Hartley v Hartley

Case [2022] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:

Hartley v Hartley [2022] QDC 217

PARTIES:

CRAIG ANDREW HARTLEY

(Applicant)

v

HARTLEY (AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED)

(Respondent)
FILE NO:

27 of 2017

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

Cairns

DELIVERED ON:

19 August 2022

DELIVERED AT:

Cairns

HEARING DATE:

12 & 13 May 2021, 11 July 2022.

JUDGE:

Morzone QC DCJ

ORDER:

Subject to any application limited to the proposed orders for administration and costs within 14 days of this judgment, I order as follows:

1. Pursuant to section 41(1) of the Succession Act 1981 (Qld) (“the Act”), further and better provision be made for the proper maintenance and support of the Applicant out of the estate of Shirley Lillian Hartley, deceased, by inserting a new clause 7(aa) after clause 7(a) of the Will dated 2 March 2015 as follows:

“To give to CRAIG ANDREW HARTLEY the sum of $150,000.00 absolutely, such legacy to be paid from the proceeds of sale of any part of my estate.  For the avoidance of doubt, payment of the legacy in this sub-clause shall take priority over the disposition of the gifts in sub-clauses 7(b) to 7(d) inclusive of this will.”

2.   The amounts payable in paragraph 1 above be paid by the estate to the trust account of Maurice Blackburn Lawyers, on behalf of the Applicant.

3.   The Applicant’s costs and outlays of and incidental to this Originating Application, up to and including trial, subsequent directions hearings and the 11 July 2022 return date for further argument following the Court of Appeal’s 27 May 2022 decision and this application for final orders fixed in the sum of $114,066.00 be paid on the indemnity basis as a liability of the Deceased’s estate.

4.   Within 30 days of the date of this order, Justyne Ford, at her sole cost, will take steps to apply to the Queensland Civil and Administrative Tribunal (QCAT) for appointment as the Applicant’s financial administrator to hold the amount payable in paragraph 1 after payment of the Applicant’s legal costs and outlays.

5.   Maurice Blackburn Lawyers are authorised to pay from their trust account the balance of the amounts payable in paragraphs 1and 3 above, after payment of their cost and outlays, to Justyne Ford upon her being appointed by QCAT as financial administrator for the Applicant, and not beforehand; and

6.   If the payments in paragraphs 1 and 3 are not paid within 35 days of Justyne Ford being appointed by QCAT as financial administrator for the Applicant, Justyne Ford as financial administrator for the Applicant has liberty to apply to the District Court to obtain judgment in DC 27/17 in the sum being the total of the amounts in paragraphs 1 and 3 against the estate.

7.   The Respondent’s costs of and incidental to the proceedings, up to and including 8 December 2020 will be paid to him from the estate on the indemnity basis.

8.   The Respondent bear his own costs of and incidental to the…

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Hartley v Hartley [2022] QDC 217
Case
[2022] QDC 217
Decision Date

CaseChat Overview and Summary

In the matter of Hartley v Hartley, the applicant, Craig Hartley, sought further and better provision from the estate of his late mother, Shirley Lillian Hartley. The dispute arose following the refusal of the estate to provide adequate maintenance and support for Craig, as stipulated by the Family Provision Act. The case was heard in the Queensland District Court, with an appeal subsequently considered by the Queensland Court of Appeal. The legal issues before the court involved the interpretation and application of the Family Provision Act, specifically the criteria for making a provision order and the relevance of disentitling conduct in the second stage of the inquiry. The court needed to determine whether Craig was left without adequate provision for his maintenance and support, and if so, whether any disentitling conduct by Craig should preclude him from receiving such provision.

The court found that the primary judge had erred in not treating the statutory declaration as evidence of its content and in conflating the consideration of disentitling conduct with the first stage of the inquiry. The statutory declaration was to be regarded as proof of its contents, and disentitling conduct should have been confined to the second stage of the inquiry. The court maintained its view regarding the nature of the relationship between Craig and his mother and the deceased’s wishes, affirming that Craig was left without adequate provision for his maintenance and support. The court further found that Craig’s conduct, although significant, did not meet the threshold of disentitling conduct that would exclude him from receiving provision from the estate. The court emphasised that the evidence of disentitling conduct was to be considered in the context of the second stage of the inquiry, and Craig’s actions, while serious, did not outweigh the need to provide for his maintenance and support.

