Browne v The Public Trustee of Queensland

[2006] QSC 69

SUPREME COURT OF QUEENSLAND

CITATION:

Browne v The Public Trustee of Queensland [2006] QSC 069

PARTIES:

BERNARD JAMES BROWNE
(applicant)
v
THE PUBLIC TRUSTEE OF QUEENSLAND
(respondent)

FILE NO/S:

10755/05

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

6 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

29 March 2006

JUDGE:

McMurdo J

ORDER:

The Public Trustee pay to the applicant the proceeds of sale of the land at 27 Henry Street, Woolloongabba, less any costs and expenses duly payable to the Public Trustee.
 

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – where The Public Trustee took possession of 27 Henry Street Woolloongabba and sold it as unclaimed property under Part 8 of the Public Trustee Act 1978 (Qld) – where the applicant applied for an order under s 110(1)(a) of the Public Trustee Act 1974 (Qld) that The Public Trustee of Queensland cease to be the administrator of the proceeds of sale of  the Woolloongabba property ­– whether The Public Trustee of Queensland should pay the proceeds of sale of the Woolloongabba property to the applicant

Public Trustee Act 1978 (Qld), Part 8, s 110, s 110(1)(a),
s 111
Succession Act 1981 (Qld), s 65

Axon v Axon (1937) 59 CLR 395, cited

Halbert v Mynar [1981] 2 NSWLR 659, cited
In the estate of Dixon (1969) 90 WN (Pt 1) (NSW) 469, cited
Re Albert (dec’d) [1967] VR 875, cited

Re Comfort (dec’d) [1947] VLR 237, cited

Re Watkinson (dec’d) [1952] VLR 123, cited

Re Zappullo(dec’d) [1966] VR 390, cited

COUNSEL:

D C Rangiah for the applicant
D M Hayes for the respondent

SOLICITORS:

Ellison Moschella & Co for the applicant
Official Solicitor to The Public Trustee for the respondent

1. cMURDO J: MThe applicant claims to be entitled to the proceeds of sale of a house at 27 Henry Street, Woolloongabba. The Public Trustee took possession of and sold it as unclaimed property under Part 8 of the Public Trustee Act 1978 (Qld).

1. This application is for an order under s 110(1)(a) of the Act. Section 110 provides, in part, as follows:

“110      Termination of administration

(1)The public trustee shall cease to be the administrator under this division of any unclaimed property if--

(a)the court so orders on application served on the public trustee and made by the owner of the property or by the owner's personal representative or duly authorised agent or by any person having any interest in the property or in any part thereof; or

(b)the public trustee decides that it is desirable that the public trustee should cease to be the administrator of the property; or

(c)the public trustee transfers or delivers property to the owner or the owner's personal representative or duly authorised agent.

…

(4)Upon the public trustee ceasing to be the administrator of any unclaimed property which remains in the public trustee's name or in the public trustee's possession the public trustee shall transfer or deliver the property to the person entitled thereto.”

1. Section 111 provides that upon such an application the court is not bound by the rules of evidence and may accept a claimant as the owner of or entitled to property although the owner may be unable to adduce sufficient evidence to obtain or recover the property in other proceedings.  It further provides that the court is to “have regard to the circumstances of each case in determining the character and sufficiency of the evidence of title adduced”.

1. Until the sale by the Public Trustee, the registered owners of the property were Carl (also known as Charles) Louis Berndtsson and Joseph Merrell Berndtsson, as joint tenants.  They inherited the house from their mother, Jane Ruth Berndtsson, who died on 3 October 1952.  Charles was born on 26 August 1907 and Joseph on 9 September 1909.  They became the registered owners on 21 June 1953. 

1. Charles disappeared in the early 1960s and there is no record of his death.  Joseph lived in the house until his death on 11 May 1972.  The applicant says that Joseph survived Charles and that Joseph died intestate.  There were no children of his marriage.  Under the intestacy rules then applying, the whole of his estate would pass to his widow, who was Alice Berndtsson.

