Burton v Spencer - [2015] QSC 187

SUPREME COURT OF QUEENSLAND

CITATION:

Burton v Spencer [2015] QSC 187

PARTIES:

DAPHNE BURTON

(Applicant)

v
KENT RICHARD SPENCER
(Also known as Kenneth Richard Spencer)

(Respondent)

FILE NO/S:

SC No 478 of 2014

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

HEARING DATE:

23 February 2015; 26 February 2015; 5 March 2015.

DELIVERED ON:

25 June 2015

DELIVERED AT:

Cairns

JUDGE:

Henry J

ORDER:

1.         The respondent has committed a contempt of the order of North J made on 13 December 2012.

2.         I will hear the parties as to when the court should proceed to determine punishment for the contempt.

3. Application for a declaration under r 371(2) and orders the respondent is in contempt of the orders of 31 January 2013 and 22 July 2014 dismissed.

4.        Costs reserved.

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT-WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – OTHER CASES – where the respondent was granted letters of administration of the estate of the deceased – where an application to revoke the grant was made by the deceased’s mother and granted – whether the respondent had dealt with the estate property and failed to properly provide estate accounts in contempt of the Court’s orders – whether the contempt was wilful

PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – TIME – OTHER MATTERS – where r 665(3) requires a penal endorsement on an order that a person perform an act – where orders were made without a penal endorsement – whether the absence of a penal endorsement precludes a finding of contempt – whether the respondent was disadvantaged by the absence of a penal endorsement

Uniform Civil Procedure Rules 1999 (Qld) r 371, r 374, r 648, r 665

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, cited

ASIC v 1^st State Home Loans Pty Ltd & Anor [2002] QSC 55, cited

Camm v ASI Development Company Pty Ltd [2007] QCA 317, applied

Costello v Courtney [2000] QSC 67, considered

Re Intex Consultants Pty Ltd [1986] 2 QdR 99, distinguished

Witham v Holloway (1995) 183 CLR 525, cited

COUNSEL:

Mr JA Greggery for the Applicant

Mr SC Keim SC for the Respondent

SOLICITORS:

Connolly Suthers Lawyers for the Applicant

Preston Law for the Respondent

Introduction

Sharon Burton died intestate on 6 July 2012. On 14 August 2012 the respondent Mr Spencer obtained letters of administration of Sharon’s estate.
A premise of the grant was that Mr Spencer had been Sharon’s de facto partner. Sharon’s mother disputed that he had been. She sought a declaration to that effect, a revocation of the grant of letters of administration to Mr Spencer and the making of a grant to her instead. That application, filed 7 December 2012, was upheld in a judgment delivered by North J on 23 June 2014.
The present application alleges contempt by Mr Spencer of two orders which were made between the filing…

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 Burton v Spencer

Details

AGLC: Burton v Spencer [2015] QSC 187
Case: [2015] QSC 187
Decision Date: 25 June 2015

CaseChat Overview and Summary

Burton v Spencer involved a dispute concerning the administration of an estate by the respondent, Kent Richard Spencer, following the death of Sharon. Sharon's mother, the applicant, contested Spencer's handling of the estate, leading to allegations of contempt for failure to comply with court orders. The case was heard in the Supreme Court of Queensland.

The primary legal issues were whether Spencer's actions constituted contempt of court, specifically by disobeying orders regarding the administration and accounting of the estate, and whether the absence of a penal endorsement on the orders precluded a finding of contempt. The court also had to determine if Spencer was disadvantaged by the omission of the penal endorsement as required by rule 665(3) of the Uniform Civil Procedure Rules.

The court found that Spencer had indeed committed contempt by failing to comply with the court's orders, particularly regarding the commencement date and comprehensiveness of the estate account. However, the absence of a penal endorsement did not preclude a finding of contempt, as it was determined that Spencer had not been disadvantaged by this omission. Consequently, the application for a declaration under rule 371(2) and orders for contempt of the later orders was dismissed.

The court ordered that Spencer had committed a contempt of the order made on 13 December 2012 and scheduled a hearing to determine the punishment. The applications for a declaration under rule 371(2) and orders that Spencer was in contempt of the orders of 31 January 2013 and 22 July 2014 were dismissed. Costs were reserved pending further proceedings.

Orders

Orders of the court

1. The respondent has committed a contempt of the order of North J made on 13 December 2012.

2. I will hear the parties as to when the court should proceed to determine punishment for the contempt.

3. Application for a declaration under r 371(2) and orders the respondent is in contempt of the orders of 31 January 2013 and 22 July 2014 dismissed.

4. Costs reserved.

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

Having regard to all of these considerations I am not satisfied that Mr Spencer has not been disadvantaged by the non-compliance with r 665(3). Accordingly I will dismiss the application for an order under r 371(2) declaring the second and third orders effectual despite the absence of the r 665(3) penal endorsement and will dismiss the application for orders that Mr Spencer is in contempt of orders two and three.Conclusion The applicant has been successful to the extent that I have determined Mr Spencer is in contempt of order one. As earlier discussed I will hear the parties as to when the court should proceed to determine punishment. The application also sought an order that certain sums of money be repaid and the net rent from unit three be quantified. This did not attract particular attention in the submissions of the parties. Whether there is utility in the pursuit of these orders can be considered when the parties are heard on punishment. Given the proceeding is incomplete I will reserve costs.Orders My orders are:1.The respondent has committed a contempt of the order of North J made on 13 December 2012.2.I will hear the parties as to when the court should proceed to determine punishment for the contempt.3.Application for a declaration under r 371(2) and orders the respondent is in contempt of the orders of 31 January 2013 and 22 July 2014 dismissed.4.Costs reserved.