The final orders of the court included the insertion of a new clause in the deceased’s will to provide Craig with $150,000 absolutely, to be paid from the proceeds of the sale of any part of the estate. The court also ordered that Craig’s costs and outlays be paid on an indemnity basis as a liability of the deceased’s estate. Additionally, the court directed that Justyne Ford apply to the Queensland Civil and Administrative Tribunal for appointment as Craig’s financial administrator. The respondent’s costs were to be paid from the estate up to a certain date, after which the respondent would bear his own costs personally. The decision reaffirmed the importance of correctly applying the legal principles and evidentiary rules in family provision cases, ensuring that the interests of all parties are fairly considered.

Orders

Orders of the court

Subject to any application limited to the proposed orders for administration and costs within 14 days of this judgment, I order as follows:

1. Pursuant to section 41(1) of the Succession Act 1981 (Qld) (“the Act”), further and better provision be made for the proper maintenance and support of the Applicant out of the estate of Shirley Lillian Hartley, deceased, by inserting a new clause 7(aa) after clause 7(a) of the Will dated 2 March 2015 as follows:

“To give to CRAIG ANDREW HARTLEY the sum of $150,000.00 absolutely, such legacy to be paid from the proceeds of sale of any part of my estate. For the avoidance of doubt, payment of the legacy in this sub-clause shall take priority over the disposition of the gifts in sub-clauses 7(b) to 7(d) inclusive of this will.”

2. The amounts payable in paragraph 1 above be paid by the estate to the trust account of Maurice Blackburn Lawyers, on behalf of the Applicant.

3. The Applicant’s costs and outlays of and incidental to this Originating Application, up to and including trial, subsequent directions hearings and the 11 July 2022 return date for further argument following the Court of Appeal’s 27 May 2022 decision and this application for final orders fixed in the sum of $114,066.00 be paid on the indemnity basis as a liability of the Deceased’s estate.

4. Within 30 days of the date of this order, Justyne Ford, at her sole cost, will take steps to apply to the Queensland Civil and Administrative Tribunal (QCAT) for appointment as the Applicant’s financial administrator to hold the amount payable in paragraph 1 after payment of the Applicant’s legal costs and outlays.

5. Maurice Blackburn Lawyers are authorised to pay from their trust account the balance of the amounts payable in paragraphs 1and 3 above, after payment of their cost and outlays, to Justyne Ford upon her being appointed by QCAT as financial administrator for the Applicant, and not beforehand; and

6. If the payments in paragraphs 1 and 3 are not paid within 35 days of Justyne Ford being appointed by QCAT as financial administrator for the Applicant, Justyne Ford as financial administrator for the Applicant has liberty to apply to the District Court to obtain judgment in DC 27/17 in the sum being the total of the amounts in paragraphs 1 and 3 against the estate.

7. The Respondent’s costs of and incidental to the proceedings, up to and including 8 December 2020 will be paid to him from the estate on the indemnity basis.

