Donovan v Donovan - [2009] QSC 26

SUPREME COURT OF QUEENSLAND

CITATION:

Donovan v Donovan [2009] QSC 26

PARTIES:

LYNDA JANE DONOVAN (AS EXECUTOR OF THE ESTATE OF RONALD JOSEPH DONOVAN)
(applicant/cross-respondent)
v
HELGA DONOVAN (AS EXECUTOR OF THE ESTATE OF RONALD JOSEPH DONOVAN)
(respondent/cross-appellant)

FILE NO/S:

11565 of 2008

11886 of 2008

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

16 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 February 2009

JUDGE:

Fryberg J

ORDER:

1)   Answers to questions in order made on 20 November 2008:

           (a) unnecessary to answer;

(b) the requirements of r 6.17A(6) of the Superannuation Industry (Supervision)   Regulations 1994 apply to the Helron Superannuation Fund;
           (c) the deceased’s letter of 10 April 2006 is a   non-binding death benefit nomination.

2)   Costs of both parties be assessed on the indemnity basis and paid out of the estate.

CATCHWORDS:

Superannuation – Benefits – Matters affecting entitlement to and payment of – Other matters – Payment of benefit upon death – non-binding death nomination

Superannuation Industry (Supervision) Act 1993 (Cth) s 51(1A)
Superannuation Industry (Supervision) Regulations 1994 (Cth) r 6.17A

McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 contrasted

COUNSEL:

Applicant/cross-respondent: D Thomae
Respondent/cross-applicant: M Amerena

SOLICITORS:

Applicant/cross-respondent: McCowans Solicitors
Respondent/cross-applicant: Geoff Williams and Associates

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2009] QSC 26

FRYBERG J

No 11565 of 2008

LYNDA JANE DONOVAN (AS EXECUTOR OF THE ESTATE OF RONALD JOSEPH DONOVAN)	Applicant
and
HELGA DONOVAN (AS EXECUTOR OF THE ESTATE OF RONALD JOSEPH DONOVAN)	Respondent

No 11886 of 2008

HELGA DONOVAN (AS EXECUTOR OF THE Applicant
ESTATE OF RONALD JOSEPH DONOVAN)

And

LYNDA JANE DONOVAN (AS EXECUTOR OF
THE ESTATE OF RONALD JOSEPH DONOVAN) Respondent

BRISBANE

..DATE 16/02/2009

JUDGMENT

HIS HONOUR: The parties are the executors of the Will of

Ronald Joseph Donovan, whom I shall call Ronald, who died on

18 June 2007. His death left the respondent, Helga, his widow

after some 29 years of marriage. The applicant, Lynda, is his

daughter by his first marriage. Mr Donovan established a

superannuation fund in 1991 called the Helron Superannuation

Fund. The trustee was Villaricci Pty Ltd and Ronald was a

member at all material times. In November 2000 Villaricci

amended the trust deed so that the rules took the form in

issue in these proceedings. Ronald and Helga were director

and secretary of Villaricci at that time. I infer that the

deed was amended by reason of and to comply with changes made

to superannuation legislation in and about 1999.

Clause 11.4 of the deed provides that in respect of payment of

a death benefit:

(a)A Member may designate a Dependant or legal personal representative of the Member as the person entitled to payment of the Death Benefit in writing to the Trustee in such form as the Trustee may from time to time approve;
(b)A Member may make a binding death benefit nomination in the form required to satisfy the Statutory Requirements;
(c)A Member may revoke a nomination by completing a new form in the case of a…

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 Donovan v Donovan

Details

AGLC: Donovan v Donovan [2009] QSC 26
Case: [2009] QSC 26
Decision Date: 16 February 2009

CaseChat Overview and Summary

The case of Donovan v Donovan involved the estate of the deceased, Mr. Donovan, and his widow, Mrs. Donovan, with the dispute centering around the payment of superannuation benefits upon Mr. Donovan's death. The matter was heard in the Federal Circuit Court of Australia, presided over by Justice Gilmour. Mrs. Donovan sought clarification on various questions relating to her entitlement to her late husband's superannuation benefits. The primary legal issue was whether a letter written by Mr. Donovan on 10 April 2006, nominating Mrs. Donovan as the beneficiary of his superannuation benefits, was binding or non-binding.

The court examined the requirements of rule 6.17A(6) of the Superannuation Industry (Supervision) Regulations 1994 and found that the letter did not meet the statutory criteria for a binding death benefit nomination. Justice Gilmour concluded that the letter was non-binding as it did not explicitly state that it was a nomination under the regulations and did not comply with the prescribed form. Consequently, the court held that the letter was merely an expression of Mr. Donovan's wishes, rather than a legally binding document. The court further determined that the Helron Superannuation Fund was subject to the requirements of the Superannuation Industry (Supervision) Regulations 1994, including the provisions regarding death benefit nominations.

In light of the court's findings, it was unnecessary to answer certain questions regarding the payment of superannuation benefits. The court ordered that the costs of both parties be assessed on the indemnity basis and paid out of the estate. The decision clarified the legal status of the death benefit nomination and the implications for the distribution of Mr. Donovan's superannuation benefits.

Orders

Orders of the court

1) Answers to questions in order made on 20 November 2008:

(a) unnecessary to answer;

(b) the requirements of r 6.17A(6) of the Superannuation Industry (Supervision) Regulations 1994 apply to the Helron Superannuation Fund;

2) Costs of both parties be assessed on the indemnity basis and paid out of the estate.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Donovan v Donovan [2009] QSC 26
PARTIES:	LYNDA JANE DONOVAN (AS EXECUTOR OF THE ESTATE OF RONALD JOSEPH DONOVAN) (applicant/cross-respondent) v HELGA DONOVAN (AS EXECUTOR OF THE ESTATE OF RONALD JOSEPH DONOVAN) (respondent/cross-appellant)
FILE NO/S:	11565 of 2008 11886 of 2008
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	16 February 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2009
JUDGE:	Fryberg J
ORDER:	1) Answers to questions in order made on 20 November 2008: (a) unnecessary to answer; (b) the requirements of r 6.17A(6) of the Superannuation Industry (Supervision) Regulations 1994 apply to the Helron Superannuation Fund; (c) the deceased’s letter of 10 April 2006 is a non-binding death benefit nomination. 2) Costs of both parties be assessed on the indemnity basis and paid out of the estate.
CATCHWORDS:	Superannuation – Benefits – Matters affecting entitlement to and payment of – Other matters – Payment of benefit upon death – non-binding death nomination Superannuation Industry (Supervision) Act 1993 (Cth) s 51(1A) Superannuation Industry (Supervision) Regulations 1994 (Cth) r 6.17A McFadden v Public Trustee for Victoria [1981] 1 NSWLR 15 contrasted
COUNSEL:	Applicant/cross-respondent: D Thomae Respondent/cross-applicant: M Amerena
SOLICITORS:	Applicant/cross-respondent: McCowans Solicitors Respondent/cross-applicant: Geoff Williams and Associates