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Charlesworth v Griffiths

Charlesworth v Griffiths

Case [2018] QDC 115 21 June 2018

Civil Litigation & Procedure

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DISTRICT COURT OF QUEENSLAND

CITATION:

Charlesworth v Griffiths & Anor [2018] QDC 115

PARTIES:

SARAH JANE CHARLESWORTH (Applicant/Respondent)

V

REBECCA LEAH GRIFFITHS

(First Respondent/Applicant)

AND

JESSICA JANE LYDIARD

(Second Respondent/Applicant)

FILE NO/S:

DC No 1186 of 2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 June 2018

DELIVERED AT:

Brisbane

JUDGE:

Porter QC DCJ

ORDER:

1.   The application be dismissed;

2.   The respondents (in the originating application) pay the costs of the applicant (in the originating application) of the application on an indemnity basis;

3.   It is declared that the respondents are entitled to indemnity from the assets of the estate in respect of the costs of the applicant ordered in order 2 and the costs of the respondents of the application;

4.   Any order for mediation of the matter be vacated;

5.   The applicant file any further material by 29 June 2018;

6.   The respondents file any further material by Monday 16 July 2018;

7.   The matter be set down for trial for one day on 10 August 2018.

CATCHWORDS:
SUCCESSION – ADMINISTRATION OF ESTATE – DISTRIBUTION – where there is an application under s. 41(1) Succession Act 1981 (Qld) for further provision from the estate – whether the applicant has been left without adequate provision for her proper maintenance – whether provision ought to be made out of the deceased’s estate for the applicant.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where the executors of the estate apply for summary dismissal of the application – where the court has inherent jurisdiction to prevent abuse of its processes by the bringing of untenable claims – where the Court has equivalent jurisdiction, at the least arising under s. 69 District Court Act 1967 (Qld) – whether the application should be summarily dismissed.

Legislation
Succession Act 1981 (Qld) ss. 41, 44

District Court Act 1967 (Qld) s. 69

Uniform Civil Procedure Rules 1999 (Qld) r. 5

Cases

Atthow v McElhone [2010] QSC 177

Bladwell v Davis [2004] NSWCA 170

Singer v Berghouse (No 2) (1994) 181 CLR 201

Cropley v Cropley [2002] NSWSC 349

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Higgins v Higgins [2005] QSC 210

Kowalski v Public Trustee & Ors [2011] QSC 323
Laursen & Ors v Laursen [2009] QSC 30
Luciano v Rosenblum (1985) 2 NSWLR 65

Sellars v Maeyke [2005] QSC 368

COUNSEL:
SOLICITORS:

D J Topp for the applicant (respondent on this application)

C A Brewer for the respondents (applicants on this application)

Robbins Watsons Solicitors for the applicant (respondent on this application)

Parsons Law for the respondents (applicants on this application)

Introduction

This is an application by the executors of the estate of Mr Kenneth Tandy for the summary dismissal of an application by their sister, Mrs Charlesworth under s. 41(1) Succession Act 1981 (Qld) for further provision from Mr Tandy’s estate.
For the reasons I now give, I dismiss the…

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 Charlesworth v Griffiths

Details

AGLC: Charlesworth v Griffiths [2018] QDC 115
Case: [2018] QDC 115
Decision Date: 21 June 2018

CaseChat Overview and Summary

The case of Charlesworth v Griffiths involves an application under section 41(1) of the Succession Act 1981 (Qld) for further provision from the estate of a deceased person. The applicant, Charlesworth, contends that she has been left without adequate provision for her proper maintenance and that an additional provision ought to be made out of the deceased's estate. The respondents are the executors of the estate, represented by Griffiths. The matter came before the court on an application by the executors for a summary dismissal of the applicant's claim, which they argued was untenable and an abuse of the court's process.

The court was tasked with determining whether the applicant's claim had any reasonable prospect of success and, if not, whether it should be summarily dismissed. Additionally, the court had to consider the inherent jurisdiction it possesses to prevent abuse of its processes and whether there was equivalent jurisdiction under section 69 of the District Court Act 1967 (Qld). The court examined the merits of the applicant's claim and whether the application for summary dismissal should be granted.

After reviewing the evidence and arguments presented, the court found that the applicant's claim lacked merit and was an abuse of the court's process. Consequently, the court dismissed the application, ordered the respondents to pay the applicant's costs on an indemnity basis, and declared that the respondents were entitled to indemnity from the estate's assets for the costs ordered. The court also vacated any existing order for mediation and set specific deadlines for the filing of further material, with the matter scheduled for a one-day trial on 10 August 2018.

