Burton v Spencer

[2014] QCA 204

SUPREME COURT OF QUEENSLAND

CITATION:

Burton v Spencer [2014] QCA 204

PARTIES:

DAPHNE BURTON
(applicant)
v
KENT RICHARD SPENCER
(respondent)

FILE NO/S:

Appeal No 6469 of 2014
SC No 506 of 2012
SC No 820 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Security for Costs

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

22 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2014

JUDGE:

Gotterson JA

ORDERS:

Pursuant to r 772 of the Uniform Civil Procedure Rules the appellant provide security for the costs of the appeal in the sum of $10,000 in a form approved by the Registrar.1.      

Such security be provided on or before 24 October 2014.2.      

Until the security is given, no party to the appeal take any further step in it without the leave of a judge of the Court of Appeal.3.      

Each party’s costs of this application be costs in the appeal.4.      

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the deceased died intestate – where the respondent claimed that he and the deceased were in a de facto relationship – where the respondent obtained Letters of Administration – where the applicant (the deceased’s mother) filed an application seeking the Letters of Administration to be revoked – where the learned trial judge revoked the Letters of Administration on the basis that the respondent had not proven that he and the deceased lived “together as a couple on a genuine domestic basis” – where the respondent appeals the decision of the learned primary judge – where the respondent has sworn that he is impecunious and has no assets of significant value – whether the appeal has prospects of success – whether there should be security for costs

Acts Interpretation Act 1954 (Qld), s 32DA
Succession Act 1981 (Qld), s 5AA
Uniform Civil Procedure Rules 1999 (Qld), r 772

Perry v Killmier[2014] QCA 64, cited

COUNSEL:

D B Fraser QC for the applicant
S J Keim SC for the respondent

SOLICITORS:

Connolly Suthers for the applicant
Purcell Taylor for the respondent

1. GOTTERSON JA: On 23 June 2014, reasons for judgment were delivered in proceedings in which the principal issue was whether at the date of death of Sharon Ann Burton on 6 July 2012, Kent Richard Spencer had been her de facto partner as that term is defined in s 32DA of the Acts Interpretation Act (Qld) 1954 for a continuous period of at least two years ending on the date of death. Any entitlement he had to share in her estate upon an intestacy as a spouse under s 5AA of the Succession Act 1981 was dependent upon an answer in his favour on the principal issue. However, the issue was resolved against him.[1]

   [1]Later, the learned primary judge made orders to the effect that each party is to pay its own costs of the proceedings.

1. On 10 July 2014, Mr Spencer, as appellant, filed a…