Etchison v ANZ Executors and Trustee Company Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Etchison v ANZ Executors and Trustee Company Ltd  [2005] QSC 363

PARTIES:

BARBARA LINDA ETCHISON
(plaintiff)
v
ANZ EXECUTORS AND TRUSTEE COMPANY LIMITED ABN 33 006 132 332 (as executor of the will dated 14 March 2001 and codicil dated 28 March 2001
of HELEN ANN GORDON RIMMER deceased)
(defendant)

FILE NO/S:

BS 5186 of 2004

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12, 13, 14, 15 and 16 September 2005

JUDGE:

McMurdo J

ORDER:

The claim is dismissed

CATCHWORDS:

ESTOPPEL – ESTOPPEL IN PAIS – EQUITABLE ESTOPPEL – GENERAL PRINCIPLES – where the plaintiff nursed the defendant prior to her death at the plaintiff’s home for approximately two years – where the plaintiff held power of attorney for the defendant – where the plaintiff was not paid for her nursing services – where the defendant paid the plaintiff rent for the use of her house – where the defendant told the plaintiff that she was to be paid for her work and that she was to put in an account to the estate for the “going rate” which would be in addition to any gifts left in the deceased’s will – where the plaintiff was left approximately $350,000 in the will – where the plaintiff put in a claim to the estate for $228,000 being $25 per hour for 10 hours per day, 7 days per week for two and half years, plus additional expenses for the removal of a bathroom installed at the deceased’s expense and the renovation of the kitchen, from alleged wear and tear from the deceased’s live-in assistants – where the claim was based upon an alleged equitable estoppel – whether the plaintiff would have acted differently had she not expected to be paid in addition to any bequest left to her in the deceased’s will – whether it was unconscionable, in light of the bequest, for the estate not to pay the plaintiff the amounts claimed

Powers of Attorney Act 1998 (Qld), s 59

Commonwealth v Verwayen (1990) 170 CLR 394, followed Gillett v Holt [2001] Ch 210, followed
Giumelli v Giumelli (1999) 196 CLR 101, referred to
Jennings v Rice [2002] EWCA Civ 159, discussed
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, followed

COUNSEL:

D G Mullins SC for the plaintiff
D R M Murphy for the defendant

SOLICITORS:

McCullough Robertson for the plaintiff
Gleeson Lawyers for the defendant

J:  McMURDO

The case in outline

1. Mrs Helen Rimmer died on 12 July 2003 leaving an estate worth about $1.5 million.  The defendant is the executor of her will dated 14 March 2001.  By that will, Mrs Rimmer left a legacy of $240,000, together with a share of the residue, to the plaintiff, Mrs Etchison.  In all, Mrs Etchison inherited at least $350,000.  With the exception of some small legacies, the balance of the estate was left to two charities.  Mrs Etchison…