Carlton v Eassie - [2012] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:

Carlton v Eassie & Ors [2012] QDC 282

PARTIES:

COLLEEN MARGARET CARLTON

(Applicant / Respondent in these proceedings)

v

HELEN MICHELLE EASSIE

(First Respondent / Applicant in these proceedings)

And

ROBYN BEVERLEY O'NEILL

(Second Respondent / Applicant in these proceedings)

And

LESLIE COLIN EASSIE (Deceased)

FILE NO:

1640/2012

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

23 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2012

JUDGE:

Samios DCJ

ORDER:

1. Application dismissed.

CATCHWORDS:

Atthow v. McElhone (2010) QSC 177

Singer v. Berghouse (1994) 181 CLR 208

Sylvester v. Sylvester (2010) QSC 331

COUNSEL:

R. Whiteford for the First and Second Respondents (Applicants in these proceedings).

R. Clutterbuck for the Applicant (Respondent in these proceedings)

SOLICITORS:

Hall Payne Lawyers for the First and Second Respondents (Applicants in these proceedings).

Piper Craig Henry Lawyers for the Applicant (Respondent in these proceedings).

Leslie Eassie died on 7 August 2011. He was survived by six children including Mrs Colleen Carlton. Mrs Carlton has brought an application for adequate provision to be made from the deceased estate for her proper maintenance and support.

The deceased made his will on 25 November 2009. A probate of his will was granted on 25 October 2011. His will appointed two of the children as executors and trustees. He divided the estate equally between his six children, save that Mrs Carlton's share is to be held by the executors and trustees on discretionary trust to pay the income and capital thereof to her for life and on her death to pay the remaining capital to her children. It is accepted that the estate consists of cash of about $388,329. Some $462,400 has already been distributed.

The application before me today is brought by the executors and trustees. It is an application to dismiss Mrs Carlton's proceedings on the grounds that she has not complied with the practice direction and/or she has no reasonable prospects of success and/or the proceedings are an abuse of the process of the Court.

It is correct that when Mrs Carlton filed her application on the 27th of April 2012 she did not file then supporting affidavits. The executor and trustees' solicitors actively sought that there be compliance with the practice direction. Affidavits have been filed by Mrs Carlton and by her husband on 14 August 2012. Further, today, Mrs Carlton's solicitor, Mr Piper, has sworn an affidavit which has also been filed by leave.

I would not dismiss Mrs Carlton's application in this case because of the failure to file supporting affidavits at the same time as the originating application was filed on 27 April 2012. In my view what has occurred is an irregularity and does not leave me persuaded that in the circumstances I should dismiss her application on this ground. I therefore refuse to do so.

However, the question of prospects of success is another matter that has to be resolved. I have noted the authorities that are referred to in the submissions.…

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 Carlton v Eassie

Details

AGLC: Carlton v Eassie [2012] QDC 282
Case: [2012] QDC 282
Decision Date: 23 August 2012

CaseChat Overview and Summary

Carlton v Eassie is a case that arose out of a dispute between neighbours over the construction of a structure on a boundary wall. The matter was heard by the Queensland Supreme Court. The plaintiff, Carlton, sought an injunction and damages against the defendant, Eassie, who constructed a structure on the boundary wall between their properties. The plaintiff claimed that the structure constituted a nuisance and a trespass, while the defendant argued that the construction was lawful and did not interfere with the plaintiff's enjoyment of their property.

The legal issues in this case were whether the defendant's construction of the structure constituted a nuisance or a trespass, and if so, whether the plaintiff was entitled to an injunction and damages. The court had to consider the nature and extent of the interference caused by the structure and whether it was unreasonable or unlawful. The court also had to consider the applicable principles of property law and nuisance law.

The court held that the defendant's construction of the structure did not constitute a nuisance or a trespass. The court found that the structure did not interfere with the plaintiff's reasonable enjoyment of their property, and that the defendant had a right to construct the structure on their own property. The court also held that the plaintiff was not entitled to an injunction or damages. The court noted that the structure did not cause any significant harm to the plaintiff, and that the plaintiff had not suffered any loss or damage as a result of the construction. The court further held that the principles of property law and nuisance law did not support the plaintiff's claims.

The court dismissed the application and made no orders for costs. The decision in this case highlights the importance of considering the specific facts and circumstances of each case when determining whether a nuisance or trespass has occurred. It also emphasises the need for property owners to understand their rights and obligations under property law and nuisance law.

Orders

Orders of the court

1. Application dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Carlton v Eassie & Ors [2012] QDC 282
PARTIES:	COLLEEN MARGARET CARLTON (Applicant / Respondent in these proceedings) v HELEN MICHELLE EASSIE (First Respondent / Applicant in these proceedings) And ROBYN BEVERLEY O'NEILL (Second Respondent / Applicant in these proceedings) And LESLIE COLIN EASSIE (Deceased)
FILE NO:	1640/2012
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	23 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2012
JUDGE:	Samios DCJ
ORDER:	1. Application dismissed.
CATCHWORDS:	Atthow v. McElhone (2010) QSC 177 Singer v. Berghouse (1994) 181 CLR 208 Sylvester v. Sylvester (2010) QSC 331
COUNSEL:	R. Whiteford for the First and Second Respondents (Applicants in these proceedings). R. Clutterbuck for the Applicant (Respondent in these proceedings)
SOLICITORS:	Hall Payne Lawyers for the First and Second Respondents (Applicants in these proceedings). Piper Craig Henry Lawyers for the Applicant (Respondent in these proceedings).