Orders

Orders of the court

1. The application be dismissed;

2. The respondents (in the originating application) pay the costs of the applicant (in the originating application) of the application on an indemnity basis;

3. It is declared that the respondents are entitled to indemnity from the assets of the estate in respect of the costs of the applicant ordered in order 2 and the costs of the respondents of the application;

4. Any order for mediation of the matter be vacated;

5. The applicant file any further material by 29 June 2018;

6. The respondents file any further material by Monday 16 July 2018;

7. The matter be set down for trial for one day on 10 August 2018.

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.

Citations

AGLC Citation

Charlesworth v Griffiths [2018] QDC 115

Most Recent Citation

Pitt v Fricke [2019] QDC 193

Cases citing this decision · 2 of 2 shown

Taylor v Brinin
[2024] QDC 84 Para 1

…I set out my view as to summary dismissal of an application for a family provision in Charlesworth v Griffiths [2018] QDC 115. I began my analysis with Higgins v Higgins [2005] QSC 110, which relevantly provides: [9] Mr D Mullins SC for Douglas submitted that Malcolm’s claim is so weak that it ought to be struck…
Pitt v Fricke
[2019] QDC 193

…Qld) r 658, r 700A Cases Atthow v McElhone [2010] QSC 177 Baker v Baker (No 2) [2019] QDC 140 Charlesworth v Griffiths & Anor [2018] QDC 115 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Higgins v Higgins [2005] 2 Qd R 502…

View all 2 citing cases →

Cases cited in this decision · 13 of 13 shown

Andrew v Andrew
[2012] NSWCA 308 Para 2

…The line of authority relied upon is well known. The case most frequently cited is Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 where Powell J stated: It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets…
Kowalski v Public Trustee
[2011] QSC 323 Para 6

…Ors v Laursen [2009] QSC 30 at [17] and applied by McMeekin J (in the context of a hearing following settlement) in Kowalski v Public Trustee & Ors [2011] QSC 323 at [66]. I could not find authority in the Queensland Court of Appeal on the matter. In those circumstances, I follow the decision in Bladwell .…
Atthow v McElhone
[2010] QSC 177 Para 7

…comprise an abuse of process varies from case to case. A well-known example in this area of the law is Applegarth J’s decision in Atthow v McElhone [2010] QSC 177. In that case, his Honour reviewed the evidence on an application for summary dismissal and held: [28] Even assuming relevant factual disputes would be…
Laursen v Laursen
[2009] QSC 30 Para 6

…Bryson JA’s conclusion was cited with approval by Jones J in Laursen & Ors v Laursen [2009] QSC 30 at [17] and applied by McMeekin J (in the context of a hearing following settlement) in Kowalski v Public Trustee & Ors [2011] QSC 323 at [66]. I could not find authority in the Queensland Court of Appeal on the ma…
Sellars v Maeyke
[2005] QSC 368 Para 11

…) might be dismissed on a General Steel basis, and to do so might be thought to inappropriately confine the scope of that power. [1] Sellars v Maeyke [2005] QSC 368 at [37]-[39]; Atthow v McElhone [2010] QSC 177 at [19].…
Newberry v Suncorp Metway Insurance Ltd
[2005] QSC 210 Para 5

…In Higgins v Higgins [2005] QSC 210, White J dealt with the issue in this way: [9] Mr D Mullins SC for Douglas submitted that Malcolm’s claim is so weak that it ought to be struck out before the assets of the estate are further eroded by embarking on mediation and, if unsuccessful, a hearing. Mr O’Neill for Malco…
Bladwell v Davis
[2004] NSWCA 170 Para 4

…lication must be determined on its particular facts. Those cases do not stand for a binding principle of applicable in all cases. In Bladwell v Davis [2004] NSWCA 170, the New South Wales Court of Appeal decisively rejected the suggestion of primacy of the widow as an inevitable constraint on the discretion conferr…
Cropley v Cropley
[2002] NSWSC 349 Para 3

…The executors also relied on Cropley v Cropley [2002] NSWSC 349 at [56], where Barrett J observed: When it comes to claims by adult children, it can be said at once that, if there is a competing claim by the widow and all claims cannot be fully accommodated, the widow’s claim should be afforded precedence in the se…
Singer v Berghouse
[1994] HCA 40 Para 1

…mination of an application under s. 41(1) is well established. It is necessary to apply the two-stage approach described in Singer v Berghouse (No 2) (1994) 181 CLR 201 at 208-210 where the majority held: The first stage calls for a determination of whether the applicant has been left without adequate provision for h…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69

