formal requirements of the Succession Act 1981 (Qld), was executed by the deceased some ten months later, on 12 December 2012. Pursuant to that later informal Will, the deceased left one quarter of his estate to the applicant but made no provision for Richard. In that informal Will, the deceased appointed his son William James Abrahams as executor, and in default, the Public Trustee.The application for further and better provision from the estate

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 118 of the District Court of Queensland Act 1967 (Qld) provides:“118Appeal to the Court of Appeal in certain cases(1)This section--(a) does not apply to an appeal from a judgment of the District Court in the exercise of its criminal jurisdiction under part 4; but(b) does apply to an appeal from other judgments of the District Court in the exercise of its criminal jurisdiction, including on an appeal brought before the court under the Justices Act1886, section 222.(2)A party who is dissatisfied with a final or interlocutory judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment—(a) is given for an amount equal to or more than the Magistrates Courts jurisdictional limit; or(b) relates to a claim for, or relating to, property that has a value equal to or more than the Magistrates Courts jurisdictional limit.(3)Subject to sections 118A and 118B, a party who is dissatisfied with any other judgment of the District Court, whether in the court's original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court.(4)In deciding whether there is a right of appeal under this section, the Court of Appeal may—(a) inform itself in any way it considers appropriate, including by reference to the appeal record; and(b) decide the question summarily without hearing evidence.(5)If it is reasonably arguable that a right of appeal under this section exists, the Court of Appeal may treat that circumstance as a ground for granting leave to appeal.(6)If the Court of Appeal grants leave under subsection (3), it may grant it on the conditions it considers appropriate.(7)A single judge of the Court of Appeal may—(a) grant (with or without condition) or refuse leave mentioned in subsection (3); or(b) make the decision mentioned in subsection (4)(b).(8)An appeal from the District Court in its original jurisdiction is by way of rehearing.In this section—final judgment, of the District Court, includes a judgment that grants leave to enter a judgment mentioned in subsection (2).Magistrates Courts jurisdictional limit means the amount of the jurisdictional limit of Magistrates Courts for personal actions stated in the Magistrates Courts Act1921, section 4(a).” Whether leave is required depends upon the construction of s 118(2) and whether the appeal relates to a claim "for, or relating to property, that has a value equal to or more than the Magistrates Court jurisdictional limit". That limit is $150,000. In Praxis Pty Ltd v Hewbridge Pty Ltd,[2] this Court held:“[8] The criterion adopted in s 118(2)(b) is concerned not with simple money claims in personal actions like the present, which can be measured by the amount recovered by the judgment; but primarily with claims for the recovery of land or other things in specie or their value in actions for detinue and the like. The legislative history of s 118 and its predecessor s 92 of the Act bears this out. It is true that s 118(2)(b) includes not only a claim ‘for’ property having the value specified but also to a claim "relating to" property of that value. But the words "relating to", although susceptible on occasions of a wide interpretation, take their meaning and colour from the context in which they appear. An action under s 82 of the Trade Practices Act to recover the amount of the loss or damage caused by a contravention of s 53A of that Act is not, within the meaning of s 118(2)(b) of the District Court ofQueensland Act, a claim relating to property even if the representation constituting the contravening conduct concerned property valued at more than $50,000. If that were not so, a claim for damages itself insignificant in amount for a temporary or casual trespass to land worth millions of dollars would be appealable as of right under s 118(2)(b). The same would apply, for instance, to slight damage inflicted on an unusually expensive motor car or other valuable property.”[2][2004] QCA 79.

Ratio Decidendi

Legal Principle Established

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