1. Alice Berndtsson was an aunt of the applicant’s wife, Dorothy Anne Browne, who died in 1991.  Alice Bendtsson died on 25 August 1994.  There is what appears to be a copy of a will made by her on 3 January 1973, under which she left all of her estate to her brother, George Thomas Tocchini.  He died on 10 January 1998, and according to a will he apparently made on 19 June 1995, the whole of his estate was left to the applicant. 

1. The applicant first met Charles at about the time the applicant married in 1952.  The applicant was then living at Kangaroo Point and occasionally he would see Charles in the street as the applicant and his family took an evening walk.  Then the applicant and his family moved to Tarragindi in 1957.  He has not seen Charles since.  The applicant started to visit the subject house at Henry Street in about 1966, in order to see Alice and Joseph Berndtsson.  By that stage Charles was not living there.  The applicant relates what George Tocchini told him, which was that Charles, a single man, had at one stage lived at Henry Street with Joseph and Alice. Mr Tocchini told the applicant that Joseph and Charles did not see eye to eye and that Charles moved out of Henry Street after which Joseph, Alice and Mr Tocchini never saw him again.  Again according to Mr Tocchini, Joseph paid all the rates and outgoings on the property, as did Alice on his death and George Tocchini upon her death.

1. Mr Tocchini had also said that at some stage in the 1940s Charles had fallen from a moving tram and suffered a head injury.  The applicant recalls that when he would see him on those occasions in the 1950s, Charles was always drunk and in poor health, and that it was not possible to hold a proper conversation with him.  He was very slightly built and looked ill nourished and he always seemed to be wearing the same clothes. 

1. The applicant’s uncle was a constable stationed at Woolloongabba police station.  He told the applicant that he knew Charles whom he described as a derelict, and related stories of Charles being an unemployed man who spent much of his time in two local hotels.  Another uncle of the applicant managed a wine bar in the area and he had the same recollection of Charles. 

1. According to this evidence then, Charles was a single man who left the Henry Street house at some time in the late 1950s or the 1960s, but in any case by 1966, and whose place of residence (if any) was unknown from then on.  Numerous enquiries have failed to show what happened to him.  There is no record of his death.  He is not recorded on any electoral roll in any State or Territory since the early 1960s.  No driver’s licence was ever issued to him and there is no evidence of receipt of any pension or other Social Security benefit paid to him during the last 40 years.  Records at the Royal Brisbane Hospital show that he had been a patient there but not since 1962.  Enquiries have been made of Queensland Police, the Queensland Ambulance Service, certain nursing homes and funeral companies.  The enquiries of the police records have provided one possible explanation for what happened to him, in that the body of an unidentified “elderly male of European extraction and between 65-75, height 5’8” (Charles’ height according to the applicant) was found at the Whites Hill Reserve in Brisbane, which was probably an unidentified body recorded as buried by the Government undertaker at Toowong Cemetery on 2 March 1962.  The post mortem examination did not enable any opinion to be given as to the cause of death of that person.  It is possible that this was Charles Berndtsson but it is a mere possibility.

1. Putting aside that last mentioned matter, what is known of Charles Berndtsson is that he was an unemployed single man, who had suffered a substantial head injury, was in poor health and almost certainly an alcoholic, and who was likely to have been living on the streets for at least much of the time after he left Henry Street.  He left there at least six years before the death of his brother Joseph.  Joseph died at the age of 63, and he had been two years younger than Charles.  From this evidence, I am satisfied on the balance of probabilities that Charles predeceased Joseph.

1. It is unnecessary then to consider the applicant’s alternative submission, which was based upon s 65 of the Succession Act 1981 (Qld) which provides:

“65     Presumption of survivorship

Subject to this Act, where 2 or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder for a period of 1 day.”

