Catelan v Herceg - [2012] QSC 320

SUPREME COURT OF QUEENSLAND

CITATION:

Catelan v Herceg [2012] QSC 320

PARTIES:

LINDA MARIA CATELAN
(applicant)
v
DANNY HERCEG (as one of the executors of the will of RAYMOND DANIEL CATELAN (deceased))
(respondent)

FILE NO:

BS 3752 of 2012

DIVISION:

Trial

DELIVERED ON:

25 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2012

JUDGE:

de Jersey CJ

ORDER:

1. The application for summary judgment is dismissed;

2. The indemnity costs of both parties be paid from the estate.

CATCHWORDS:

PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — SUMMARY JUDGMENT — where the wife filed an application for an order under s 41 of the Succession Act 1981 for further provision from estate of deceased, her husband – where estate of substantial value – where wife may have to draw on capital to maintain standard of living – where binding financial agreements entered by wife and the deceased regulating what wife was to receive upon the death of the deceased – where deceased’s will provided only for the wife to receive furniture, artworks and the contents of a house and the sum of money agreed in first financial agreement – where first agreement provided wife was to receive a “settlement sum” upon separation from deceased or death of deceased – where over the course of the relationship the wife received from the deceased substantially more than the settlement sum in the first financial agreement – where wife waived entitlement to “settlement sum” in the second agreement – where second agreement envisaged the possibility of the deceased leaving further gifts to the wife under a new will – where a new will was drafted but never finalised – where the executor applied for summary dismissal of the application for further provision from the estate – whether summary judgment should be granted

Succession Act 1981, s 41
Uniform Civil Procedure Rules 1999, r 658

Bosch v Perpetual Trustee Co [1938] AC 463, cited
Frey v Frey[2009] QSC 43, cited
Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159, cited
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, applied
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, cited

White v Barron (1980) 144 CLR 431; [1980] HCA 14, cited

COUNSEL:

G A Thompson SC, with A Fraser, for the applicant Catelan
P Dunning SC, with J Otto, for the respondent Herceg

SOLICITORS:

de Groots for the applicant Catelan
Mullins Lawyers for the respondent Herceg

The applicant is a 57 year old woman who was married to the deceased on 24 June 2007. They had commenced a relationship a year earlier. In May 2008 the deceased was diagnosed with a serious illness from which he died on 24 July 2011, aged 61 years. The applicant and the deceased enjoyed a close relationship. She cared for him, in the sense of nursing him, up to his death. On the evidence…

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 Catelan v Herceg

Details

AGLC: Catelan v Herceg [2012] QSC 320
Case: [2012] QSC 320
Decision Date: 25 October 2012

CaseChat Overview and Summary

The case of Catelan v Herceg involved a dispute regarding an application for further provision from the estate of a deceased individual. The wife, who had filed an application under section 41 of the Succession Act 1981, sought additional financial support from her late husband's estate, which was of substantial value. The estate's value and the potential necessity for the wife to draw on the capital to maintain her lifestyle were significant factors in the case. The court had to consider the binding financial agreements that had been entered into by the wife and the deceased, which regulated what the wife was to receive upon his death. The deceased's will provided for the wife to receive only certain items and a specified sum of money, which was less than the settlement sum outlined in the first financial agreement. Despite the wife having received more than the initial settlement sum during the marriage, she had waived her entitlement to the settlement sum in a subsequent agreement, which also allowed for the possibility of additional gifts under a new will that was never finalised.

The legal issues before the court were whether the executor's application for summary dismissal of the wife's application for further provision should be granted and, if not, whether the wife was entitled to claim additional financial support from the estate. The court needed to interpret the financial agreements and the will, and assess the wife's entitlement to further provision given the circumstances of the marriage and the agreements in place. The executor argued that the wife's application should be summarily dismissed, as she had already received more than what was stipulated in the first agreement and had waived her rights to the settlement sum in the second agreement.

The court dismissed the application for summary judgment, ruling that the wife's application should proceed to a full hearing. The reasoning behind the dismissal was that there were genuine issues to be tried, particularly concerning the wife's entitlement to further provision from the estate. The court found that the circumstances of the marriage, including the wife's financial reliance on the deceased and the possibility of further gifts under the new will, warranted a full hearing to determine the appropriate financial support. The court also noted that the wife's waiver of the settlement sum in the second agreement did not necessarily preclude her from claiming additional support under the statute. Consequently, the application for summary judgment was dismissed, and the court ordered that the indemnity costs of both parties be paid from the estate.

Orders

Orders of the court

1. The application for summary judgment is dismissed;

2. The indemnity costs of both parties be paid from the estate.

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:	Catelan v Herceg [2012] QSC 320
PARTIES:	LINDA MARIA CATELAN (applicant) v DANNY HERCEG (as one of the executors of the will of RAYMOND DANIEL CATELAN (deceased)) (respondent)
FILE NO:	BS 3752 of 2012
DIVISION:	Trial
DELIVERED ON:	25 October 2012
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2012
JUDGE:	de Jersey CJ
ORDER:	1. The application for summary judgment is dismissed; 2. The indemnity costs of both parties be paid from the estate.
CATCHWORDS:	PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — SUMMARY JUDGMENT — where the wife filed an application for an order under s 41 of the Succession Act 1981 for further provision from estate of deceased, her husband – where estate of substantial value – where wife may have to draw on capital to maintain standard of living – where binding financial agreements entered by wife and the deceased regulating what wife was to receive upon the death of the deceased – where deceased’s will provided only for the wife to receive furniture, artworks and the contents of a house and the sum of money agreed in first financial agreement – where first agreement provided wife was to receive a “settlement sum” upon separation from deceased or death of deceased – where over the course of the relationship the wife received from the deceased substantially more than the settlement sum in the first financial agreement – where wife waived entitlement to “settlement sum” in the second agreement – where second agreement envisaged the possibility of the deceased leaving further gifts to the wife under a new will – where a new will was drafted but never finalised – where the executor applied for summary dismissal of the application for further provision from the estate – whether summary judgment should be granted Succession Act 1981, s 41 Uniform Civil Procedure Rules 1999, r 658 Bosch v Perpetual Trustee Co [1938] AC 463, cited Frey v Frey[2009] QSC 43, cited Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159, cited Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, applied Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, cited White v Barron (1980) 144 CLR 431; [1980] HCA 14, cited
COUNSEL:	G A Thompson SC, with A Fraser, for the applicant Catelan P Dunning SC, with J Otto, for the respondent Herceg
SOLICITORS:	de Groots for the applicant Catelan Mullins Lawyers for the respondent Herceg