Baldwin and Neale v Greenland - [2005] QSC 386

SUPREME COURT OF QUEENSLAND

CITATION:

Baldwin & Neale v Greenland [2005] QSC 386

PARTIES:

ROBYN JUNE BALDWIN and CHRISTOPHER CHARLES NEALE
(applicants)
v
BRUCE WILLIAM GREENLAND
(respondent)

FILE NO:

BS9105 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

21 November 2005, 12 December 2005,16 December 2005

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

11 November 2005

JUDGE:

Wilson J

ORDERS:

1.    That Bruce William Greenland be removed as executor and trustee of the estate of Christopher John Neale deceased;

2.    That subject to the formal requirements of the Registrar, a grant of letters of administration of the estate of Christopher John Neale deceased be issued to the Public Trustee of Queensland;

3.    That the applicants’ costs of and incidental to the application be assessed on an indemnity basis and paid out of the estate of Christopher John Neale deceased;

4.    That the respondent’s costs of and incidental to the application be assessed on an indemnity basis and paid out of the estate of Christopher John Neale deceased;

5.    That there be no order as to costs in respect of the appearance of The International Gospel Centre Incorporated.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – TITLE AND ESTATE OF – REMOVAL AND DISCHARGE – QUEENSLAND – EXECUTORS - REMOVAL

EQUITY – TRUSTS AND TRUSTEES – TRUSTEES – THEIR APPOINTMENT, DISMISSAL, ESTATE, ETC – RETIREMENT AND REMOVAL – REMOVAL BY THE COURT – application for removal of respondent as executor and trustee – application for appointment of Public Trustee as executor and trustee - where respondent had been removed from the management of the deceased’s estate during his lifetime – where respondent has been found guilty of professional misconduct of the deceased’s affairs – where professional misconduct was not related to dishonesty

Public Trustee Act 1978, s 27(3)
Uniform Civil Procedure Rules 1999, Rules 603

Greenland & Batstone v Intellectually Disabled Citizens Council of Queensland & Anor [2000] QSC 084, cited
In re Smith [1904] 1 Ch 139, cited
In the Matter of Practitioner X SCT/53; 9 October 2001, cited
Williams v Williams [2005] 1 QdR 105, cited

COUNSEL:

KT Magee for the applicants
L Stephens for the respondent
R McTaggart (solicitor) for The International Gospel Centre Incorporated

SOLICITORS:

Streeting Haney for the applicants

Winchester Young & Maddern for the respondent
Stephens & Tozer for The International Gospel Centre Incorporated

WILSON J: This is an application that the respondent be removed as executor and trustee of the estate of Christopher John Neale ("the deceased") and that the Public Trustee of Queensland be appointed in his stead. The applicants are the children of the deceased.

The deceased died on 20 July 2005 aged 91 years. He was survived by his third wife and the respondents who are the children of an earlier marriage. By his will made on 12 August 1994 he appointed the respondent (a solicitor) and James Glyn Batstone as the executors and trustees of his estate. Mr Batstone has renounced his right to probate and execution of the…

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.

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Details

Case: [2005] QSC 386
Decision Date: 21 November 2005, 12 December 2005,16 December 2005

CaseChat Overview and Summary

The applicants, Baldwin and Neale, sought the removal of Bruce William Greenland as the executor and trustee of the estate of Christopher John Neale, deceased. They also requested the appointment of the Public Trustee of Queensland as the new executor and trustee. The matter was heard in the Supreme Court of Queensland. Greenland had previously been removed from managing the deceased’s estate during his lifetime and had been found guilty of professional misconduct in relation to the deceased's affairs, although the misconduct was not related to dishonesty.

The primary legal issues before the court were whether Greenland should be removed as executor and trustee of Neale's estate and whether the Public Trustee should be appointed in his place. The applicants argued that Greenland's previous removal from managing the deceased's estate, coupled with his professional misconduct, justified his removal as executor and trustee. The court had to determine if the professional misconduct was sufficiently serious to warrant removal and if the appointment of the Public Trustee was appropriate.

