SUPREME COURT OF QUEENSLAND
CITATION:
Chesney & Anor v Tognola & Anor [2011] QSC 340
PARTIES:
SANDRA WINNIFRED THELMA CHESNEY
(first applicant)
PATRICK NEIL BOLGER
(second applicant)
and
BARRY JAMES TOGNOLA (as executor of the will of ESTELLE PATRICIA BOLGER deceased)
(first respondent)
DAVID ROBERT GLASGOW (as executor of the will of ESTELLE PATRICIA BOLGER deceased)
(second respondent)
FILE NO/S:
BS738/10
DIVISION:
Trial
PROCEEDING:
Application
DELIVERED ON:
21 November 2011
DELIVERED AT:
Supreme Court, Brisbane
HEARING DATE:
13 July 2011
JUDGE:
Douglas J
ORDER:
Application dismissed.
CATCHWORDS:
SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATORS – where application for removal of executors – where relationship between executors and a son of deceased person – where related proceedings on foot – where executors likely to be called upon to give evidence in other proceedings regarding impugned share transactions – where no evidence suggestive of executors’ inability to fulfil duties as executors – whether conflict exists between executors’ interests and duties – where overriding object of power to remove executors is due and proper administration of estate – whether court’s discretion pursuant to s 6 of the Succession Act 1981 (Qld) ought be exercised
Succession Act 1981 (Qld), s 6
Baldwin v Greenland [2007] 1 Qd R 117 cited
Gowans v Watkins, Supreme Court of Victoria, No. 6131 of 1995, Teague J, 21 February 1996, BC9601257, unreported cited
Monty Financial Services Ltd v Delmo [1996] 1 VR 65 cited
Williams v Williams [2005] 1 Qd R 105 referredCOUNSEL:
R N Traves SC with C K George for the applicants
A J Moon for the respondentsSOLICITORS:
Emanate Legal for the applicants
Roberts Nehmer McKee for the respondents
Douglas J: This is an application to remove the executors of the will of Estelle Patricia Bolger and to appoint a solicitor in their stead with a limited grant of administration of the estate under the court’s powers pursuant to s 6 of the Succession Act 1981 (Qld).[1] The rationale for the application stems from the relationship between the executors and a son of the deceased, Terrance Bolger. They were his professional advisors as his solicitor and accountant and, on the evidence, close friends.
[1]See Williams v Williams [2005] 1 Qd R 105, 108-109 at [12] – [13]
Background
The applicants, Sandra Chesney and Patrick Bolger, are Terrance Bolger’s sister and brother. They are parties to proceedings requiring the proof in solemn form of their mother’s will executed in 2009. They are also applicants in a separate application for further provision from their mother’s estate and in a third proceeding where they seek to set aside three share transactions made between 1996 and 1998 by which the deceased transferred shares, said to be then worth more than $9 million dollars, in a company called Over-Nite Holdings Pty Ltd to Terrance Bolger. Over-Nite Holdings is a company established and managed by Mr Frank Bolger, the husband of the deceased, and the deceased. After Frank Bolger’s death the evidence suggest the…
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- AGLC
- Chesney v Tognola [2011] QSC 340
- Case
- [2011] QSC 340
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether a conflict of interest existed that warranted the removal of the executors. It had to consider whether the respondents were likely to be called upon to give evidence in other proceedings and, if so, whether this created an irremovable conflict. The court also needed to assess whether there was any evidence suggesting that the executors were unable to fulfill their duties properly. Ultimately, the court had to decide whether, in the exercise of its discretion under section 6 of the Succession Act 1981 (Qld), the executors should be removed.
The court found that there was no evidence to suggest that the executors were unable to fulfil their duties. It held that the mere fact that the executors might be called to give evidence in other proceedings did not, by itself, create an irremovable conflict of interest. The overriding objective of the court in cases of this nature was the due and proper administration of the estate. The court concluded that there was no conflict of interest that necessitated the removal of the executors. Therefore, the application was dismissed.
Orders
Orders of the court
Application dismissed.
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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