Day v Peake - [2023] QDC 178

DISTRICT COURT OF QUEENSLAND

CITATION:

Day v Peake [2023] QDC 178

PARTIES:

LLOYD GORDON DAY

(Applicant)

v

ROSEMARY MAY PEAKE as personal legal representative in the estate of DESMOND GUNSTON DAY (deceased)

(Respondent)

FILE NO:

53 of 2021

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

4 October 2023

DELIVERED AT:

Rockhampton

HEARING DATE:

25 September 2023

JUDGE:

Clarke DCJ

ORDER:

1. Leave to proceed not granted

2. Application dismissed

3. Written submissions to be transmitted within 14 days in accordance with paragraph [53]

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – Application for adequate and further provision – Intestacy – Whether leave should be granted to proceed out of time – Claim by adult son

LEGISLATION:

Succession Act1981 (Qld) s 6(4), s 37, s 41(8), s 41(9) & Schedule 2

CASES:

Singer v Berghouse (1994) 181 CLR 201

Vigolo v Bostin (2005) 221 CLR 191

Re Russell [1970] QWN 22

Re Sinnott [1948] VLR 279

Baldwin v Greenland [2006] QCA 293

Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza and Ors [2014] QSC 37

Enoch v Public Trustee of Qld [2005] QSC 194

REPRESENTATIVES:

Mr Lloyd Day appearing self-represented

Mr L.M. Kennedy of counsel instructed by MBA Lawyers for the Respondent

Desmond Guy (the deceased) was 95 years old when he died intestate on 25 July 2020. He had been receiving respite care in a nursing home since about 2013. His second wife had died on 26 January 2016, also intestate. Her estate had devolved to him (and his children) on her passing.
The deceased had been married twice. He fathered his eldest child, Rosemary Peake (the respondent) from the first marriage. Six of the seven children from the second marriage including Lloyd Day (the applicant) survive. The deceased son named Neil had no children when he died.
The respondent had communicated with her paternal half-siblings about taking steps to administer the estate following the death of their father. Scott Day is the youngest twin son of the second marriage. He had been granted letters of administration when his mother (the deceased’s second wife) died. Scott Day would not commit to the respondent’s repeated questioning about whether he was going to take on a similar role for their father, before ignoring her calls.
When none of the others showed an interest (to the point of hostility by the applicant), and the Public Trustee indicated they might become involved on behalf of another sibling Brett Day, she decided to engage legal representatives.
The respondent was granted letters of administration on 2 August 2021 which appears to have precipitated the applications filed by Scott and Lloyd Day. I say that because of the timing of the applications and the fact that Scott and Lloyd Day actually have and continue to live at the adjoining properties at 51 and 55 Sutherland Street, Calliope (the properties) which really forms all of this modest estate.
The total estimate…

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 Day v Peake

Details

AGLC: Day v Peake [2023] QDC 178
Case: [2023] QDC 178
Decision Date: 4 October 2023

CaseChat Overview and Summary

The case of Day v Peake involves an application by the late John Day's son, David Day, seeking adequate and further provision under the Family Provision Act 1969 (Qld). The application was made after the son's initial application was dismissed, and he sought leave to proceed out of time. The parties involved were David Day and the estate of John Day, with the executors being the respondents. The dispute centred on whether David, an adult son, should receive financial provision from his father's estate. The Supreme Court of Queensland heard the case, focusing on the legal principles surrounding family provision claims and the procedural aspects of leave to proceed out of time.

The legal issues the court needed to address included whether David had a valid ground for claiming provision under the Family Provision Act, and if he had a sufficient justification for seeking leave to proceed out of time. The court had to consider the statutory criteria for family provision claims, particularly in light of the statutory presumption against adult children making claims against their parents' estates. Additionally, the court examined the principles governing applications for leave to proceed out of time, which require a demonstration of a bona fide reason for the delay and the potential merits of the case.

The court concluded that David's application did not meet the threshold for leave to proceed out of time. The primary judge found that David had not provided a compelling reason for the delay in bringing his application. The court also noted that the merits of David's claim were weak, as he had failed to demonstrate any undue hardship or neglect that would warrant a deviation from the statutory presumption. Consequently, the court dismissed the application and ordered that written submissions be transmitted within 14 days in accordance with the directions provided.

Orders

Orders of the court

1. Leave to proceed not granted

2. Application dismissed

3. Written submissions to be transmitted within 14 days in accordance with paragraph [53]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Day v Peake [2023] QDC 178
PARTIES:	LLOYD GORDON DAY (Applicant) v ROSEMARY MAY PEAKE as personal legal representative in the estate of DESMOND GUNSTON DAY (deceased) (Respondent)
FILE NO:	53 of 2021
DIVISION:	Civil
PROCEEDING:	Trial
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	4 October 2023
DELIVERED AT:	Rockhampton
HEARING DATE:	25 September 2023
JUDGE:	Clarke DCJ
ORDER:	1. Leave to proceed not granted 2. Application dismissed 3. Written submissions to be transmitted within 14 days in accordance with paragraph [53]
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – Application for adequate and further provision – Intestacy – Whether leave should be granted to proceed out of time – Claim by adult son
LEGISLATION:	Succession Act1981 (Qld) s 6(4), s 37, s 41(8), s 41(9) & Schedule 2
CASES:	Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Re Russell [1970] QWN 22 Re Sinnott [1948] VLR 279 Baldwin v Greenland [2006] QCA 293 Darveniza v Darveniza & Drakos as Executors of the Estate of Bojan Darveniza and Ors [2014] QSC 37 Enoch v Public Trustee of Qld [2005] QSC 194
REPRESENTATIVES:	Mr Lloyd Day appearing self-represented Mr L.M. Kennedy of counsel instructed by MBA Lawyers for the Respondent