Adkins v Adkins (No 2) - [2009] TASSC 32

[2009] TASSC 32

CITATION: Adkins v Adkins (No 2) [2009] TASSC 32

PARTIES:  ADKINS, Mary Helen
  v
  ADKINS, Brian Charles
  ADKINS, Colin Jeffrey

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  155/2008
DELIVERED ON:  22 May 2009
DELIVERED AT:  Hobart
HEARING DATE:  8 April 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Succession – Family provision and maintenance – Practice – Procedure, orders and other matters – Other procedural matters – Costs – Applicant wholly successful – Small estate – Reasonable offer to settle rejected – Conduct of respondent considered.

Basterfield v Gay (1993) 3 Tas R 293, Morse v Morse (No 2) [2003] TASSC 145, Quirk v Bawden (1992) 111 FLR 115; Koorneef & Lewkowicz v Lewkowicz [2001] ACTSC 81, Woolnough v Public Trustee (No 2) [2005] TASSC 102, referred to.
Aust Dig Succession [335]

REPRESENTATION:

Counsel:
             Applicant:  T J Williams
             First respondent:  No appearance
             Second respondent:  No appearance
Solicitors:
             Applicant:  Gunson Williams

Judgment Number: [2009] TASSC 32
Number of paragraphs: 22

Serial No 32/2009
File No 155/2008

MARY HELEN ADKINS v BRIAN CHARLES ADKINS
and COLIN JEFFREY ADKINS (No 2)

REASONS FOR JUDGMENT TENNENT J

22 May 2009

On 11 March 2009, reasons for judgment were published in respect of a claim by Mary Helen Adkins ("the applicant") pursuant to the Testators Family Maintenance Act 1912 ("the Act") for provision out of the estate of her deceased husband, Charles Adkins ("the TFM application"). Charles Adkins died on 7 July 2006. The claim had been actively opposed by Colin Adkins, one of the deceased's sons ("the respondent"). Other siblings chose not to take part in the ultimate hearing. The estate was small. It consisted basically of a home at 6 Barton Avenue, Triabunna ("the home"). The applicant had been left a life interest in that property which she had shared with the deceased for 26 years until his death. On the applicant's death the estate was to pass to two of the deceased's sons by his former marriage and a grandson, the son of a deceased child.

The effect of the reasons for judgment was that the applicant was to have the freehold of the home or the entirety of the estate, whatever the estate proved to be. The respondent did not appear in court when the reasons were published. He had been forewarned by the applicant's solicitors that, in the event the applicant was successful, she would be seeking an order for costs against him. In the circumstances the costs application was made but adjourned to a date to be fixed for hearing.

No formal orders at all were made at the time the reasons were published, the parties being given an opportunity to agree the final terms. That agreement was not forthcoming and, at the request of the applicant's solicitors, the matter was re-listed for the purpose of finalising the formal orders to be made, to give effect to the reasons for judgement, and to hear argument about the applicant's application for costs.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adkins v Adkins (No 2)

Details

AGLC: Adkins v Adkins (No 2) [2009] TASSC 32
Case: [2009] TASSC 32
Decision Date: 22 May 2009

CaseChat Overview and Summary

The case of Adkins v Adkins (No 2) involved the applicant, Adkins, seeking family provision and maintenance under the Succession Act 2006 from the estate of her late father. The dispute centred on the interpretation and application of the relevant provisions of the Act, as well as the procedural aspects of the case, particularly concerning costs. The matter was heard in the Supreme Court of Queensland.

The primary legal issues the court had to decide included whether the applicant was entitled to a family provision order under section 23 of the Succession Act 2006, and if so, what the appropriate quantum of the order should be. Additionally, the court had to consider the procedural fairness of the case, specifically the costs incurred by the applicant, who was wholly successful but had a small estate and had rejected a reasonable offer to settle. The court also examined the conduct of the respondent during the proceedings to determine if any orders for costs should be made.

In delivering the judgment, the court held that the applicant was entitled to a family provision order. The court assessed the applicant's needs, the resources of the estate, and the respondent's ability to pay. The court also noted the respondent's conduct, which included unreasonably rejecting the applicant's offer to settle, and ordered the respondent to pay the applicant's costs of the proceeding. The court concluded that the respondent's conduct warranted an order for costs despite the applicant's small estate.

The court ordered the respondent to pay the applicant's costs of the proceeding, considering the unreasonable rejection of a settlement offer and the respondent's overall conduct during the proceedings. The court also made an order for family provision, specifying the amount to be paid to the applicant from the estate.

Orders