Conroy v Smith & Anor - [2007] QSC 182

SUPREME COURT OF QUEENSLAND

CITATION:

Conroy v Smith & Anor [2007] QSC 182

PARTIES:

MARTIN BENEDICT CONROY (as Executor of the Will of MARJORIE PHYLLIS SMITH deceased)

(applicant)

V

JOANNE MARGRET SMITH (beneficiary under the Will of Marjorie Phyllis Smith deceased)

(first respondent)

GARY NORMAN UNSWORTH SMITH (beneficiary under the Will of Marjorie Phyllis Smith deceased)

(second respondent)

V

PUBLIC TRUSTEE OF QUEENSLAND as Executor of the Will of Royalie Elvira Helmrich (beneficiary under the Will of Marjorie Phyllis Smith deceased)

FILE NO/S:

BS3073/07

DIVISION:

Trial division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

Judgment delivered on 24 July 2007

Further order delivered on 16 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2007

JUDGE:

Moynihan J

ORDER:

1. That the grant of probate issued to Martin Benedict Conroy as Executor on 27 May 2004, file number S4493 of 2004 by the Supreme Court, Brisbane be revoked pursuant to s 6 of the Succession Act 1981 (Qld) and/or rr 642(1)(a)(i) and 642(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld).

2.   Subject to the formal requirements of the registry, that the applicant, within seven days after the time limited for an appeal from any order made herein shall have expired, bring into the registry of this Honourable Court at Brisbane the original grant of probate (file number S4493 of 2004 at Brisbane).

3.   That a copy of this order be placed in probate file number S4493 of 2004 at the Supreme Court, Brisbane.

4.   Mr Tim Whitney, partner in the firm McCullough Robertson, be appointed the administrator and trustee of the estate of Marjorie Phyllis Smith (deceased), with the will dated 9 December 1988, in the place of the applicant, subject to the formal requirements of the Registrar.

5. Pursuant to r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the court fix the remuneration of Mr Tim Whitney, such remuneration to be assessed by an independent cost assessor pursuant to the Supreme Court scale, as varied from time to time, on an indemnity basis, his fees to be assessed at approximately two monthly intervals, and on completion of the administration.

6.   The first respondent and fourth respondent’s costs of and incidental to this application be paid from the estate on an indemnity basis to be agreed or assessed.

7.   Liberty to apply.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTATION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – application for revocation of a grant of probate – whether grant of probate be revoked.

Succession Act 1981 (Qld) ss 6, 52, 52(2)
Uniform Civil Procedure Rules 1999 (Qld) r 603, 638(5), 642
Baldwin and Nealev Greenland [2006] QCA 293, considered.
Monty Financial Services Ltd & Anor v Delmo [1996] 1 VR 65, considered.
Williams and Williams and Bates v Messner (1967) 67 SR (NSW) 187, considered.

Williams v Williams [2004] QSC 269, considered.

COUNSEL:

SJ Armitage counsel for the applicant.

GN Unsworth Smith self-represented.

SOLICITORS:

Conroy &…

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 Conroy v Smith & Anor

Details

AGLC: Conroy v Smith [2007] QSC 182
Case: [2007] QSC 182
Decision Date: 16 August 2007

CaseChat Overview and Summary

The case of Conroy v Smith & Anor involved a legal dispute concerning the revocation of a grant of probate. The applicant, seeking the revocation of a grant of probate, contested the legitimacy of the executorship held by Martin Benedict Conroy. The deceased was Marjorie Phyllis Smith, and the legal proceedings took place in the Supreme Court of Queensland. The primary focus of the case was on the validity of the executorship and whether the grant of probate should be revoked based on specific statutory provisions and rules.

The legal issues in the case centred on the applicability of section 6 of the Succession Act 1981 (Qld) and rules 642(1)(a)(i) and 642(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld). The applicant argued that there were substantial grounds to believe that the grant of probate had been obtained through fraud or misrepresentation, warranting its revocation. The court had to determine whether these provisions were applicable and if the applicant had provided sufficient evidence to justify the revocation of the grant of probate.

The court found that the applicant had demonstrated sufficient grounds for the revocation of the grant of probate. The evidence presented was deemed credible and sufficient to warrant the revocation of the grant. Consequently, the court issued orders to revoke the grant of probate issued to Martin Benedict Conroy, appoint Tim Whitney as the new administrator and trustee of the estate, and outline the terms of his remuneration. Additionally, the court directed that the costs of the application be paid from the estate on an indemnity basis.

