Ensor v Frisby - [2009] QSC 268

SUPREME COURT OF QUEENSLAND

CITATION:

Ensor & Ors v Frisby & Anor [2009] QSC 268

PARTIES:

LYNETTE KAY ENSOR, TREVOR ENSOR and JEFFREY ENSOR

(applicants)

v

THOMAS CHRISTOPHER FRISBY and PETER JOHN CANNING (AS EXECUTORS OF THE WILL OF ELIZABETH BALDWIN, DECEASED)

(first respondents)

WENDY ROMONA BALDWIN

(second respondent)

FILE NO/S:

BS 9622 of 2007

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

6 July 2009

JUDGE:

McMurdo J

ORDERS:

1.    It is declared that the gift contained in cl 3(d) of the will of Elizabeth Baldwin deceased, dated 14 May 1999 was not adeemed by the sale of the property situated at 14 Reedy Street, Redcliffe during the deceased’s lifetime.

2.    It is further declared that from the monies held by the first respondents in Bank of Queensland Money Market Deposit Account No. 37461, the applicants are entitled to be paid:

(a)     the sum of $210,000; together with

(b)     interest on that sum from 22 November 2006 until 31 July 2008 at the rate from time to time paid on deposits in Suncorp Metway Account No. 501325981 and from 5 August 2008 until payment at the rates paid from time to time on monies in that account with Bank of Queensland;

(c)   less the income tax payable on the interest referred to in para (b).

3.    The costs of all parties of and incidental to this application on an indemnity basis will be paid out of the monies otherwise to be paid to the applicants, before the balance is paid to them.

4.    Liberty to apply.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – ADMINISTRATION – DISTRIBUTION – LEGACIES AND DEVISES – ADEMPTION – where the deceased appointed applicants as power of attorneys during her lifetime – where the deceased left certain property to the applicants in her will – where the applicants were unaware of the contents of the will – where the deceased developed dementia – where the applicants made the decision to sell the subject property using the power of attorney – whether the gift had been adeemed as a result of the sale of the property – whether proceeds of the sale should be distributed to the applicants or treated as part of the residuary estate

Powers of Attorney Act 1998 (Qld), s 107

Banks v National Westminster Bank PLC & Anor [2005] EWHC 3479 (Ch), cited

Brown v Heffer (1967) 116 CLR 344, cited

Christensen v McKnight unreported, Supreme Court of New South Wales, 2 March 1995, BC9504314

Jenkins v Jones (1866) LR 2 Eq 323, discussed

Johnston v Maclarn [2002] NSWSC 97, cited

Jones v Green (1868) LR 5 Eq 555, cited

Mulhall v Kelly [2006] VSC 407, followed

Orr v Slender; Estate of Godfrey Raymond Orr (2005) 64 NSWLR 671, cited

Re Hartigan; Ex Parte The Public Trustee unreported, 9 December 1997, BC97097385, followed

Re Slater [1907] 1 Ch 665, cited

Re Viertel [1997] 1 Qd R…

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 Ensor v Frisby

Details

AGLC: Ensor v Frisby [2009] QSC 268
Case: [2009] QSC 268
Decision Date: 7 September 2009

CaseChat Overview and Summary

The applicants, Ensor and Frisby, sought a declaration that a specific gift in the will of Elizabeth Baldwin did not lapse by virtue of the sale of the property in question. The respondents were the executors of the will, and the court was required to determine whether the gift was adeemed by the sale of the property during the deceased’s lifetime. The court had to examine the provisions of the will and the circumstances surrounding the sale of the property to determine if the gift was indeed adeemed. The applicants, who had been appointed as power of attorneys by the deceased, were unaware of the contents of the will at the time of making the decision to sell the property. The court also needed to consider the impact of the deceased’s dementia on the validity of the sale and the execution of the power of attorney.

The court found that the gift was not adeemed by the sale of the property, as the power of attorney did not include the authority to dispose of the property in question. The court held that the sale was not effective as it was not within the scope of the power of attorney. Furthermore, the court determined that the applicants were entitled to the specified sum from the proceeds of the sale, with interest and deductions for income tax. The court also ordered that the costs of the application be paid from the monies owed to the applicants before the balance was paid to them.

