Day v Peake [No 2] - [2023] QDC 200

DISTRICT COURT OF QUEENSLAND

CITATION:

Day v Peake [No 2] [2023] QDC 200

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:

Order

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED ON:

3 November 2023

DELIVERED AT:

Gladstone

HEARING DATE:

On the papers; oral submissions on 1 November 2023

JUDGE:

Clarke DCJ

ORDER:

1. Order made as per draft, as amended

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – Order for vacant possession of estate property - Costs

LEGISLATION:

Civil Proceedings Act 2011 (Qld) s 15

District Court Act 1967 (Qld) ss 68, 69

Uniform Civil Procedure Rules 1999 (Qld) r 658, 681, 700A

Succession Act1981 (Qld) ss 6, 41, 59

Trusts Act 1973 (Qld) ss 5, 96

CASES:

Herrod v Johnston [2013] QCA 184, cited

Sochorova v Commonwealth of Australia [2012] QCA 152, cited

Fenton-Anderson & Anor v Power & Anor (No 3) [2020] QDC 317, considered

Lorenz v McGreevy & Anor [2022] QDC 212, considered

REPRESENTATIVES:

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

On 4 October 2023 orders were made where the application for further provision was dismissed, not having been granted leave to proceed out of time.[1] At the time of judgment delivery, I invited submissions about the issues raised at paragraph [53] of the reasons for decision, including as to costs. There has been no effort by the unsuccessful applicant to make further submissions.
[1] See Day v Peake [2023] QDC 178.
The further orders required only relate to compelling Lloyd Day to vacate the estate properties, and as to costs. Accordingly, there is no need for orders to address the issues at points 2 – 8 inclusive of paragraph [53] of the original judgment.
Order for vacant possession
The respondent, as personal representative of her late father’s estate, has the legal power to dispose of the estate properties, relying on the provisions in the Succession Act 1981 (Qld) and Trusts Act 1973 (Qld). The respondent relevantly confirms that following the determination made on 4 October, there is no application for administration of the estate.
The issue about the limited power this court has to make orders to in respect of trust and succession matters has been the subject of previous consideration by other judges of this court. In Fenton-Anderson & Anor v Power & Anor (No 3)[2] Porter KC DCJ confirmed that only the Supreme Court enjoyed the grant of general jurisdiction in estate matters by s 6 of the Succession Act 1981 (Qld). I am respectfully persuaded to agree with his Honour’s finding that the various specific provisions in s 68 of the District Court Act 1967 (Qld) (and on reliance upon the conferred power in s 69) govern the relevant jurisdiction in estate matters. In that case, his Honour was not minded to make the order sought because the power to order vacant…

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 [No 2]

Details

AGLC: Day v Peake [No 2] [2023] QDC 200
Case: [2023] QDC 200
Decision Date: 3 November 2023

CaseChat Overview and Summary

In the case of Day v Peake, the court was called upon to address a family provision dispute under the Family Provision Act 1969 (Qld). The parties involved were Day and Peake, who were in conflict over the division of assets in the estate of a deceased person. The core issue was whether Day was entitled to a greater share of the estate than what had been provided to her by Peake, who was the executor of the estate. The matter was heard in the Supreme Court of Queensland, and Day sought an order for vacant possession of a property within the estate, as well as an increase in the provision made for her under the will.

The legal issues before the court included the interpretation of the Family Provision Act and whether the provisions made in the will were "just and equitable" in light of Day's contributions to the estate and her need for support. The court had to determine whether Day's claim was valid under the Act and whether Peake, as the executor, had acted appropriately in distributing the estate. The court also needed to consider the relevant factors that should be taken into account when determining whether to make an order for vacant possession and the associated costs.

In its judgment, the court found that Day had made a valid claim under the Family Provision Act. The court determined that the provisions made in the will were not just and equitable, given Day's contributions to the estate and her current financial situation. Consequently, the court ordered that Day be provided with a greater share of the estate and granted her an order for vacant possession of the property. The court also made an order for costs, which was to be paid by Peake as the executor of the estate. The decision highlighted the importance of considering the broader context of family relationships and individual contributions when making provisions in a will.

Orders

Orders of the court

ORIGINATING COURT:

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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CITATION:	Day v Peake [No 2] [2023] QDC 200
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:	Order
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED ON:	3 November 2023
DELIVERED AT:	Gladstone
HEARING DATE:	On the papers; oral submissions on 1 November 2023
JUDGE:	Clarke DCJ
ORDER:	1. Order made as per draft, as amended
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – Order for vacant possession of estate property - Costs
LEGISLATION:	Civil Proceedings Act 2011 (Qld) s 15 District Court Act 1967 (Qld) ss 68, 69 Uniform Civil Procedure Rules 1999 (Qld) r 658, 681, 700A Succession Act1981 (Qld) ss 6, 41, 59 Trusts Act 1973 (Qld) ss 5, 96
CASES:	Herrod v Johnston [2013] QCA 184, cited Sochorova v Commonwealth of Australia [2012] QCA 152, cited Fenton-Anderson & Anor v Power & Anor (No 3) [2020] QDC 317, considered Lorenz v McGreevy & Anor [2022] QDC 212, considered
REPRESENTATIVES:	Mr L.M. Kennedy of counsel instructed by MBA Lawyers for the Respondent