Amos v Amos

SUPREME COURT OF QUEENSLAND

CITATION:

Amos v Amos [2004] QCA 490

PARTIES:

LEONARD RALPH AMOS as co-executor of the will of CHARLES EDWARD AMOS late of Wynnum in the state of Queensland, deceased
(plaintiff/applicant)
v
EDWARD AMOS
(defendant/respondent)

FILE NO/S:

Appeal No 10686 of 2004
SC No 4763 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

17 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

17 December 2004

JUDGES:

McMurdo P

ORDER:

Application for stay of execution refused with costs to be assessed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – applicant unsuccessfully sought order below that deed of settlement entered into concerning Will be declared invalid – deed of settlement included clause allowing demolition of property – applicant seeks order granting stay of execution until appeal heard – where material suggests appeal will be heard before any demolition of property – whether balance of convenience favours granting the stay

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, applied
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255, applied

COUNSEL:

The applicant appeared on his own behalf
C Jennings for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Ian K Fry & Co for the respondent

HER HONOUR:  Mr Charles Amos died on 23 February 1999.  The applicant, Mr Edward Amos, and the respondent, Mr Leonard Amos, are co-executors of their late father Mr Charles Amos's will.  His estate includes a property at 58 Melville Terrace, Wynnum.  Disputes arose between the deceased's three children, (Messrs Edward and Leonard Amos and Mrs Frances Williams), as to the estate and they commenced litigation over it. 

On 15 September 2004 the deceased's three children entered into a deed of settlement, compromising the actions between Mr Leonard Amos and Mr Edward Amos.  The deed's provisions included that the trustees of the estate would pay up to $52,000 to Frances Williams and Leonard Amos in advance of their respective entitlements as beneficiaries, subject to moneys being retained to pay for expenses of the estate relating to the Wynnum property; the Wynnum property would be sold by the agreed agent of the executors, Mr Ian Kennedy Fry, solicitor;  Mr Leonard Amos and Mr Edward Amos would do all things necessary and conducive for the sale of the Wynnum property, the net proceeds of which would be divided in equal thirds amongst the beneficiaries, subject to adjustment for any advances, and that on breach of the deed Mr Leonard Amos would be at liberty to bring enforcement proceedings.

Mr Leonard Amos's legal representatives have indicated to this Court that the solicitor, Mr Fry, has now been instructed to retain the moneys due to the beneficiaries under the deed for the purpose of meeting expenses of the deceased estate.

Mr Leonard Amos contends that Mr…