Baldwin v Greenland

Case [2006] QCA 293

SUPREME COURT OF QUEENSLAND

CITATION:

Baldwin and Neale v Greenland [2006] QCA 293

PARTIES:

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

FILE NO/S:

Appeal No 10796 of 2005
SC No 9105 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2006

JUDGES:

McMurdo P, Jerrard JA and Helman J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed

2. (By consent) the Public Trustee of Queensland be appointed trustee of the estate of Christopher John Neale

3. Within seven days each party is to file submissions in relation to costs, incorporating any submissions that relate to the issuing of an indemnity certificate.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – TITLE AND ESTATE – REMOVAL AND DISCHARGE - trial judge ordered that the appellant be removed as executor and trustee of the estate of the respondents’ deceased father – trial judge ordered that a grant of letters of administration to the estate be issued to the Public Trustee – the appellant’s record of mismanagement of the deceased’s affairs during the deceased’s lifetime led trial judge to conclude that removal of the appellant was in the best interests of the deceased’s estate – whether the trial judge needed to find on proper grounds that the appellant was not a fit and proper person to be the executor of the deceased’s estate to make an order under s 6(1) Succession Act 1981 (Qld) for the removal of the executor

Intellectually Disabled Citizens Act 1985 (Qld), s 5, s 32(1A)
Succession Act 1981 (Qld), s 6(1)
Trusts Act1973 (Qld), s 80

Bates v Messner (1967) 67 SR (NSW) 187, considered
Gowans v Watkins (Unreported, Supreme Court of Victoria, Teague J, 21 February 1996), cited
In the matter of Practitioner X SCT/53, Disciplinary Action Repost, hearing date 9 October 2001, considered
Mavrideros v Mack (1998) 45 NSWLR 80, cited
Williams v Williams [2005] 1 Qd R 105; [2004] QSC 269, cited

COUNSEL:

L A Stephens for the appellant
K T Magee for the respondents

SOLICITORS:

Winchester Young & Maddern for the appellant
Haney Lawyers for the respondent

  1. McMURDO P:  I agree with Jerrard JA's reasons, subject only to the following brief observations.

  1. Section 6 Succession Act 1981 (Qld) provides:

"6          Jurisdiction

(1)         Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.

(2)         The court

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Baldwin v Greenland [2006] QCA 293
Case
[2006] QCA 293
Decision Date

CaseChat Overview and Summary

Baldwin v Greenland involved the appellant contesting the removal of their position as executor and trustee of the estate of the deceased, Christopher John Neale. The respondents sought the appellant's removal on grounds of mismanagement and unsuitability. The trial judge concluded that the appellant's mismanagement of the deceased's affairs warranted their removal and ordered the issuance of letters of administration to the Public Trustee. The appeal was brought to determine whether the trial judge correctly exercised their discretion to remove the appellant.

The legal issue centred on whether the trial judge was required to find that the appellant was not a fit and proper person to be the executor of the deceased's estate before making an order under section 6(1) of the Succession Act 1981 (Qld) for the removal of the executor. The appellant argued that such a finding was necessary, while the respondents contended that the trial judge had sufficient grounds to order the removal without such a finding. The court examined the statutory framework and relevant case law to address this contention.

The court held that the trial judge did not need to make a specific finding that the appellant was not a fit and proper person to be the executor before ordering their removal. The court found that the trial judge was entitled to consider the appellant's conduct and its impact on the estate when exercising their discretion to remove the executor. The mismanagement of the deceased's affairs, as established by the trial judge, provided sufficient grounds for the removal order. The court dismissed the appeal, affirming the trial judge's decision.

The final orders included dismissing the appeal, appointing the Public Trustee of Queensland as the trustee of the estate of Christopher John Neale, and requiring both parties to submit their costs and indemnity certificate submissions within seven days.

Orders

Orders of the court

1. Appeal dismissed

2. (By consent) the Public Trustee of Queensland be appointed trustee of the estate of Christopher John Neale

3. Within seven days each party is to file submissions in relation to costs, incorporating any submissions that relate to the issuing of an indemnity certificate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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