Crowley v Crowley (No. 2)

Case [2020] QDC 256

DISTRICT COURT OF QUEENSLAND

CITATION:

Crowley v Crowley (No. 2) [2020] QDC 256

PARTIES:

KELLY CROWLEY

 (applicant)

v

MARION ELAINE CROWLEY (AS EXECUTOR OF
THE ESTATE OF JOHN PATRICK CROWLEY –
DECEASED)

(respondent)

FILE NO/S:

226/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

12 October 2020

DELIVERED AT:

Cairns

HEARING DATE:

2 October 2020, supplementary written submissions received 8 October 2020

JUDGE:

Fantin DCJ

ORDER:

1.   The application is dismissed.

2.   The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – GENERAL PRINICPLES – where final orders were made by the Court giving effect to the compromise of a family provision claim pursuant to s 41 of the Succession Act 1981 (Qld) – where the applicant applies pursuant to rr 667 and 668 of the Uniform Civil Procedure Rules 1999 (Qld) to set aside those final orders – whether the applicant is a person “against whom” the order is made – whether the matters are “facts” for the purposes of r 668 - whether the court should exercise its discretion to set aside the final orders and permit a re-exercise of the discretion under s 41 of the Succession Act 1981 (Qld).

Legislation

Limitation of Actions Act 1974 (Qld) s 35, s 36
Rules of the Supreme Court 1900 (Qld) O 45 r 1
Succession Act 1981 (Qld) s 41
Trusts Act1973 (Qld) s 96
Uniform Civil Procedure Rules 1999 (Qld) r 667, r 668

Cases

Amos v Wiltshire [2016] QCA 77
Australia & New Zealand Banking Group Ltd v Hubner (unreported) Supreme Court of Queensland, Jones J, 6 November 1997
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134
Crime and Misconduct Commission v Bioletti [2006] QSC 159
Crowley v Crowley [2019] QDC 114
Crowther v State of Queensland [2008] QPEC 76
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd [2009] QSC 98
Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2003] QB 679
Haller v Ayre [2005] QCA 224
IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428
Manly v The Public Trusteeof Qld [2008] QCA 198
Rankin v Agen Biochemical Ltd [1999] 2 Qd R 435
Re McIntyre [1993] 2 Qd R 383
Rockett v The Proprietors – “The Sands” BUP 82 [2002] 1 Qd R 307
Stage Club Limited v Millers Hotels Pty Ltd (1981) 150 CLR 535
Stephens v Chee; Chee v CBC Properties (Qld) Pty Ltd in its own capacity and as trustee of the Chee Family Trust & Ors [2015] QSC 269
Stott v Lyons & Anor [2006] QSC 228
Taylor v Johnson (1983) 151 CLR 422
Tutt v Doyle (1997) 42 NSWLR 10
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
Wollongong…

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Details
AGLC
Crowley v Crowley (No. 2) [2020] QDC 256
Case
[2020] QDC 256
Decision Date

CaseChat Overview and Summary

The case of Crowley v Crowley (No. 2) involved a legal dispute concerning the final orders made by the Court, which gave effect to a compromise of a family provision claim under section 41 of the Succession Act 1981 (Qld). The applicant sought to set aside these final orders, citing grounds under rules 667 and 668 of the Uniform Civil Procedure Rules 1999 (Qld). The central issue before the court was whether the applicant qualified as a person "against whom" the order was made, as well as whether the matters in question were "facts" within the meaning of rule 668. Additionally, the court needed to determine whether it should exercise its discretion to set aside the final orders and allow for a re-exercise of the discretion under section 41 of the Succession Act 1981 (Qld).

The court's reasoning focused on the interpretation of the relevant rules and statutes. It held that the applicant did not meet the criteria of being a person "against whom" the order was made, as the final orders were not adverse to the applicant but rather a result of a compromise agreement. The court also concluded that the matters in question did not fall under the category of "facts" as defined in rule 668, as they pertained to the exercise of the court's discretion under the Succession Act rather than factual findings. Therefore, the court declined to exercise its discretion to set aside the final orders, affirming the compromise as a valid resolution of the family provision claim.

In dismissing the application, the court also ordered the applicant to pay the respondent's costs of and incidental to the application. These costs were to be assessed on the standard basis, reflecting the court's decision to uphold the final orders and deny the applicant's request for relief. This outcome underscores the importance of adhering to the procedural requirements and statutory frameworks when seeking to challenge final orders in family law matters.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.

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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