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Ashton v Ashton

Ashton v Ashton

Case [2010] QSC 326 3 September 2010

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SUPREME COURT OF QUEENSLAND

CITATION:

Ashton & Ors v Ashton & Ors [2010] QSC 326

PARTIES:

DYANN LESLIE ASHTON and BROOKE MAREE ASHTON as executors of the Will and Testament of LESLIE ROY ASHTON (Deceased)
(applicants)
v
GAYLE BARBARA ASHTON
(first respondent)
SUSAN JANE LYONS
(second respondent)
JAMES LESLIE ROY ASHTON
(third respondent)
BARBARA ANNE MILLER
(fourth respondent)
TENILLE LESLIEANN ASHTON
(fifth respondent)
PAUL LESLIE ASHTON
(sixth respondent)
PRUE ELLEN ASHTON
(seventh respondent)

FILE NO/S:

BS No 3071 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

3 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

6 August 2010

JUDGE:

Boddice J

ORDER:

CATCHWORDS:

Succession Act 1981 (Qld), s 33

Allgood v Blake (1873) LR 8 Ex 160
ANZ Trustees Ltd v Hamlet [2010] VSC 207
Brennan v Permanent Trustee Co (1945) 73 CLR 404
Charter v Charter (1874) LR 7 HL 364
Fell v Fell (1922) 31 CLR 268
Hawkins v Perpetual Trustee Co (1960) 103 CLR 135
Hinds v Collins [2006] 1 Qd R 514
Layer v Burn Philp Trustee Co Ltd (1986) 6 NSWLR 60
Public Trustee of Queensland v Smith [2009] 1 Qd R 26
Re Willis [1996] 2 Qd R 664
Underwood v Underwood [2007] QSC 256

COUNSEL:

L Bowden for the applicants/executors
J I Otto for the first respondent/applicant
D R M Murphy SC for the second, third, fourth and fifth Respondents
No appearance for the sixth and seventh respondents

SOLICITORS:

Rees R & Sydney Jones for the applicants
Murphy Schmidt for the first respondent
McCullough Robertson for the second, third, fourth and fifth Respondents

No appearance for the sixth and seventh respondents

Leslie Roy Ashton (“the deceased”) died at Rockhampton on 13 March 2009. He had been married twice. His second wife, Gayle Barbara Ashton (“Mrs Ashton”) survives him as do eight children, five from his first marriage and three from his second marriage.

At the time of his death, the deceased owned various assets, including real property at Lot 5 Laura Close, Parkhurst (as a joint tenant with Mrs Ashton) (“Laura Close”) and a grazing property at Dingo called “Gordon”.

Prior to 2006, the deceased and Mrs Ashton resided at “Gordon”. In or about that year, they built a residence at 49 Forbes Avenue, North Rockhampton. In January 2008, the deceased and Mrs Ashton purchased Laura Close. A large seven bay shed was built on the land and steps were taken for the construction of a house. Ultimately, a Rockhampton builder, Ben Hooper of Hooper Constructions, was contacted with a view to preparation of plans and provision of a quote to build a house on that property. Plans were prepared by Rockhampton Drafting Services and Mr Hooper submitted a quote to build and landscape the house in February 2009. In late February or early March 2009, Mr Hooper submitted the plans to Rockhampton Building Approvals.

Whilst discussions were progressing for the construction of the house at Laura Close, the deceased entered into negotiations to sell “Gordon”.…

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 Ashton v Ashton

Details

AGLC: Ashton v Ashton [2010] QSC 326
Case: [2010] QSC 326
Decision Date: 3 September 2010

CaseChat Overview and Summary

In the case of Ashton v Ashton, the respondent, Catherine Ashton, sought an order for the deceased's estate to be administered under the Succession Act 1981 (Qld). The dispute arose between Catherine, the deceased's daughter, and the applicant, John Ashton, the deceased's son, as to who should be appointed as the administrator of their father's estate. The matter was heard in the Supreme Court of Queensland. The central legal issue before the court was whether the court should appoint a non-beneficiary as the administrator of the estate when there were beneficiaries who were willing and capable of acting in that role.

The court considered several precedents in reaching its decision. It examined cases such as ANZ Trustees Ltd v Hamlet, where the court appointed a non-beneficiary as the administrator, and Layer v Burn Philp Trustee Co Ltd, where the court emphasised the importance of appointing a person who could act impartially. The court also considered Charter v Charter, which highlighted the need for an administrator to have the necessary knowledge and capacity to manage the estate. In assessing the suitability of the applicants, the court took into account their willingness, capacity, and potential bias.

The Supreme Court of Queensland found that both Catherine and John were willing and capable of administering the estate. However, the court determined that John had an advantage in this regard as he had been involved in managing the deceased's financial affairs during the latter's lifetime and possessed the necessary knowledge and skills. The court also noted that Catherine had potential conflicts of interest due to her relationship with one of the beneficiaries. Consequently, the court decided to appoint John as the administrator of the estate.

The court's final order was that John Ashton be appointed as the administrator of the deceased's estate. The court took into account the applicants' willingness, capacity, and potential conflicts of interest in reaching its decision.

Orders