Cranitch v Cranitch - [2019] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION:

Cranitch v Cranitch & Ors [2019] QSC 42

PARTIES:

CARMEL GRACE CRANITCH

(applicant)

v
CATHERINE RUTH CRANITCH AS THE EXECUTOR OF THE ESTATE OF MARGARET CRANITCH, DECEASED

(first respondent)

CATHERINE RUTH CRANITCH

(second respondent)

THOMAS ANTHONY CRANITCH, PETER JAMES CRANITCH, MARGARET MARY CRANITCH, MARY THERESE CRANITCH, FRANCES MARY PUTS, LEONARD THOMAS JOSPEH CRANITCH, MATTHEW LAWRENCE CRANITCH AND CAITLIN CRANITCH

(third respondents)

FILE NO/S:

No 1321 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

1 March 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2019

JUDGE:

Davis J

ORDER:

(a) I declare that:

(i)    the second respondent did not duly exercise the option to purchase the property situated at 104 Jubilee Terrace, Bardon contained in clause 6 of the will of the deceased; and

(ii)     the property at 104 Jubilee Terrace, Bardon forms part of the deceased’s residuary estate to be distributed pursuant to the provision of clause 4.2 of the will.

(b)   I will hear the parties on the question of costs.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITION – TESTAMENTARY DISPOSITIONS GENERALLY – OPTIONS AND RIGHTS OF CHOICE OR PRE-EMPTION – whether the testamentary option was exercised within time – whether the testamentary option was properly exercised

Allardyce v Roebuck [2004] 3 All ER 754, cited
Hyde v Wrench (1840) ER 132, cited
Legione v Hateley (1983) 152 CLR 406, cited
O’Neill v O’Connell (1946) 72 CLR 101, cited
Re Chilcott; Chilcott v Chilcott [1971] TasSR 230, cited
Re Gardiner (deceased);Gardiner v Gardiner [1971] 2 NSWLR 494, cited
Re Gray (deceased); [2004] 3 All ER 754, cited

The Perpetual Executors and Trustees Association of Australia Ltd v Commissioner of Probate Duties [1981] VR 91, cited

COUNSEL:

R T Whiteford for the applicant

R Cumming for the first respondent

SOLICITORS:

CRH Law for the applicant

Carthew Chau & Co for the first respondent

By her last will, Margaret Cranitch (Margaret) gave her daughter, Catherine Ruth Cranitch (Catherine) an option to purchase her property at 104 Jubilee Terrace, Bardon (the house). Catherine has purported to exercise the option but another of Margaret’s daughters, Carmel Grace Cranitch (Carmel) seeks:
“Pursuant to Section 6 Succession Act 1981[1] declarations that, upon the proper construction of the Will of Margaret Cranitch deceased dated 25 March 2011 and in the events which have occurred:
(a)the Second Respondent[2] did not duly exercise the option to purchase the property situated at 104 Jubilee Terrace, Bardon contained in clause 6 of the said Will of the deceased; and
(b)the property at 104 Jubilee Terrace, Bardon forms part of the deceased’s residuary Estate to be distributed pursuant to the provision of clause 4.2 of the said Will.”
[1] Which expressly grants jurisdiction to the Court to hear and determine “testamentary matters”.
[2] Catherine.
The terms of the will
Margaret appointed Catherine and one of her sons, Patrick John Cranitch (Patrick) as her executors and trustees. Patrick pre-deceased Margaret so probate of the will was granted to…

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 Cranitch v Cranitch

Details

AGLC: Cranitch v Cranitch [2019] QSC 42
Case: [2019] QSC 42
Decision Date: 1 March 2019

CaseChat Overview and Summary

In the case of Cranitch v Cranitch, the Queensland Supreme Court was asked to determine whether the second respondent had validly exercised a testamentary option to purchase a property from the estate of the deceased. The dispute arose from the interpretation and execution of the deceased's will, specifically clause 6, which provided the second respondent with an option to purchase the property at 104 Jubilee Terrace, Bardon. The central legal issues concerned whether the option was exercised within the time frame specified in the will and whether it was properly executed according to the terms outlined.

