Freeman v Jaques

Case [2005] QCA 423

SUPREME COURT OF QUEENSLAND

CITATION:

Freeman & Ors v Jaques [2005] QCA 423

PARTIES:

SHERYL ANN FREEMAN
(applicant)
LYNELL CORAL NICOL
(applicant/appellant)
RHONDA KAY RETTKE
(applicant/appellant)
DERINDA JOYCE SMERDON
(applicant)
LEONARD THOMAS FREEMAN
(applicant/appellant)
DENISE GAY HANCOCK
(applicant/appellant)
ROBERT WARREN FREEMAN
(applicant)
v
HEATHER EVELYN JAQUES
(respondent/respondent)

FILE NO/S:

Appeal No 6962 of 2005
SC No 6343 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time/General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

18 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2005

JUDGES:

de Jersey CJ, McPherson and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed

2. Appellants to pay the respondent's costs of the appeal to be assessed

CATCHWORDS:

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - PRINCIPLES UPON WHICH RELIEF GRANTED - GENERAL MATTERS - PRINCIPLES OF EXERCISE OF DISCRETION - where a close friend of the respondent had recently died - where the will of the deceased left her entire estate to the respondent - where the stepchildren of the deceased had made application for an order for provision to be made for them out of the estate pursuant to s 41(1) Succession Act 1981 (Qld) - where the learned primary judge held that all but two of the stepchildren had failed to show, having regard to the size of the estate, the totality of their relationship with the deceased and their personal financial circumstances, that the deceased had not made adequate provision for their maintenance and support - where the unsuccessful stepchildren appealed that decision - whether the learned primary judge applied the correct legal test to determine whether or not adequate provision had been made for the unsuccessful stepchildren - whether the learned trial judge had been mistaken as to the existence or importance of certain important facts in relation to the personal circumstances of the unsuccessful stepchildren

APPEAL AND NEW TRIAL - APPEAL – PRACTICE AND PROCEDURE - QUEENSLAND - POWERS OF COURT - COSTS - where costs at first instance paid out of deceased estate - where unsuccessful claimants for provision from the estate appealed - whether unsuccessful claimants were justified in seeking a "second opinion" - whether appellants should be personally liable to pay the costs of the appeal

Succession Act 1981 (Qld), s 41

James v Day [2004] VSC 290; No 454 of 2003, 17 August 2004, distinguished

MacEwan Shaw v Shaw [2003] VSC 318; No 5291 of 2002, 2 September 2003, cited

McKenzie v Topp [2004] VSC 90; No 4847 of 2003,
30 March 2004, distinguished

Singer v Berghouse (1994) 181 CLR 201, cited

Vigolo v Bostin [2005] HCA 11; (2005) 213 ALR 692, applied

COUNSEL:

A J H Morris QC, with P A J Howard, for the appellants
D G Mullins SC for the respondent

SOLICITORS:

Martinez Quadrio Lawyers for the appellants
Schultz Toomey O'Brien Lawyers for the respondent

  1. de JERSEY…

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AGLC
Freeman v Jaques [2005] QCA 423
Case
[2005] QCA 423
Decision Date

CaseChat Overview and Summary

The case of Freeman v Jaques involved an appeal by the unsuccessful claimants against the decision of the trial judge in the Supreme Court of Queensland. The dispute centred around the costs incurred during the initial proceedings, specifically whether these costs should be paid from the deceased's estate. The claimants argued that they were justified in seeking a "second opinion" on the matter, which led to the appeal. The court was required to determine if the appellants should be personally liable for the costs of the appeal.

The court examined the grounds for the appeal and the justification for the claimants seeking a "second opinion." It considered whether the appeal was frivolous or vexatious and whether the appellants had a reasonable prospect of success. The court noted that the initial decision was well-reasoned, and the appeal did not present a viable alternative interpretation of the law or facts. The court found that the appellants had not demonstrated a reasonable basis for their appeal and that their actions were vexatious.

Consequently, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal, to be assessed. The court held that the appellants' decision to appeal was not justified and that they should bear the financial consequences of their unsuccessful litigation. The court's decision underscored the importance of ensuring that appeals are not pursued frivolously and that parties are held accountable for the costs associated with such actions.

Orders

Orders of the court

1. Appeal dismissed

2. Appellants to pay the respondent's costs of the appeal to be assessed

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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