Borthistle v Kanaef - [2016] QSC 182

SUPREME COURT OF QUEENSLAND

CITATION:

Borthistle v Kanaef & Ors [2016] QSC 182

PARTIES:

CHRISTINE BORTHISTLE

(applicant)

v
JANET HELEN KANAEF

(first respondent)
JANET HELEN KANAEF and CAROL RUTH VIDAL as executors of the will of JOHN HAMPDEN BORTHISTLE deceased
(second respondents)

FILE NO:

BS11379 of 2014

DIVISION:

Trial Division

PROCEEDING:

Interlocutory applications

DELIVERED ON:

16 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

7 June 2016

JUDGE:

Mullins J

ORDERS:

1.       The application filed on 15 April 2016 is dismissed.

2. The application pursuant to s 106(5) of the Powers of Attorney Act 1998 to extend the time for making the application for compensation for loss caused by breaches of the Powers of Attorney Act 1998 is dismissed.

3. The application pursuant to s 49(2) of the Succession Act 1981 to give the consent of the court nunc pro tunc for the applicant to bring this proceeding for the benefit of the estate of the deceased is adjourned to a date to be fixed.

4.       The application to join Mr Glenn Desmond as third respondent to this proceeding is adjourned to a date to be fixed.

5.       The application for an injunction against the first respondent is dismissed.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – GETTING IN AND REALISING ESTATE – where applicant and respondents were executors, trustees and beneficiaries of deceased father’s estate – where applicant renounced role of executor – where grant of probate made to respondents – where applicant beneficiary seeks leave to bring claim on behalf of estate not brought by executors – whether it is appropriate to grant leave where the applicant shares the estate equally with each of the respondents, the estate is modest, the quantum in dispute is unclear and the claim has not been adequately pleaded

Powers of Attorney Act 1998 (Qld), s 66, s 73, s 86, s 87, s 88, s 106
Succession Act 1981 (Qld), s 49, s 66

Bridgewater v Leahy [1997] QCA 36, considered
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66, considered
Ede v Ede [2007] 2 Qd R 323; [2006] QSC 378, considered
Smith v Glegg [2005] 1 Qd R 561; [2004] QSC 443, considered

COUNSEL:

C A Brewer for the applicant

A P J Collins for the first and second respondents and the proposed third respondent

SOLICITORS:

Mehera Saunders for the applicant

Bell Legal Group for the first and second respondents and the proposed third respondent

Mr John Borthistle died on 29 October 2013 at the age of 89 years. He was survived by his three daughters who are all parties to this proceeding: Ms Borthistle, Ms Kanaef and Ms Vidal. Although all three daughters were named as executors and trustees in the deceased’s will made on 27 February 2013, the applicant renounced the role as executor and the grant of probate of the deceased’s last will was made to Ms Kanaef and Ms Vidal on 25 February 2014 and in that capacity…

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 Borthistle v Kanaef

Details

AGLC: Borthistle v Kanaef [2016] QSC 182
Case: [2016] QSC 182
Decision Date: 16 August 2016

CaseChat Overview and Summary

Borthistle v Kanaef involved the applicant and the respondents, who were the executors, trustees, and beneficiaries of their deceased father’s estate. The applicant, having renounced the role of executor, sought leave to bring a claim on behalf of the estate, which had not been initiated by the executors. The central issue before the court was whether it was appropriate to grant the applicant’s request, given that the applicant shared the estate equally with each of the respondents, the estate was modest, the amount in dispute was unclear, and the claim had not been adequately pleaded. The court needed to determine if the applicant’s claim should be allowed to proceed despite the procedural shortcomings and the shared interests of the parties involved.

In resolving the matter, the court considered the various applications made by the applicant, including the request for leave to bring the claim on behalf of the estate, an application to extend the time for making a compensation claim under the Powers of Attorney Act 1998, a request for the court's consent to bring the proceeding for the benefit of the deceased's estate, and an application to join a third party respondent. The court dismissed the initial application filed on 15 April 2016, the application to extend the time for making the compensation claim, and the application for an injunction against the first respondent. The court also adjourned the application to join Mr Glenn Desmond as a third respondent and the application for the court's consent to bring the proceeding for the benefit of the deceased’s estate to a date to be fixed. The court's reasoning hinged on the procedural deficiencies in the applicant's claims and the shared interests of the parties.

The court's decision ultimately resulted in the dismissal of several applications and the adjournment of others. The application filed on 15 April 2016, the application to extend the time for making the compensation claim, and the application for an injunction against the first respondent were dismissed. The application for the court's consent to bring the proceeding for the benefit of the deceased's estate and the application to join Mr Glenn Desmond as a third respondent were both adjourned. This outcome reflects the court's stance on the procedural issues and shared interests among the parties involved in the estate.

Orders

Orders of the court

1. The application filed on 15 April 2016 is dismissed.

2. The application pursuant to s 106(5) of the Powers of Attorney Act 1998 to extend the time for making the application for compensation for loss caused by breaches of the Powers of Attorney Act 1998 is dismissed.

3. The application pursuant to s 49(2) of the Succession Act 1981 to give the consent of the court nunc pro tunc for the applicant to bring this proceeding for the benefit of the estate of the deceased is adjourned to a date to be fixed.

4. The application to join Mr Glenn Desmond as third respondent to this proceeding is adjourned to a date to be fixed.

5. The application for an injunction against the first respondent is dismissed.

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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CITATION:	Borthistle v Kanaef & Ors [2016] QSC 182
PARTIES:	CHRISTINE BORTHISTLE (applicant) v JANET HELEN KANAEF (first respondent) JANET HELEN KANAEF and CAROL RUTH VIDAL as executors of the will of JOHN HAMPDEN BORTHISTLE deceased (second respondents)
FILE NO:	BS11379 of 2014
DIVISION:	Trial Division
PROCEEDING:	Interlocutory applications
DELIVERED ON:	16 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	7 June 2016
JUDGE:	Mullins J
ORDERS:	1. The application filed on 15 April 2016 is dismissed. 2. The application pursuant to s 106(5) of the Powers of Attorney Act 1998 to extend the time for making the application for compensation for loss caused by breaches of the Powers of Attorney Act 1998 is dismissed. 3. The application pursuant to s 49(2) of the Succession Act 1981 to give the consent of the court nunc pro tunc for the applicant to bring this proceeding for the benefit of the estate of the deceased is adjourned to a date to be fixed. 4. The application to join Mr Glenn Desmond as third respondent to this proceeding is adjourned to a date to be fixed. 5. The application for an injunction against the first respondent is dismissed.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – GETTING IN AND REALISING ESTATE – where applicant and respondents were executors, trustees and beneficiaries of deceased father’s estate – where applicant renounced role of executor – where grant of probate made to respondents – where applicant beneficiary seeks leave to bring claim on behalf of estate not brought by executors – whether it is appropriate to grant leave where the applicant shares the estate equally with each of the respondents, the estate is modest, the quantum in dispute is unclear and the claim has not been adequately pleaded Powers of Attorney Act 1998 (Qld), s 66, s 73, s 86, s 87, s 88, s 106 Succession Act 1981 (Qld), s 49, s 66 Bridgewater v Leahy [1997] QCA 36, considered Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66, considered Ede v Ede [2007] 2 Qd R 323; [2006] QSC 378, considered Smith v Glegg [2005] 1 Qd R 561; [2004] QSC 443, considered
COUNSEL:	C A Brewer for the applicant A P J Collins for the first and second respondents and the proposed third respondent
SOLICITORS:	Mehera Saunders for the applicant Bell Legal Group for the first and second respondents and the proposed third respondent