…QSC 177 Bladwell v Davis [2004] NSWCA 170 Singer v Berghouse (No 2) (1994) 181 CLR 201 Cropley v Cropley [2002] NSWSC 349 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Higgins v Higgins [2005] QSC 210 Kowalski v Public Trustee & Ors [2011] QSC 323 Laursen & Ors v Laursen [2009] QSC 30 Luciano v Rosenblum (1985) 2 NSWLR 65 Sellars v…
Ellis v Leeder
[1951] HCA 44 Para 1

…applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder ((9) [1951] HCA 44; (1951) 82 CLR 645), where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to p…
Dey v Victorian Railways Commissioners
[1949] HCA 1 Para 5

…ment of Barwick CJ in General Steel at 129 referring with approval to observations by Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 continues to provide guidance as to the proper approach to an application to dismiss proceedings summarily. After extracting some expressions fro…
Luciano v Rosenblum
42 ER 115

…125 Higgins v Higgins [2005] QSC 210 Kowalski v Public Trustee & Ors [2011] QSC 323 Laursen & Ors v Laursen [2009] QSC 30 Luciano v Rosenblum (1985) 2 NSWLR 65 Sellars v Maeyke [2005] QSC 368 COUNSEL: SOLICITORS: D J Topp for the applicant (respondent on this application) C A Brewer for the respondents (applicants on this ap…

Legislation cited in this decision · 8

Supreme Court Act 1991 (Qld)
118D(1), 118D(2), 118E 4 mentions (from Para 5)
Succession Act 1981 (Qld)
41, 44 3 mentions (from Para 1)
District Court Act 1967 (Qld)
69 2 mentions (from Para 6)
Family Provision Act 1982 (NSW)
1 mention (from Para 4)
Judicature Act 1876 (Qld)
1 mention (from Para 5)
Statutory Instruments Act 1992 (Qld)
12 1 mention (from Para 5)
Supreme Court Act 1995 (Qld)
1 mention (from Para 5)
Uniform Civil Procedure Rules 1999 (Qld)
5 1 mention

CITATION:	Charlesworth v Griffiths & Anor [2018] QDC 115
PARTIES:	SARAH JANE CHARLESWORTH (Applicant/Respondent) V REBECCA LEAH GRIFFITHS (First Respondent/Applicant) AND JESSICA JANE LYDIARD (Second Respondent/Applicant)
FILE NO/S:	DC No 1186 of 2018
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	21 June 2018
DELIVERED AT:	Brisbane
JUDGE:	Porter QC DCJ
ORDER:	1. The application be dismissed; 2. The respondents (in the originating application) pay the costs of the applicant (in the originating application) of the application on an indemnity basis; 3. It is declared that the respondents are entitled to indemnity from the assets of the estate in respect of the costs of the applicant ordered in order 2 and the costs of the respondents of the application; 4. Any order for mediation of the matter be vacated; 5. The applicant file any further material by 29 June 2018; 6. The respondents file any further material by Monday 16 July 2018; 7. The matter be set down for trial for one day on 10 August 2018.
CATCHWORDS:	SUCCESSION – ADMINISTRATION OF ESTATE – DISTRIBUTION – where there is an application under s. 41(1) Succession Act 1981 (Qld) for further provision from the estate – whether the applicant has been left without adequate provision for her proper maintenance – whether provision ought to be made out of the deceased’s estate for the applicant. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where the executors of the estate apply for summary dismissal of the application – where the court has inherent jurisdiction to prevent abuse of its processes by the bringing of untenable claims – where the Court has equivalent jurisdiction, at the least arising under s. 69 District Court Act 1967 (Qld) – whether the application should be summarily dismissed. Legislation Succession Act 1981 (Qld) ss. 41, 44 District Court Act 1967 (Qld) s. 69 Uniform Civil Procedure Rules 1999 (Qld) r. 5 Cases Atthow v McElhone [2010] QSC 177 Bladwell v Davis [2004] NSWCA 170 Singer v Berghouse (No 2) (1994) 181 CLR 201 Cropley v Cropley [2002] NSWSC 349 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Higgins v Higgins [2005] QSC 210 Kowalski v Public Trustee & Ors [2011] QSC 323 Laursen & Ors v Laursen [2009] QSC 30 Luciano v Rosenblum (1985) 2 NSWLR 65 Sellars v Maeyke [2005] QSC 368
COUNSEL: SOLICITORS:	D J Topp for the applicant (respondent on this application) C A Brewer for the respondents (applicants on this application) Robbins Watsons Solicitors for the applicant (respondent on this application) Parsons Law for the respondents (applicants on this application)