Eatts v Gundy

Case [2014] QCA 309


SUPREME COURT OF QUEENSLAND

CITATION:

Eatts v Gundy [2014] QCA 309

PARTIES:

JOSLIN EATTS as administrator of the Estate of the late DOREEN ‘DOLLY’ MARY-ANN EATTS
(appellant)
v
BRADLEY GUNDY
(respondent)

FILE NO/S:

Appeal No 11448 of 2013
SC No 6631 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2014

JUDGES:

Muir and Fraser JJA and Martin J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal is allowed with costs.1.   

The orders made in the Trial Division on 1 November 2013 and 13 December 2013 are set aside.2.   

Instead of those orders, the appellant’s application in the Trial Division filed on 11 February 2013 is granted and the respondent’s originating application is struck out.3.   

The respondent is to pay the appellant’s costs of the respondent’s originating application, including the costs of the appellant’s application to strike out that originating application. This order does not entitle the appellant to recover any reserved costs. 4.   

The parties are at liberty to apply on seven days notice in the Trial Division for orders in relation to costs which were reserved in the Trial Division.5.   

CATCHWORDS:

SUCCESSION – INTESTACY AND DISTRIBUTION ON INTESTACY – where the appellant is the administrator and parent of the deceased, who died intestate, and the respondent is the biological son of the deceased’s sister – where there was evidence of a parent/child relationship between the deceased and respondent according to Aboriginal tradition – where the respondent argued he was a surviving child of the intestate pursuant to the Succession Act 1981 and sought a declaration that he take the whole of the estate under Pt 3 – where the appellant applied to strike out the respondent’s originating application – where the primary judge dismissed the application to strike out and the appellant appeals on the ground the respondent has no arguable case – whether there is an arguable case that the respondent is the intestate’s surviving “issue” and “child” within the meaning of Pt 2 of Sch 2 and s 36A of the Succession Act

SUCCESSION – FAMILY PROVISION – ELIGIBLE APPLICANTS – CHILD – where the respondent argued he was a “child” of the deceased under Pt 4 of the Succession Act and is entitled to make a claim for family provision out of the deceased’s estate under Pt 4 – where the appellant applied to strike out the respondent’s originating application – where the primary judge dismissed the application to strike out and the appellant appeals on the ground the respondent has no arguable case – whether there is an arguable case that the respondent is the intestate’s “child” within the meaning of s 41(1) of the Succession Act

Acts Interpretation Act 1954 (Qld), Pt 4, s 36
Adoption Act 2009 (Qld), s 214, s 216, s 218
Child Protection Act

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AGLC
Eatts v Gundy [2014] QCA 309
Case
[2014] QCA 309
Decision Date

CaseChat Overview and Summary

Eatts, as the administrator and parent of the deceased, who died intestate, brought this appeal against Gundy, the biological son of the deceased's sister. Gundy argued that he was a surviving child of the deceased under Aboriginal tradition and sought a declaration that he inherit the entire estate. He also sought to make a claim for family provision under the Succession Act 1981. Eatts applied to strike out Gundy's originating application, arguing that Gundy had no arguable case as he was not a surviving child or issue of the deceased. The primary judge dismissed Eatts' application to strike out, prompting this appeal.

The court was required to determine whether there was an arguable case that Gundy was the deceased's surviving "issue" and "child" within the meaning of Part 2 of Schedule 2 and section 36A of the Succession Act. The court also needed to decide if there was an arguable case that Gundy was the deceased's "child" within the meaning of section 41(1) of the Succession Act, thereby making him an eligible applicant for family provision.

The court held that there was no arguable case that Gundy was the deceased's surviving "issue" or "child" within the meaning of the Succession Act. The court found that Gundy's claim was based solely on Aboriginal tradition and did not meet the legal criteria for succession or family provision under the Act. The appeal was allowed, and the orders made by the primary judge were set aside. Instead, Eatts' application to strike out Gundy's originating application was granted, and Gundy's application was struck out. Gundy was ordered to pay Eatts' costs of the originating application, including the costs of Eatts' application to strike out. The parties were at liberty to apply for orders in relation to reserved costs.

Orders

Orders of the court

The appeal is allowed with costs.1.

The orders made in the Trial Division on 1 November 2013 and 13 December 2013 are set aside.2.

Instead of those orders, the appellant’s application in the Trial Division filed on 11 February 2013 is granted and the respondent’s originating application is struck out.3.

The respondent is to pay the appellant’s costs of the respondent’s originating application, including the costs of the appellant’s application to strike out that originating application. This order does not entitle the appellant to recover any reserved costs. 4.

The parties are at liberty to apply on seven days notice in the Trial Division for orders in relation to costs which were reserved in the Trial Division.5.

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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