Davies v Davies (No 2) - [2019] QSC 294

SUPREME COURT OF QUEENSLAND

CITATION:

Davies v Davies & Anor (No 2) [2019] QSC 294

PARTIES:

BEVAN ROY DAVIES as Executor of the Estate of ALAN DOUGLAS DAVIES

(applicant)

v
JEANNE LORRAINE DAVIES as Executor of the Estate of NEVILLE BRIAN DAVIES

(first respondent)
MICHAEL DOUGLAS DAVIES in his personal capacity and as Executor of the Estate of ALAN DOUGLAS DAVIES
ELAINE JAN LOUISE FISHER
(second respondents)

FILE NO:

BS No 13463 of 2018

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2019

JUDGE:

Bradley J

ORDER:

1.   Upon the proper construction of the Will of Alan Douglas Davies, deceased, dated 29 January 2010 the following property passes to the first respondent:

a.   Commercial fishing boat licence 120306;

b.   Five dinghies, comprising one aluminium dinghy, two wooden dinghies and two flat bottom wooden dinghies; and

c.   A jet boat, which was not registered at the deceased’s death.

2.   All parties’ costs of this proceeding are to be paid from the estate of Alan Douglas Davies, deceased, on an indemnity basis, save for the costs dealt with by earlier orders in the proceeding.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – ADMISSIBILITY AND USE OF EXTRINSIC EVIDENCE IN AID OF CONSTRUCTION – where the applicant and one of the second respondents are executors of the estate of their father (the deceased) – where a dispute has arisen between the executors as to the proper construction of clause 4.03 of the deceased’s will, which makes special provision for the deceased’s “fishing gear” to pass to one of his sons – where the applicant seeks declarations that the deceased’s commercial fishing boat licence, jet boat and dinghies fall within the scope of the bequest in clause 4.03 – whether declarations to that effect ought to be made

Succession Act 1981 (Qld), s 33C

Allgood v Blake (1873) LR 8 Ex 160, cited
Coorey v George, unreported, Supreme Court of New South Wales, Powell J, 27 February 1986, cited
Fairbairn v Varvaressos (2010) 78 NSWLR 577, applied
Farrelly v Phillips (2017) 128 SASR 502, cited
Marley v Rawlings [2015] AC 129, cited
Muir v Winn [2009] NSWSC 857, applied
Perrin v Morgan [1943] AC 399, cited
Re Fowler, deceased [1963] VR 639, cited
Ritchie v Magree (1964) 114 CLR 173, cited
The Public Trustee of Queensland v Smith [2009] 1 Qd R 26, cited

COUNSEL:

R T Whiteford for the applicant

A C Barlow for the second respondents

SOLICITORS:

Morton & Morton Solicitors for the applicant

Carswell & Company for the second respondents

Alan Douglas Davies (the deceased) died on 3 September 2014. He was survived by four children: Bevan, Neville and Michael Davies and Elaine Fisher. In his will, he made provision that one of his sons, Neville Davies, should have “all of the fishing gear owned by me at…

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 Davies v Davies (No 2)

Details

AGLC: Davies v Davies (No 2) [2019] QSC 294
Case: [2019] QSC 294
Decision Date: 29 November 2019

CaseChat Overview and Summary

Davies v Davies (No 2) was a case brought before the Queensland Supreme Court involving a dispute over the interpretation of a testamentary disposition in the will of Alan Douglas Davies. The applicants, who were also executors of the estate, sought declarations that certain items, including a commercial fishing boat licence, a jet boat, and dinghies, were included in the bequest of the deceased’s "fishing gear" to one of his sons. The dispute arose between the executors regarding the correct interpretation of clause 4.03 of the will.

The central legal issue in this case was whether the items in question fell within the scope of the bequest of the deceased’s "fishing gear". This required the court to consider the admissibility and use of extrinsic evidence to aid in the construction of the will, particularly in determining the testator’s intention. The court had to examine the circumstances under which extrinsic evidence could be used, and whether the items in question were indeed part of the deceased’s "fishing gear" as per the will.

The court found that the extrinsic evidence, including the commercial fishing boat licence and testimony from a friend of the deceased, supported the interpretation that the items in question were indeed part of the deceased’s "fishing gear". The court concluded that the testator’s intention, as gleaned from the evidence, was to include these items in the bequest. Consequently, the court made declarations that the commercial fishing boat licence, the jet boat, and the dinghies were part of the bequest to the specified son.

The court also ordered that the costs of the proceeding were to be paid from the estate of the deceased on an indemnity basis, except for the costs addressed by earlier orders in the proceeding. This ruling ensured that the financial burden of the litigation was borne by the estate, reflecting the court’s view on the distribution of costs in such disputes.

Orders

Orders of the court

1. Upon the proper construction of the Will of Alan Douglas Davies, deceased, dated 29 January 2010 the following property passes to the first respondent:

a. Commercial fishing boat licence 120306;

b. Five dinghies, comprising one aluminium dinghy, two wooden dinghies and two flat bottom wooden dinghies; and

c. A jet boat, which was not registered at the deceased’s death.