Ratio Decidendi

Legal Principle Established

On 14 February 2014 Mr Spencer’s solicitor filed an affidavit by Mr Spencer deposing that annexure A thereto was “an account of the estate”. The annexure was so brief it is convenient to quote it in full without its full heading:“Account of Administration and of the Receipts and Disbursements of Kent Richard Spencer the administrator under a Grant of Letters of Administration granted 14 August 2012 in the Supreme Court of Queensland in Townsville from the 14th day of August 2012 to 12 February 2013.Administrators AccountPart AReceipts In fairness it is noteworthy that Mr Spencer’s affidavit annexing the account did contain this additional factual information of relevance:“3. On 17 August 2012 upon application from myself the Queensland Teachers Mutual Bank transferred $607,380.92 to me being the balance of moneys held in the name of Sharon after the mortgage loan account of $85,550.30 was discharged.4. $200,000.00 is currently invested in four (4) lots of $50,000.00 each in separate term deposits in my name at the Queensland Teachers Mutual Bank.5. $200,000.00 is currently invested in two (2) lots of $100,000.00 each in separate term deposits in my name at the Commonwealth Bank of Australia.6. On 27 August 2012 I gifted $45,000.00 in accordance with Sharon’s wishes to the following persons in the following amounts:(a) Andrew James Burton - $10,000.00; and(b) Ashleigh Jennifer Corrallie Burton - $10,000.00;(c) Asher James Burton - $5,000.00;(d) Matthew Charlie Morton - $5,000.00;(e) Lachlan David James Burton - $5,000.00;(f) Rowena Jade Burton - $10,000.00.7. On the same day I also gifted the amount of $55,000.00 to Daphne Burton after discussions with Peter Burton.8. On 27 August 2012 I also handed to Sharon’s brother Peter Burton to deliver to Sharon’s mother Daphne all of Sharon’s jewellery except for a diamond ring that I gave Sharon in 2008 as a gift.” It is unclear why that information was not included in the account document, annexure A, particularly given Mr Spencer was legally represented. Even taking the affidavit content into account in addition to the annexure, it is self-evident that this purported estate account fell far short of the content requirements of r 648(1). For instance, in obvious breach of r 648(1)(a), it did not give clear and succinct particulars of transactions that had occurred in respect of any bank account relating to the estate. In this application seven breaches were alleged but breach (d) was abandoned before the hearing and breach (b) was abandoned during the hearing.Breach (a) Breach (a) of the second order is alleged to be:“Failing to commence the account on 6 July 2012.” The account purported to run from 14 August 2012, the date of the grant of letters of administration to Mr Spencer, rather the date of death, 6 July 2012. Had it commenced earlier and been complete it would have revealed earlier dealings by Mr Spencer with estate funds, provoking inevitable complaints as to his conduct. It would for example have shown a transfer of $20,307.81 from QTMB account xx9990 to QTMB account xx3038 on 12 July 2012. From this it would have been ascertainable that the implied representation in his account of having paid disbursements of $11,384.81 for funeral expenses from his own money was incorrect.

CITATION:	Burton v Spencer [2015] QSC 187
PARTIES:	DAPHNE BURTON (Applicant) v KENT RICHARD SPENCER (Also known as Kenneth Richard Spencer) (Respondent)
FILE NO/S:	SC No 478 of 2014
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
HEARING DATE:	23 February 2015; 26 February 2015; 5 March 2015.
DELIVERED ON:	25 June 2015
DELIVERED AT:	Cairns
JUDGE:	Henry J
ORDER:	1. The respondent has committed a contempt of the order of North J made on 13 December 2012. 2. I will hear the parties as to when the court should proceed to determine punishment for the contempt. 3. Application for a declaration under r 371(2) and orders the respondent is in contempt of the orders of 31 January 2013 and 22 July 2014 dismissed. 4. Costs reserved.
CATCHWORDS:	PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT-WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – OTHER CASES – where the respondent was granted letters of administration of the estate of the deceased – where an application to revoke the grant was made by the deceased’s mother and granted – whether the respondent had dealt with the estate property and failed to properly provide estate accounts in contempt of the Court’s orders – whether the contempt was wilful PROCEDURE – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – TIME – OTHER MATTERS – where r 665(3) requires a penal endorsement on an order that a person perform an act – where orders were made without a penal endorsement – whether the absence of a penal endorsement precludes a finding of contempt – whether the respondent was disadvantaged by the absence of a penal endorsement Uniform Civil Procedure Rules 1999 (Qld) r 371, r 374, r 648, r 665 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, cited ASIC v 1^st State Home Loans Pty Ltd & Anor [2002] QSC 55, cited Camm v ASI Development Company Pty Ltd [2007] QCA 317, applied Costello v Courtney [2000] QSC 67, considered Re Intex Consultants Pty Ltd [1986] 2 QdR 99, distinguished Witham v Holloway (1995) 183 CLR 525, cited
COUNSEL:	Mr JA Greggery for the Applicant Mr SC Keim SC for the Respondent
SOLICITORS:	Connolly Suthers Lawyers for the Applicant Preston Law for the Respondent