Curran v McGrath

[2010] QCA 308

SUPREME COURT OF QUEENSLAND

CITATION:

Curran & Ors v McGrath & Anor [2010] QCA 308

PARTIES:

JANET ROBERTA CURRAN
&
KATHRYN ANN CHAMBEYRON
&
MARIA CYNTHIA BROWN
&
EVELYN MARY PINNINGTON
(applicants/appellants)
v
JOHN CHARLES MCGRATH
&
ROBERT CLIVE MCGRATH
AS EXECUTORS OF THE ESTATE OF THE LATE
CECIL ROBERT MCGRATH
(respondents/respondents)

FILE NO/S:

Appeal No 5767 of 2010
SC No 149 of 2008
SC No 150 of 2008
SC No 151 of 2008
SC No 153 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

5 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 October 2010

JUDGES:

McMurdo P and Muir and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed with costs

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – primary judge refused appellants’ applications for extension of time under s 41(8) Succession Act 1981 (Qld) – appellants submitted there was an adequate and reasonable explanation for the delay – appellants submitted it was not reasonable to pursue applications whilst other disputes regarding the estate were being resolved – appellants submitted primary judge erred in concluding that the estate assets had been distributed – appellants submitted their claims were meritorious and the beneficiaries suffered no prejudice – whether primary judge erred in the exercise of his discretion under s 41(8)

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – APPEALS – appellants submitted respondent executors’ conduct estopped respondents from enforcing time limit under s 41(8) – appellants submitted respondents had a fiduciary obligation to advise the appellants prior to distributing estate assets – respondents submitted estoppel and breach of trust arguments could not be relied upon as they were not raised at first instance – whether court should consider estoppel and breach of trust arguments

Succession Act 1981 (Qld), s 41(1), s 41(8)

Baker v Williams & Brunner (as executors of the estate of Baker) [2007] QSC 226, cited
Bird  v Bird [2002] QSC 202, cited
Blunden v Blunden [2008] SASC 286, cited
Hills v Chalk [2009] 1 Qd R 409; [2008] QCA 159, cited
Holdway v Arcuri Lawyers [2008] QCA 218; [2009] 2 Qd R 18, cited
Re Donkin Deceased; Riechelmann v Donkin [1966] Qd R 96, cited
Re Faulkner [1999] 2 Qd R 49; [1996] QSC 261, considered
Re McPherson [1987] 2 Qd R 394, cited

COUNSEL:

K M Wilson SC, with G Coveney, for the appellants
G F Crow for the respondents

SOLICITORS:

Beckey, Knight & Elliott for the appellants
Macrossan & Amiet Solicitors for the respondents

[1]      McMURDO P:  This appeal should be dismissed with costs for the reasons given by Muir JA.

[2]      MUIR JA:Introduction 

The appellants each appeal against an order of the primary judge made on 7 May 2010 refusing an application for a direction that her application for adequate provision for…