The court found that Greenland's professional misconduct, though not involving dishonesty, was serious enough to warrant his removal as executor and trustee. The court considered Greenland’s previous removal from managing the estate and his misconduct in handling the deceased's affairs. The court was satisfied that the Public Trustee was a suitable alternative to manage the estate. The applicants’ costs and Greenland's costs were to be paid from the estate, while there was no order as to costs for The International Gospel Centre Incorporated.

The court ordered that Bruce William Greenland be removed as executor and trustee of the estate of Christopher John Neale, deceased. It also directed that a grant of letters of administration be issued to the Public Trustee of Queensland, subject to formal requirements. The applicants’ and Greenland’s costs were to be assessed on an indemnity basis and paid from the estate. There was no order for costs in respect of The International Gospel Centre Incorporated.

Orders

Orders of the court

1. That Bruce William Greenland be removed as executor and trustee of the estate of Christopher John Neale deceased;

2. That subject to the formal requirements of the Registrar, a grant of letters of administration of the estate of Christopher John Neale deceased be issued to the Public Trustee of Queensland;

3. That the applicants’ costs of and incidental to the application be assessed on an indemnity basis and paid out of the estate of Christopher John Neale deceased;

4. That the respondent’s costs of and incidental to the application be assessed on an indemnity basis and paid out of the estate of Christopher John Neale deceased;

5. That there be no order as to costs in respect of the appearance of The International Gospel Centre Incorporated.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Baldwin & Neale v Greenland [2005] QSC 386
PARTIES:	ROBYN JUNE BALDWIN and CHRISTOPHER CHARLES NEALE (applicants) v BRUCE WILLIAM GREENLAND (respondent)
FILE NO:	BS9105 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	21 November 2005, 12 December 2005,16 December 2005
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	11 November 2005
JUDGE:	Wilson J
ORDERS:	1. That Bruce William Greenland be removed as executor and trustee of the estate of Christopher John Neale deceased; 2. That subject to the formal requirements of the Registrar, a grant of letters of administration of the estate of Christopher John Neale deceased be issued to the Public Trustee of Queensland; 3. That the applicants’ costs of and incidental to the application be assessed on an indemnity basis and paid out of the estate of Christopher John Neale deceased; 4. That the respondent’s costs of and incidental to the application be assessed on an indemnity basis and paid out of the estate of Christopher John Neale deceased; 5. That there be no order as to costs in respect of the appearance of The International Gospel Centre Incorporated.
CATCHWORDS:	SUCCESSION – EXECUTORS AND ADMINISTRATORS – TITLE AND ESTATE OF – REMOVAL AND DISCHARGE – QUEENSLAND – EXECUTORS - REMOVAL EQUITY – TRUSTS AND TRUSTEES – TRUSTEES – THEIR APPOINTMENT, DISMISSAL, ESTATE, ETC – RETIREMENT AND REMOVAL – REMOVAL BY THE COURT – application for removal of respondent as executor and trustee – application for appointment of Public Trustee as executor and trustee - where respondent had been removed from the management of the deceased’s estate during his lifetime – where respondent has been found guilty of professional misconduct of the deceased’s affairs – where professional misconduct was not related to dishonesty Public Trustee Act 1978, s 27(3) Uniform Civil Procedure Rules 1999, Rules 603 Greenland & Batstone v Intellectually Disabled Citizens Council of Queensland & Anor [2000] QSC 084, cited In re Smith [1904] 1 Ch 139, cited In the Matter of Practitioner X SCT/53; 9 October 2001, cited Williams v Williams [2005] 1 QdR 105, cited
COUNSEL:	KT Magee for the applicants L Stephens for the respondent R McTaggart (solicitor) for The International Gospel Centre Incorporated
SOLICITORS:	Streeting Haney for the applicants Winchester Young & Maddern for the respondent Stephens & Tozer for The International Gospel Centre Incorporated