8. The Respondent bear his own costs of and incidental to the proceedings from 9 December 2020, up to and including trial, subsequent directions hearings and the 11 July 2022 return date for further argument following the Court of Appeal’s 27 May 2022 decision and this application for final orders personally, and he not be entitled to an indemnity for those costs from the estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It seems to me that costs ought follow the event in the applicant’s favour, so that unless either party seeks a different order, the applicant’s costs should be paid by the estate with such costs to be assessed or agreed on an indemnity basis.Consideration of evidence in the Statutory Declaration. The first matter warranting my consideration is identified by the Court of appeal in paragraph [15] of the judgment as follows:“[15] First, the primary judge had found that the matters raised by the deceased in the statutory declaration and uttered to others, went to the deceased’s reasons for excluding Craig, and were not evidence in themselves. That conclusion was certainly correct in relation to the evidence as to the statements which she had made to others. But it was wrong in relation to the statutory declaration. The statutory declaration had been admitted pursuant to s 92 of the Evidence Act1977 (Qld) and, accordingly, was to be regarded as proof of the truth of its contents. Although the primary judge accepted that many of the matters dealt with by the statutory declaration were made out by other evidence, he also found that not all of them were. For example, he found – wrongly because the statutory declaration amounted to such evidence – that there was no evidence that the deceased had taken out a restraining order on Craig, or of any reason for doing so. The result was that the primary judge had made an evidentiary error which meant that he must have failed to take into account at least some facts relevant to the exercise of his discretion on both stages of the test. That would amount to discretionary error within the meaning of House v The King (1936) 55 CLR 499 at 504-505.” I was not correct to treat the statutory declaration as not evidencing its content because it was evidence pursuant to s 92 of the Evidence Act1977 (Qld) and, it ought be regarded as proof of its contents. For the most part it is consistent with the evidence already subject of my determination, and I deal with other matters below. I was and remain less sanguine about the accuracy of her assertion that “I have a restraining order on him” and that “He has recently broken into my home and stolen from me which is why I took the restraining order out on him.” It seemed to me that whilst the deceased had the benefit of a domestic violence order (as distinct from a restraining order, it was not by her own application, nor for the reasons she asserted. Instead, it seemed to me that that restraining order was made at the instigation of the respondent arising from an altercation between the brothers, the applicant and the respondent, when the deceased was present.[3][3] Hartley v Hartley [2021] QDC 323 at [42]-[44], [55], [61]. Justyne Ford deposed that the applicant regularly stayed at the deceased’s Pease Street property up until the brothers had the “big fight” about 2014. She said this about the resultant domestic violence order and ongoing relationships:22. The end result of this was that Shane sought an Apprehended Violence Order (“AVO”) against Craig for both him and Shirley.23. Shirley was careful to ensure that she caught up with Craig without Shane’s knowledge, as she did not want Craig to be charged with breaching the AVO. She told me that Shane had just added her name to the AVO, and she didn’t want to be on it.24. She also told me that she thought it was a bad idea, and that Shane had a grudge against Craig for a long time. Shirley often talked about how she wished that all her children would get along, but admitted to me she thought this would likely never happen.25. Shirly would often tell me during our conversations that she was scared to tell Shane anything about Craig, as Shane would get angry and yell at her. She said that she didn’t want to cause any trouble.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I maintain my view as to the nature of the relationship between the deceased and the applicant and the deceased’s wishes going to the first stage of the inquiry, and also in relation to the issue of disentitlement and its proper assessment relevant to the second stage of the inquiry.Consideration of characteristics or conduct as disentitling relevant to the second stage of inquiry. The second matter identified by the Court of Appeal as erroneous is summarised in para [16] as follows:“[16] Second, the primary judge treated the question of the existence of disentitling conduct within the meaning of s 41(2)(c) as a question which should be considered at the first stage. That was an error in the application of legal principle. The question whether a judge should refuse to make an order in favour of any person because the judge finds their character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as to make such refusal reasonable, is, in terms, part of the second stage enquiry. Undoubtedly evidence relevant to that enquiry would also be relevant to the first stage enquiry, but at the first stage such evidence was to be considered in accordance with the test laid down for that stage and not by the application of the statutory terms applicable to the second stage. That too would amount to discretionary error within the meaning of House v The King.” My original reasons conflated my consideration of underlying relationship evidence and wishes of the deceased[6] relevant to the first stage of the inquiry, with my findings about disentitling conduct subject of s 41(2)(c), which ought to be confined to the second stage of the inquiry. [6]Hartley v Hartley [2021] QDC 323 at [33]-[49], [53]-[61], and [62]-[72]. In answer to the first stage jurisdictional inquiry – is the applicant left without adequate provision? – my answer remains “yes”; a wise and just testatrix, should have made some provision for the applicant in her will. Based on the underlying evidence putting aside my findings about the disentitlement point favouring the applicant. It seems to me that the applicant’s hopeless state and its genesis, and its bearing upon the relationship with, and wishes of, his mother, I maintain that a wise and just testatrix, should have made some provision for the applicant in her will. The respondent’s main contest before and now relates to the issue of disentitling conduct pursuant to s 41(2)(c) of the Succession Act, which is relevant to the second stage (not the first as I wrongly proceeded in the original decision). The respondent has re-enlivened his opposition to any order for further provision because of the applicant’s disentitling conduct comprised of stealing from the deceased, hostility, exposing her to violence by drug associates, damaging property, physical and verbal domestic violence, and psychological stress and anxiety. I have discussed these matters at length in my original reasons and maintain my findings favouring the applicant albeit relevant to the second stage. Paragraphs [9] and [62]-[72] and associated paragraphs of the original reasons ought now be read as being referable to the second stage in so far as they go to my findings about the issue of disentitling conduct. I maintain that the applicant has not breached the threshold of disentitling conduct to warrant exclusion from adequate provision from the deceased’s estate under s 41(2)(c) of the Act.