Chesney v Tognola

[2011] QSC 340

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 referred

COUNSEL:

R N Traves SC with C K George for the applicants
A J Moon for the respondents

SOLICITORS:

Emanate Legal for the applicants
Roberts Nehmer McKee for the respondents

1. 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

1. 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…