Hayes v. Hayes - [2008] QSC 6

[2008] QSC 6

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 1137 of 2006

JOAN CAROLINE HAYES	Plaintiff
and
LEANNE MICHELLE HAYES	Defendant

BRISBANE

..DATE 29/01/2008

ORDER

HER HONOUR: This is an application for summary judgment by a defendant, pursuant to Rule 293 of the Uniform Civil Procedure Proceedings Rules, UCPR.

Rule 293, like Rule 292, which applies to plaintiffs, sets out the tests that must be applied by the Court in determining whether or not summary judgment should be given. As the Court of Appeal held in Deputy Commissioner of Taxation v Salcedo [2005] QCA 227, it is the test propounded in those Rules, rather than the previous procedure of the Court under the Rules of the Supreme Court that must be satisfied.

Accordingly, pursuant to sub-rule 293(2) if the Court is satisfied firstly that the plaintiff has no real prospect of succeeding on all or a part of her claim and secondly, that there is no need for a trial of the claim or part of the claim, then the Court has the discretion to give judgment for the defendant against the plaintiff: see Deputy Commissioner of Taxation v Salcedo at [44].

Those Rules exist to ensure that the goal of expeditious resolution of civil proceedings at a minimum of expense is aptly met. If there are matters in genuine dispute, of course, the matter should proceed to trial, but if it is apparent on the material that the plaintiff must fail, then it is appropriate to give summary judgment and avoid the worry and expense of litigation which has an inevitable ending.

This case has many sad aspects to it. It concerns the Will of a man, Colin Herbert Olsen, who died on 19 October 2005 at the age of 60, having taken his own life. The litigation concerns a Will that was made by him dated 9 June 2005. The Will appointed his niece, who is the defendant, as his executor and major beneficiary. The other beneficiary, as to 50 per cent of the estate, was his brother. The plaintiff is his sister and the mother of the defendant who did not receive any benefit under the Will. The litigation is therefore unfortunately between mother and daughter.

The plaintiff alleges, in a statement of claim and an amended statement of claim, that the deceased lacked testamentary capacity at the time he made the Will. The question is whether or not she has any possibility of succeeding on that claim. Unfortunately for the plaintiff the evidence unequivocally points in the other direction.

The deceased saw an experienced solicitor who had been his solicitor for a very long period of time and who knew the deceased relatively well. He saw the deceased on 3 June 2005 where he took instructions as to what should be contained in the Will. The deceased brought with him a small hand-written note detailing the instructions for beneficiaries to be named in the Will. The solicitor sets out in detail what…

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 Hayes v. Hayes

Details

AGLC: Hayes v Hayes [2008] QSC 6
Case: [2008] QSC 6
Decision Date: 29 January 2008

CaseChat Overview and Summary

The Supreme Court of Queensland heard an application for summary judgment by the defendant, Leanne Michelle Hayes, against the plaintiff, Joan Caroline Hayes. The case revolves around the validity of a Will made by Colin Herbert Olsen, who passed away on 19 October 2005. The deceased appointed the defendant as the executor and primary beneficiary of his estate, while the plaintiff, who is the defendant's mother, was not mentioned in the Will. The plaintiff contests the validity of the Will, alleging that the deceased lacked testamentary capacity at the time of its creation.

The court had to determine whether there was any possibility that the plaintiff could succeed in proving that the deceased lacked testamentary capacity. The evidence presented included sworn statements from the deceased's solicitor and general practitioner, both of whom had known the deceased for many years. The solicitor, who prepared the Will, attested that there were no signs of the deceased being unfit to give instructions, and the general practitioner confirmed that the deceased appeared rational and mentally competent at the time of the Will's creation, despite suffering from depression and anxiety.

The court found that there was no evidence suggesting that the deceased lacked testamentary capacity, and all indications pointed to the deceased being fully mentally competent. The plaintiff's desire to cross-examine the solicitor and doctor was not substantiated by any evidence that could potentially change the outcome. Consequently, the court ruled that the plaintiff had no real prospect of succeeding in her claim and that there was no need for a trial. The court granted the defendant's application for summary judgment, dismissing the plaintiff's claim and the defendant's counterclaim.

Orders