Allingham v Fuller

[2013] QSC 81

SUPREME COURT OF QUEENSLAND

CITATION:

Allingham v Fuller & Anor [2013] QSC 81

PARTIES:

PETER GERALD ALLINGHAM
(applicant)
v
PATRICIA JOAN FULLER
(first respondent)
and
PATRICIA JOAN FULLER AND ALYCIA JANE SNELL AS EXECUTORS OF THE WILL OF GERALD GORDON ALLILNGHAM DECEASED
(second respondents)

FILE NO:

BS2281/12

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

2 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

30 August 2012

JUDGE:

Daubney J

ORDERS:

The application for summary judgment is dismissed;1.      

The costs of and incidental to that application are reserved;2.      

3.      Liberty to the parties to apply for further orders and directions.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – SUMMARY JUDGMENT – where the applicant made an originating application for compensation under s106 or, in the alternative, s 107 of the Powers of Attorney Act 1998 (“the Act”) – where the applicant had been granted leave to make the application out of time – where the first and second respondents seek summary judgment to be entered against the applicant pursuant to R293 of the UCPR – where the respondents did not file a notice of intention to defend – whether the application for summary judgment should be allowed

Powers of Attorney Act 1998 (Qld), ss 87, 106, 107
Uniform Civil Procedure Rules 1999 (Qld), rr 4(2), 134, 291, 292, 293
Civil Proceedings Act 2011 (Qld), Schedule 1

Re Estate of Andrej Urbancic [2000] QSC 170, distinguished
Smith v Glegg [2004] QSC 443, considered

COUNSEL:

CC Heyworth-Smith for the applicant
DJ Morgan for the respondent

SOLICITORS:

De Groots for the applicant

McCullough Robertson for the respondent

1. This proceeding was commenced by an originating application filed by Peter        Allingham (“the applicant”) seeking the following:

“TAKE NOTICE that the applicant is applying to the Court for the following orders –
Section 106 Powers of Attorney Act 1998

1. That pursuant to section 106(5) Powers of Attorney Act 1998 the applicant be granted leave to make this application out of time.

2. That pursuant to section 106(1) Powers of Attorney Act 1998, the first respondent be ordered to compensate the estate of GERALD GORDON ALLINGHAM for the loss caused by the respondent’s failure to comply with the provisions of the Powers of Attorney Act 1998 in the exercise of the powers under the Act (‘compensation sum’);

Section 107 Powers of Attorney Act 1998

3. In the alternative to orders 1 and 2, that pursuant to section 107(4) Powers of Attorney Act 1998 the applicant be granted leave to make this application out of time.

4. That pursuant to section 107(3) Powers of Attorney Act 1998, the Applicant be compensated from the estate of GERALD GORDON ALLINGHAM for the loss suffered by him by reason of the first respondent’s dealing with the property of the deceased, while acting as power of attorney (“compensation sum”);

General

5.   That the first respondent pay interest at the rate of 9%…