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Eatts v Gundy

Eatts v Gundy

Case [2014] QCA 309 28 November 2014

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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

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 Eatts v Gundy

Details

AGLC: Eatts v Gundy [2014] QCA 309
Case: [2014] QCA 309
Decision Date: 28 November 2014

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

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.

Citations

AGLC Citation

Eatts v Gundy [2014] QCA 309

Most Recent Citation

Hesse v Hardie [2023] WASCA 173

Cases citing this decision · 2 of 2 shown

Hesse v Hardie
[2023] WASCA 173

…Conservation and Land Management (1997) 18 WAR 126 Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 Cardaci v Cardaci [2023] WASCA 158 Eatts v Gundy [2014] QCA 309; [2015] 2 Qd R 559 Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 Gunns Ltd v Alishah [2009] TASSC 45; (2009) 19 Tas R 38 IMO The…
High Court Bulletin
[2015] HCAB 8

…[2014] QCA 309…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

Commonwealth v Australian Capital Territory
[2013] HCA 55

…432, cited The Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55, cited COUNSEL: D A Savage QC, with A J Moon, for the appellant P W Bates for the respondent SOLICITORS: Roberts Nehmer McKee Lawyers for the appellant Gerard Malouf & Partners for the respondent…
Gundy v Eatts
[2013] QSC 297 Para 1

…for a declaration to be made under the Status of Children Act or for the purposes of his claims pursuant to the Succession Act .[3] [1][2013] QSC 297 at [40]. [2][2013] QSC 297 at [38]. [3][2013] QSC 297 at [43]–[45].…
Spencer v Commonwealth of Australia
[2010] HCA 28 Para 1

…statutory provisions. The appellant does not have “more than a ‘fanciful’ prospect”[6] of success. [6] Spencer v Commonwealth of Australia (2010) 241 CLR 118 at 132 [25] (French CJ and Gummow J) to which the primary judge also referred.…
Jones v Public Trustee of Qld
[2004] QCA 269

…CLR 125; [1964] HCA 69, cited Jones v Public Trustee (Qld) (2004) 209 ALR 106; [2004] QCA 269, considered Mason v Tritton (1994) 34 NSWLR 572, cited Popple v Rowe [1998] 1 VR 651; [1997] VSC 13, considered Slater v Dangerfield (1846) 15 M & W 263; [1846] EngR 432, cited The Commonwealth v Australian Capital Terr…
Agar v Hyde
[2000] HCA 41 Para 1

…utcome of the proceeding if it were allowed to go to trial in the ordinary way”. [4](1964) 112 CLR 125 at 129. [5](2000) 201 CLR 552 at 576 [57].…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 28 Para 1

…of general application such as the Succession Act .[19] [16][1998] 1 VR 651 at 653. [17][1998] 1 VR 651 at 659. [18][1998] 1 VR 651 at 662. [19]See Harris v Ashdown (1985) 3 NSWLR 193 at 199 (Kirby P) and Popple v Rowe [1998] 1 VR 651 at 657 (Brooking JA).…
Antill-Pockley v Perpetual Trustee Co Ltd
[1974] HCA 52

…s 40, s 41, Sch 2 Antill-Pockley v Perpetual Trustee Co Ltd (1974) 132 CLR 140; [1974] HCA 52, cited Bamgbose v Daniel [1955] AC 107; [1954] UKPC 24, considered Coleman v Shang [1961] AC 481, cited GE v KM [1995] 1 VR 471; [1995] VicRp 31, considered General Steel Industries Inc v Commissioner for Railways (NSW)…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69

…eral Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited Jones v Public Trustee (Qld) (2004) 209 ALR 106; [2004] QCA 269, considered Mason v Tritton (1994) 34 NSWLR 572, cited Popple v Rowe [1998] 1 VR 651; [1997] VSC 13, considered Slater v Dangerfield (1846) 15 M & W…
Matthews v Williams
[1941] HCA 32 Para 1

…ner. That term has had no place in succession law in Australia since reforms in the nineteenth century.) [11] Matthews v Williams (1941) 65 CLR 639 at 650 (Rich ACJ, Dixon and McTiernan JJ). [12] Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 at 560 (Isaacs and Powers JJ). [13](1846) 15 M & W 263 at 272.…
Sidle v Queensland Trustees Ltd
[1915] HCA 48 Para 1

…tury.) [11] Matthews v Williams (1941) 65 CLR 639 at 650 (Rich ACJ, Dixon and McTiernan JJ). [12] Sidle v Queensland Trustees Ltd (1915) 20 CLR 557 at 560 (Isaacs and Powers JJ). [13](1846) 15 M & W 263 at 272.…
Matthew Olajide Bamgbose v John Bankole Daniel and others (West Africa)
[1954] UKPC 24

…o Ltd (1974) 132 CLR 140; [1974] HCA 52, cited Bamgbose v Daniel [1955] AC 107; [1954] UKPC 24, considered Coleman v Shang [1961] AC 481, cited GE v KM [1995] 1 VR 471; [1995] VicRp 31, considered General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, cited Jones v Publi…
[1997] VSC 13
[1997] VSC 13

…dered Mason v Tritton (1994) 34 NSWLR 572, cited Popple v Rowe [1998] 1 VR 651; [1997] VSC 13, considered Slater v Dangerfield (1846) 15 M & W 263; [1846] EngR 432, cited The Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55, cited COUNSEL: D A Savage QC, with A J Moon, for the appell…
[1961] AC 481
[1961] AC 481 Para 1

…legitimate children of the deceased according to the law of their domicile of origin. [30](2004) 209 ALR 106 at 114 [20]. [31][1955] AC 107. [32][1961] AC 481.…
[1955] AC 107
[1955] AC 107 Para 1

…s because they were legitimate children of the deceased according to the law of their domicile of origin. [30](2004) 209 ALR 106 at 114 [20]. [31][1955] AC 107. [32][1961] AC 481.…

Legislation cited in this decision · 9

Succession Act 1981 (Qld)
36A(3), 5 3 mentions
Adoption Act 2009 (Qld)
214 2 mentions (from Para 1)
Child Protection Act 1999 (Qld)
8 2 mentions
Legislative Standards Act 1992 (Qld)
3 2 mentions (from Para 1)
Acts Interpretation Act 1954 (Qld)
1 mention (from Para 1)
Administration and Probate Act 1958 (Vic)
1 mention (from Para 1)
Adoption of Children Act 1964 (Qld)
1 mention (from Para 1)
Native Title Act 1993 (Cth)
1 mention (from Para 1)
Status Of Children Act 1978 (NT)
1 mention

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