Fenton-Anderson v Power - [2020] QDC 293

DISTRICT COURT OF QUEENSLAND

CITATION:

Fenton-Anderson & Anor v Power & Anor [2020] QDC 293

PARTIES:

PETA DIVINA ALEXANDRA FENTON-ANDERSON & TONI LEIGH DOLORES FENTON-LESLIE

(Applicants)

V

DAVID CLIFFORD POWER & NICOLAS FLETCHER SMITH (as executors of the Will of David Joseph Fenton deceased)

(Respondents)

AND

SUZANNE MICHELLE FENTON

(Respondent by election)

FILE NO:

DC 42/18 No 1186 of 2018

DIVISION:

Civil

PROCEEDING:

Oral application made 13 July 2020

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

20 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2020

JUDGE:

Porter QC DCJ

ORDERS:

1.   Adjournment application refused.

2.   Costs of the adjournment application reserved.

CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – ADJOURNMENT – where the self-represented respondent by election made an oral application on the first day of the trial –– where the respondent by election applicant relied on her ill-health – where the respondent by election sought further time to file evidence – where the respondent by election knew of the trial dates well in advance of the trial – where the respondent by election’s ill-health might preclude her from participating in the trial at any future time – where the respondent by election’s interests would be the subject of submission by the executor in any event consistent with the executor’s duty – where the applicant could not pay the costs thrown away by any adjournment

LEGISLATION
Succession Act 1981 (Qld) ss. 41(1); 41(8)
Uniform Civil Procedure Rules 1999 (Qld) rr. 5; 112(e)(ii)

CASES
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Commissioner of the Australian Federal Police v Hart [2016] QCA 215
Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968
DPP v Ozakca (2006) 68 NSWLR 325
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46
Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260
Nobarani v Mariconte (2018) 265 CLR 236
Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, Full Court, 16 June 1986)
Sullivan v Department of Transport (1978) 20 ALR 323

SECONDARY SOURCES
John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Butterworths, 5^th ed, 2016)

COUNSEL:
SOLICITORS:

K Kelso for the applicants
A Collins for the respondent executors
Respondent by election self-represented

Wonderley & Hall for the applicants
Bernays Lawyers for the respondent executors
Respondent by election self-represented

Summary

On 23 February 2018, Mr Joseph Fenton was lost to those who loved him aged 72. He died leaving a will dated 22 April 2010 which had been prepared by Mr David Power, a solicitor, who is also one of the respondent executors (the Will). The primary asset of his estate is his six bedroom house and rural property at Cambooya, worth some $1m. The primary beneficiary of the Will was Mrs Suzanne Michelle Fenton, Mr Fenton’s ex-wife (Mrs Fenton). She received effectively all the personal estate (limited to some…

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 Fenton-Anderson v Power

Details

AGLC: Fenton-Anderson v Power [2020] QDC 293
Case: [2020] QDC 293
Decision Date: 20 November 2020

CaseChat Overview and Summary

In the case of Fenton-Anderson v Power, the applicant sought an adjournment of the trial on the basis of the respondent's ill-health, which was an issue that came before the court. The applicant, who was the executor of an estate, was contesting the respondent's claim to certain assets of the estate. The respondent, who was self-represented, argued that her health issues precluded her from participating in the trial. Despite the respondent's illness, the court considered the respondent's knowledge of the trial dates well in advance and the potential for her health to deteriorate further. The court also noted that the respondent's interests would be the subject of submissions by the executor, consistent with the executor's duty.

The legal issues before the court were whether the respondent's ill-health justified an adjournment of the trial and whether the respondent's inability to pay the costs thrown away by any adjournment was a relevant consideration. The court considered the principles of court supervision in civil proceedings and the need to balance the interests of the parties. The court found that the respondent's illness did not justify an adjournment, as the respondent had known of the trial dates for some time and her health issues might preclude her from participating in the trial at any future time. The court also found that the respondent's inability to pay the costs thrown away by any adjournment was a relevant consideration.

The court concluded that the respondent's application for an adjournment should be refused. The court found that the respondent's illness did not justify an adjournment, as the respondent had known of the trial dates for some time and her health issues might preclude her from participating in the trial at any future time. The court also found that the respondent's inability to pay the costs thrown away by any adjournment was a relevant consideration. The court reserved the costs of the adjournment application for determination at a later time.

The court ordered that the adjournment application be refused and that the costs of the adjournment application be reserved for determination at a later time. This decision highlights the importance of court supervision in civil proceedings and the need to balance the interests of the parties, including the consideration of the costs associated with any adjournment.

Orders

Orders of the court

1. Adjournment application refused.

2. Costs of the adjournment application reserved.

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:	Fenton-Anderson & Anor v Power & Anor [2020] QDC 293
PARTIES:	PETA DIVINA ALEXANDRA FENTON-ANDERSON & TONI LEIGH DOLORES FENTON-LESLIE (Applicants) V DAVID CLIFFORD POWER & NICOLAS FLETCHER SMITH (as executors of the Will of David Joseph Fenton deceased) (Respondents) AND SUZANNE MICHELLE FENTON (Respondent by election)
FILE NO:	DC 42/18 No 1186 of 2018
DIVISION:	Civil
PROCEEDING:	Oral application made 13 July 2020
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	20 November 2020
DELIVERED AT:	Brisbane
HEARING DATE:	13 July 2020
JUDGE:	Porter QC DCJ
ORDERS:	1. Adjournment application refused. 2. Costs of the adjournment application reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – ADJOURNMENT – where the self-represented respondent by election made an oral application on the first day of the trial –– where the respondent by election applicant relied on her ill-health – where the respondent by election sought further time to file evidence – where the respondent by election knew of the trial dates well in advance of the trial – where the respondent by election’s ill-health might preclude her from participating in the trial at any future time – where the respondent by election’s interests would be the subject of submission by the executor in any event consistent with the executor’s duty – where the applicant could not pay the costs thrown away by any adjournment
LEGISLATION	Succession Act 1981 (Qld) ss. 41(1); 41(8) Uniform Civil Procedure Rules 1999 (Qld) rr. 5; 112(e)(ii)
CASES	Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Commissioner of the Australian Federal Police v Hart [2016] QCA 215 Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968 DPP v Ozakca (2006) 68 NSWLR 325 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 Johnson v Public Trustee of Queensland as executor of the will of Brady (deceased) [2010] QCA 260 Nobarani v Mariconte (2018) 265 CLR 236 Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, Full Court, 16 June 1986) Sullivan v Department of Transport (1978) 20 ALR 323
SECONDARY SOURCES	John de Groot and Bruce Nickel, Family Provision in Australia (LexisNexis Butterworths, 5^th ed, 2016)
COUNSEL: SOLICITORS:	K Kelso for the applicants A Collins for the respondent executors Respondent by election self-represented Wonderley & Hall for the applicants Bernays Lawyers for the respondent executors Respondent by election self-represented