2. All parties’ costs of this proceeding are to be paid from the estate of Alan Douglas Davies, deceased, on an indemnity basis, save for the costs dealt with by earlier orders in the proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As Atkinson J observed in The Public Trustee of Queensland v Smith,[12] subsection 33C(3) “continues to allow the admission of extrinsic evidence in the construction of wills in the three circumstances which obtained prior to the introduction” of the provision. Her Honour succinctly identified the three circumstances as the ‘armchair principle’, the ‘equivocation’ exception, and the equitable presumption rule. In the present dispute, the equivocation exception and the equitable presumption have no relevant operation.The extrinsic evidence [12][2009] 1 Qd R 26 at 32 [24].The licence A copy of the commercial fishing boat licence 12036 was tendered. This was the licence held by the deceased at the time of his death. It was issued on 17 April 2012 by the delegate of the Chief Executive under section 49(1)(a) of the Fisheries Act 1994 (Qld) for a period that expired on 1 July 2016. It was the latest iteration of the licence the deceased had held for many years. The Ajax is the primary boat identified, by name, boat mark and length, in the licence. The licence allows only a commercial fisher to use the Ajax.[13] [13]Fisheries Regulation 2008 (Qld), s 247(2). The licence authorised the use of the Ajax in various commercial fishing boat fisheries along most of the Queensland coast.[14] This authorisation operates under a statutory regime.[15] The licence allows the holder to use the Ajax to take fish for trade or commerce in any of the fisheries noted on the licence.[16] It allows the licence holder to use a tender boat – at the same time as the Ajax or independently of it – to take fish for trade or commerce in fisheries L1 and L3.[17] It allows the licence holder to sell fish taken using the licence and to process such fish,[18] and to buy, sell or possess commercial fishing apparatus.[19] It also allows the licence holder to authorise someone else to do any of these things.[20] [14]Fishery areas C1, L1(1), L3(1), M1, N1, N11 and T1 are noted on the licence. Use in those areas is permitted by s 247(3) of the Fisheries Regulation.[15]Fisheries Act 1994 (Qld) and Fisheries Regulation.[16]Fisheries Regulation, s 246(1)(a).[17]s 246(1)(b), (c), s 247(6).[18]s 246(1)(e), (f).[19]s 246(1)(g).[20]s 246(1)(h).Mr Williamson Arthur Williamson, a friend of the deceased, gave evidence at the trial. For most of his working life, the deceased was a commercial fisherman. He and Mr Williamson had worked together as fishermen for 20 or 30 years. The deceased retired in about 2005. Afterwards, he and Mr Williamson were “cut lunch fishermen”, meaning they went out fishing only when the weather was good. They usually fished together two to three times a week. They did this for most of the 12 years or so preceding the deceased’s death. Not long after retiring, the deceased let the commercial registration of the Ajax – his 37 foot fishing trawler – lapse. However, he maintained his commercial fishing boat licence and paid the licensing fees promptly. For a period between 2005 and 2014, the deceased leased the licence to another fisherman, Jimmy Thorburn.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Davies v Davies & Anor (No 2) [2019] QSC 294
PARTIES:	BEVAN ROY DAVIES as Executor of the Estate of ALAN DOUGLAS DAVIES (applicant) v JEANNE LORRAINE DAVIES as Executor of the Estate of NEVILLE BRIAN DAVIES (first respondent) MICHAEL DOUGLAS DAVIES in his personal capacity and as Executor of the Estate of ALAN DOUGLAS DAVIES ELAINE JAN LOUISE FISHER (second respondents)
FILE NO:	BS No 13463 of 2018
DIVISION:	Trial
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2019
JUDGE:	Bradley J
ORDER:	1. Upon the proper construction of the Will of Alan Douglas Davies, deceased, dated 29 January 2010 the following property passes to the first respondent: a. Commercial fishing boat licence 120306; b. Five dinghies, comprising one aluminium dinghy, two wooden dinghies and two flat bottom wooden dinghies; and c. A jet boat, which was not registered at the deceased’s death. 2. All parties’ costs of this proceeding are to be paid from the estate of Alan Douglas Davies, deceased, on an indemnity basis, save for the costs dealt with by earlier orders in the proceeding.
CATCHWORDS:	SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – ADMISSIBILITY AND USE OF EXTRINSIC EVIDENCE IN AID OF CONSTRUCTION – where the applicant and one of the second respondents are executors of the estate of their father (the deceased) – where a dispute has arisen between the executors as to the proper construction of clause 4.03 of the deceased’s will, which makes special provision for the deceased’s “fishing gear” to pass to one of his sons – where the applicant seeks declarations that the deceased’s commercial fishing boat licence, jet boat and dinghies fall within the scope of the bequest in clause 4.03 – whether declarations to that effect ought to be made Succession Act 1981 (Qld), s 33C Allgood v Blake (1873) LR 8 Ex 160, cited Coorey v George, unreported, Supreme Court of New South Wales, Powell J, 27 February 1986, cited Fairbairn v Varvaressos (2010) 78 NSWLR 577, applied Farrelly v Phillips (2017) 128 SASR 502, cited Marley v Rawlings [2015] AC 129, cited Muir v Winn [2009] NSWSC 857, applied Perrin v Morgan [1943] AC 399, cited Re Fowler, deceased [1963] VR 639, cited Ritchie v Magree (1964) 114 CLR 173, cited The Public Trustee of Queensland v Smith [2009] 1 Qd R 26, cited
COUNSEL:	R T Whiteford for the applicant A C Barlow for the second respondents
SOLICITORS:	Morton & Morton Solicitors for the applicant Carswell & Company for the second respondents