The court found that the will required the second respondent to make a one-time decision to exercise the option, and it did not allow for multiple decisions over the stipulated period. The second respondent's conditional acceptance of the option was deemed a counter-offer, and as such, it did not constitute a valid exercise of the option. Additionally, the court held that even if the option had been validly exercised, it did not occur before the deadline of 28 January 2019, which was two months from the date the second respondent could have set the price. The court relied on the principle from Hyde v Wrench, where a conditional acceptance was treated as a rejection of the original offer and a counter-offer.

Consequently, the court declared that the second respondent did not duly exercise the option to purchase the property. As a result, the property at 104 Jubilee Terrace, Bardon forms part of the deceased’s residuary estate, to be distributed in accordance with clause 4.2 of the will. The court further noted that the issue of costs would be heard separately, indicating that the parties would need to present their arguments on this matter.

Orders

Orders of the court

(a) I declare that:

(i) the second respondent did not duly exercise the option to purchase the property situated at 104 Jubilee Terrace, Bardon contained in clause 6 of the will of the deceased; and

(ii) the property at 104 Jubilee Terrace, Bardon forms part of the deceased’s residuary estate to be distributed pursuant to the provision of clause 4.2 of the will.

(b) I will hear the parties on the question of costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The contract is now unconditional, but that doesn’t matter for two reasons. Firstly, the will on its proper construction put Catherine to her election; a one off opportunity to accept the option and it does not contemplate Catherine having a right to make different decisions over that two month period. The conditional acceptance was in reality a counter offer.[19] She did not unconditionally accept the option and has therefore lost the right. Secondly, even if it could be said that the option was validity exercised when the contract became unconditional as to finance, there is no evidence that occurred before 28 January 2019, being two months from the latest date that Catherine could have set on the price. [19] Hyde v Wrench (1840) 49 ER 132.Conclusions Mr Cumming did not submit that the terms of the declarations sought were inappropriate in the event that I concluded that the option has not been properly exercised by Catherine. The orders are:(a)I declare that:(i) the second respondent did not duly exercise the option to purchase the property situated at 104 Jubilee Terrace, Bardon contained in clause 6 of the will of the deceased; and (ii) the property at 104 Jubilee Terrace, Bardon forms part of the deceased’s residuary estate to be distributed pursuant to the provision of clause 4.2 of the will.(b)I will hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cranitch v Cranitch & Ors [2019] QSC 42
PARTIES:	CARMEL GRACE CRANITCH (applicant) v CATHERINE RUTH CRANITCH AS THE EXECUTOR OF THE ESTATE OF MARGARET CRANITCH, DECEASED (first respondent) CATHERINE RUTH CRANITCH (second respondent) THOMAS ANTHONY CRANITCH, PETER JAMES CRANITCH, MARGARET MARY CRANITCH, MARY THERESE CRANITCH, FRANCES MARY PUTS, LEONARD THOMAS JOSPEH CRANITCH, MATTHEW LAWRENCE CRANITCH AND CAITLIN CRANITCH (third respondents)
FILE NO/S:	No 1321 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	1 March 2019
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2019
JUDGE:	Davis J
ORDER:	(a) I declare that: (i) the second respondent did not duly exercise the option to purchase the property situated at 104 Jubilee Terrace, Bardon contained in clause 6 of the will of the deceased; and (ii) the property at 104 Jubilee Terrace, Bardon forms part of the deceased’s residuary estate to be distributed pursuant to the provision of clause 4.2 of the will. (b) I will hear the parties on the question of costs.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITION – TESTAMENTARY DISPOSITIONS GENERALLY – OPTIONS AND RIGHTS OF CHOICE OR PRE-EMPTION – whether the testamentary option was exercised within time – whether the testamentary option was properly exercised Allardyce v Roebuck [2004] 3 All ER 754, cited Hyde v Wrench (1840) ER 132, cited Legione v Hateley (1983) 152 CLR 406, cited O’Neill v O’Connell (1946) 72 CLR 101, cited Re Chilcott; Chilcott v Chilcott [1971] TasSR 230, cited Re Gardiner (deceased);Gardiner v Gardiner [1971] 2 NSWLR 494, cited Re Gray (deceased); [2004] 3 All ER 754, cited The Perpetual Executors and Trustees Association of Australia Ltd v Commissioner of Probate Duties [1981] VR 91, cited
COUNSEL:	R T Whiteford for the applicant R Cumming for the first respondent
SOLICITORS:	CRH Law for the applicant Carthew Chau & Co for the first respondent