Curran v McGrath

[2010] QSC 172

SUPREME COURT OF QUEENSLAND

CITATION:

Curran & Ors v McGrath [2010] QSC 172

PARTIES:

JANET ROBERTA CURRAN

Applicant

KATHRYN ANN CHAMBEYRON

Applicant

MARIA CYNTHIA BROWN

Applicant

EVELYN MARY PINNINGTON

Applicant

And

JOHN CHARLES MCGRATH AND ROBERT CLIVE MCGRATH

AS EXECUTORS OF THE ESTATE OF THE LATE CECIL ROBERT MCGRATH

Respondents

FILE NO/S:

149/08, 150/08, 151/08 and 153/08

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Mackay

DELIVERED ON:

7 May 2010

DELIVERED AT:

Supreme Court Rockhampton

HEARING DATE:

22 April 2010

JUDGE:

McMeekin J

ORDER:

1. The application for an extension in time within which to bring the applications is refused;

2. Each of the applications for further and better provision out of the estate is dismissed;

3. The applicants to pay the respondents’ costs of and incidental to the applications on the standard basis.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – where applications made out of time – where applications made to extend time within which to apply for further and better provision out of estate – where distribution of estate complete – where substantial delay – whether acceptable explanation for delay – whether it would be substantially unjust to permit the applications to proceed

Succession Act 1981 (Qld), s 41, s 59(1)

Baker v Williams & Brunner [2007] QSC 226

Bird v Bird [2002] QSC 202

Hills v Chalk [2008] QCA 159

Re Donkin (deceased);Riechelmann v Donkin [1966] Qd R 96

Holdaway v Arcuri Lawyers(a firm) [2008] QCA 218

Re Lago [1984] VR 706

ReMcPherson [1987] 2 Qd R 394

COUNSEL:

G.R. Coveney for the applicants

G.F. Crow for the respondents

SOLICITORS:

Beckey, Knight & Elliott for the applicants

Macrossan & Amiet for the respondents

[1]      McMeekin J: The applicants seek further and better provision out of the estate of their late father Cecil Robert McGrath pursuant to Part 4 of the Succession Act 1981 (Qld) (“the Act”). The applications were not brought within nine months of the death of the deceased. Section 41(8) of the Act provides:

“Unless the court otherwise directs, no application shall be heard by the court at the instance of a party claiming the benefit of this part unless the proceedings for such application be instituted within 9 months after the death of the deceased…”

[2]      The parties have sought a preliminary determination of the question of whether the applications should be heard at all given that they have been brought late.

[3]      That question involves the exercise of a discretion. In Hills v Chalk [2008] QCA 159 Muir JA identified several matters as being relevant to the exercise of that discretion. Those matters were:

(a)        Whether there is an adequate explanation for delay;

(b)        Whether there would be any prejudice to the beneficiaries;

(c)        Whether there has been any unconscionable conduct by the applicants;

(d)        The strength of the applicant’s case.[1]

[1] At [75].

A Preliminary Point

[4]      Before turning to those discretionary issues the respondents raise a…