1. The applicant submitted that the death of Charles could be presumed, because he has not been seen or heard of for seven years,[1] so that in terms of s 65 it is proved that two persons, Charles and Joseph Berndtsson, have died. It was then submitted that as it was uncertain which had survived the other, it should be presumed pursuant to s 65 that Joseph had survived his older brother. That submission involves a question of whether the presumption applies where the death of the person is presumed and not proved, and where the circumstances of that death are unknown. Some cases dealing with the equivalent provisions in other States have held that the presumption does not apply in such a case[2] whereas there are other cases which suggest that s 65 would apply.[3]  But in any case, the section does not apply where the court is able to conclude from the evidence, on the balance of probabilities, that one person died before the other: L McCredie: Wills, Probate and the Administration of the Estates of Deceased Persons in Victoria (2^nd ed, 1989) at [922] citing Re Comfort (dec’d) [1947] VLR 237 and Re Zappullo (dec’d) [1966] VR 390. An order consequential upon such a finding of fact would constitute an ‘order of the court’ to which the operation of the presumption is expressly subject.

   [1]Axon v Axon (1937) 59 CLR 395 at 405

   [2]Re Albert (dec’d) [1967] VR 875; Halbert v Mynar [1981] 2 NSWLR 659

   [3]Re Watkinson (dec’d) [1952] VLR 123; In the estate of Dixon (1969) 90 WN (Pt 1) (NSW) 469

1. Because Joseph survived his brother, he became the sole beneficial owner of the property, which then passed to his estate upon his death in 1972.  But still the property remained registered in the names of Charles and Joseph Berndtsson.  The Public Trustee has no record of the Public Trustee or the Public Curator having ever attended to the administration of Joseph’s estate, or in turn, that of Alice Berndtsson.  George Tocchini had told the applicant that Joseph had never made a will and everything in his estate had passed to his widow Alice as there were no children.  Alice continued to live in this same house for another 22 years before her death in 1994, and as I have mentioned, she paid the outgoings upon it.

1. Upon this material the applicant says that it should be found that Joseph died intestate, and that Alice became beneficially entitled to the house.  The Public Trustee argued otherwise, saying that if I concluded that Charles predeceased Joseph, I should go no further than declaring that the house formed part of Joseph’s estate.  The present proceedings are not for the administration of that estate.  They involve a claimed entitlement to about $80,000 held as the balance of the proceeds of sale, where it is open to a court to uphold such a claim upon the basis of information of facts which are not proved according to the laws of evidence.  In the circumstances, I am satisfied that all of Joseph’s estate did pass to his widow Alice and that she became and remained the beneficial owner of the house until her death.

1. Similar questions arise for the estates of Alice Berndtsson and George Tocchini.  He told the applicant that Alice had made one, but only one, will, of which the applicant saw a copy when he and Mr Tocchini were going through Alice’s possessions after her death.  The applicant’s solicitor has been provided with a copy of that will, by the solicitor who prepared it.  It is dated 3 January 1973 and it left her entire estate to Mr Tocchini.  Probate has not been granted.  Mr Tocchini continued to live in this house, as he had for decades, and it appears that there were no other substantial assets in her estate.  As I have mentioned, he then paid the outgoings on the house.  Again, in the particular context of these proceedings, I am prepared to conclude that this was her last will, and that her ownership of the house therefore passed to Mr Tocchini. 

1. There is a copy of what appears to be a will made by Mr Tocchini dated 19 June 1995 which appoints the Public Trustee as executor and leaves all of his estate to the applicant.  Again probate has not been sought.  It was only when the applicant was so informed by the Public Trustee that he became aware that he was Mr Tocchini’s sole beneficiary.  The Public Trustee has advised in correspondence to the applicant’s solicitor that no administration of Mr Tocchini’s estate was undertaken “as the Public Trustee was advised that he did not have an estate which required formal administration”.  It plainly appears from the evidence that the applicant had known Mr Tocchini for decades, and in the years closer to his death, Mr Tocchini had had much assistance and friendship from him.  It is entirely likely that Mr Tocchini, who did not have children, would leave his estate to the applicant.  Again, for the purposes of these proceedings, I am prepared to conclude that according to Mr Tocchini’s last will, all of his property was left to the applicant.

1. In the circumstances, I am satisfied that the applicant has demonstrated his entitlement to the proceeds of sale.  It will be ordered that the Public Trustee pay to the applicant the proceeds of sale of the land at 27 Henry Street, Woolloongabba, less any costs and expenses duly payable to the Public Trustee. 

1. I shall hear the parties as to any further orders, including as to the costs of this application.