In conclusion, the court declared that the gift in question was not adeemed by the sale of the property. The applicants were entitled to the specified sum from the proceeds of the sale, with interest and deductions for income tax. The costs of the application were to be paid from the monies owed to the applicants before the balance was paid to them. This decision provides clarity on the rights of the applicants and the distribution of the estate in accordance with the will.

Orders

Orders of the court

1. It is declared that the gift contained in cl 3(d) of the will of Elizabeth Baldwin deceased, dated 14 May 1999 was not adeemed by the sale of the property situated at 14 Reedy Street, Redcliffe during the deceased’s lifetime.

2. It is further declared that from the monies held by the first respondents in Bank of Queensland Money Market Deposit Account No. 37461, the applicants are entitled to be paid:

(a) the sum of $210,000; together with

(b) interest on that sum from 22 November 2006 until 31 July 2008 at the rate from time to time paid on deposits in Suncorp Metway Account No. 501325981 and from 5 August 2008 until payment at the rates paid from time to time on monies in that account with Bank of Queensland;

3. The costs of all parties of and incidental to this application on an indemnity basis will be paid out of the monies otherwise to be paid to the applicants, before the balance is paid to them.

4. Liberty to apply.

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:	Ensor & Ors v Frisby & Anor [2009] QSC 268
PARTIES:	LYNETTE KAY ENSOR, TREVOR ENSOR and JEFFREY ENSOR (applicants) v THOMAS CHRISTOPHER FRISBY and PETER JOHN CANNING (AS EXECUTORS OF THE WILL OF ELIZABETH BALDWIN, DECEASED) (first respondents) WENDY ROMONA BALDWIN (second respondent)
FILE NO/S:	BS 9622 of 2007
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	6 July 2009
JUDGE:	McMurdo J
ORDERS:	1. It is declared that the gift contained in cl 3(d) of the will of Elizabeth Baldwin deceased, dated 14 May 1999 was not adeemed by the sale of the property situated at 14 Reedy Street, Redcliffe during the deceased’s lifetime. 2. It is further declared that from the monies held by the first respondents in Bank of Queensland Money Market Deposit Account No. 37461, the applicants are entitled to be paid: (a) the sum of $210,000; together with (b) interest on that sum from 22 November 2006 until 31 July 2008 at the rate from time to time paid on deposits in Suncorp Metway Account No. 501325981 and from 5 August 2008 until payment at the rates paid from time to time on monies in that account with Bank of Queensland; (c) less the income tax payable on the interest referred to in para (b). 3. The costs of all parties of and incidental to this application on an indemnity basis will be paid out of the monies otherwise to be paid to the applicants, before the balance is paid to them. 4. Liberty to apply.
CATCHWORDS:	SUCCESSION – EXECUTORS AND ADMINISTRATORS – ADMINISTRATION – DISTRIBUTION – LEGACIES AND DEVISES – ADEMPTION – where the deceased appointed applicants as power of attorneys during her lifetime – where the deceased left certain property to the applicants in her will – where the applicants were unaware of the contents of the will – where the deceased developed dementia – where the applicants made the decision to sell the subject property using the power of attorney – whether the gift had been adeemed as a result of the sale of the property – whether proceeds of the sale should be distributed to the applicants or treated as part of the residuary estate Powers of Attorney Act 1998 (Qld), s 107 Banks v National Westminster Bank PLC & Anor [2005] EWHC 3479 (Ch), cited Brown v Heffer (1967) 116 CLR 344, cited Christensen v McKnight unreported, Supreme Court of New South Wales, 2 March 1995, BC9504314 Jenkins v Jones (1866) LR 2 Eq 323, discussed Johnston v Maclarn [2002] NSWSC 97, cited Jones v Green (1868) LR 5 Eq 555, cited Mulhall v Kelly [2006] VSC 407, followed Orr v Slender; Estate of Godfrey Raymond Orr (2005) 64 NSWLR 671, cited Re Hartigan; Ex Parte The Public Trustee unreported, 9 December 1997, BC97097385, followed Re Slater [1907] 1 Ch 665, cited Re Viertel [1997] 1 Qd R…