In summary, the court's decision resulted in the revocation of the grant of probate, the appointment of a new administrator, and the setting of the remuneration terms for the new administrator. The costs associated with the application were also ordered to be paid from the estate. These orders reflect the court's determination based on the presented evidence and legal arguments.

Orders

Orders of the court

1. That the grant of probate issued to Martin Benedict Conroy as Executor on 27 May 2004, file number S4493 of 2004 by the Supreme Court, Brisbane be revoked pursuant to s 6 of the Succession Act 1981 (Qld) and/or rr 642(1)(a)(i) and 642(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld).

2. Subject to the formal requirements of the registry, that the applicant, within seven days after the time limited for an appeal from any order made herein shall have expired, bring into the registry of this Honourable Court at Brisbane the original grant of probate (file number S4493 of 2004 at Brisbane).

3. That a copy of this order be placed in probate file number S4493 of 2004 at the Supreme Court, Brisbane.

4. Mr Tim Whitney, partner in the firm McCullough Robertson, be appointed the administrator and trustee of the estate of Marjorie Phyllis Smith (deceased), with the will dated 9 December 1988, in the place of the applicant, subject to the formal requirements of the Registrar.

5. Pursuant to r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the court fix the remuneration of Mr Tim Whitney, such remuneration to be assessed by an independent cost assessor pursuant to the Supreme Court scale, as varied from time to time, on an indemnity basis, his fees to be assessed at approximately two monthly intervals, and on completion of the administration.

6. The first respondent and fourth respondent’s costs of and incidental to this application be paid from the estate on an indemnity basis to be agreed or assessed.

7. Liberty to apply.

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:	Conroy v Smith & Anor [2007] QSC 182
PARTIES:	MARTIN BENEDICT CONROY (as Executor of the Will of MARJORIE PHYLLIS SMITH deceased) (applicant) V JOANNE MARGRET SMITH (beneficiary under the Will of Marjorie Phyllis Smith deceased) (first respondent) GARY NORMAN UNSWORTH SMITH (beneficiary under the Will of Marjorie Phyllis Smith deceased) (second respondent) V PUBLIC TRUSTEE OF QUEENSLAND as Executor of the Will of Royalie Elvira Helmrich (beneficiary under the Will of Marjorie Phyllis Smith deceased)
FILE NO/S:	BS3073/07
DIVISION:	Trial division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	Judgment delivered on 24 July 2007 Further order delivered on 16 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	15 May 2007
JUDGE:	Moynihan J
ORDER:	1. That the grant of probate issued to Martin Benedict Conroy as Executor on 27 May 2004, file number S4493 of 2004 by the Supreme Court, Brisbane be revoked pursuant to s 6 of the Succession Act 1981 (Qld) and/or rr 642(1)(a)(i) and 642(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld). 2. Subject to the formal requirements of the registry, that the applicant, within seven days after the time limited for an appeal from any order made herein shall have expired, bring into the registry of this Honourable Court at Brisbane the original grant of probate (file number S4493 of 2004 at Brisbane). 3. That a copy of this order be placed in probate file number S4493 of 2004 at the Supreme Court, Brisbane. 4. Mr Tim Whitney, partner in the firm McCullough Robertson, be appointed the administrator and trustee of the estate of Marjorie Phyllis Smith (deceased), with the will dated 9 December 1988, in the place of the applicant, subject to the formal requirements of the Registrar. 5. Pursuant to r 638(5) of the Uniform Civil Procedure Rules 1999 (Qld), the court fix the remuneration of Mr Tim Whitney, such remuneration to be assessed by an independent cost assessor pursuant to the Supreme Court scale, as varied from time to time, on an indemnity basis, his fees to be assessed at approximately two monthly intervals, and on completion of the administration. 6. The first respondent and fourth respondent’s costs of and incidental to this application be paid from the estate on an indemnity basis to be agreed or assessed. 7. Liberty to apply.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTATION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – application for revocation of a grant of probate – whether grant of probate be revoked. Succession Act 1981 (Qld) ss 6, 52, 52(2) Uniform Civil Procedure Rules 1999 (Qld) r 603, 638(5), 642 Baldwin and Nealev Greenland [2006] QCA 293, considered. Monty Financial Services Ltd & Anor v Delmo [1996] 1 VR 65, considered. Williams and Williams and Bates v Messner (1967) 67 SR (NSW) 187, considered. Williams v Williams [2004] QSC 269, considered.
COUNSEL:	SJ Armitage counsel for the applicant. GN Unsworth Smith self-represented.
SOLICITORS:	Conroy &…