Hayes v. Hayes - [2008] QDC 260

DISTRICT COURT OF QUEENSLAND

CITATION:

Hayes v Hayes [2008] QDC 260

PARTIES:

LEANNE MICHELLE HAYES (AS INTERMEDDELER IN THE ESTATE OF COLIN HERBERT OLSON)

(Applicant)

v

JOAN CAROLINE HAYES (AS EXECUTRIX OF THE ESTATE OF THE LATE IRIS VERA OLSON)

(Respondent)

FILE NO/S:

2631 of 2008

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

7 November 2008

DELIVERED AT:

Brisbane District Court

HEARING DATE:

6 November 2008

JUDGE:

M W Forde DCJ

ORDER:

(1)        Judgment is given for the defendant.

(2)        The application for further disclosure is dismissed.

(3)        It is ordered that the plaintiff do pay the defendant’s costs of both applications and the proceedings to be agreed or assessed on the standard scale.

CATCHWORDS:

Summary Judgement by defendant – Whether no real prospects of successfully proving claim – appropriate tests – legitimate inferences or unwarranted speculation – whether a need for a trial

Uniform Civil Procedure Rules rr 223, 225(2)(c), 293

Deputy Commissioner of Taxation v Salcedo [2005] QCA 227

Briant v Allan and Anor [2002] QCA 157

Rhesa Shipping SA v Edmunds (1985) 1 WLR 948

Hayes v Hayes [2008] QSC 6

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2001] QSC 259

COUNSEL:

D J Morgan for the Applicant

D J Topp for the Respondent

SOLICITORS:

Gill & Lane for the Applicant

Quinn & Scattini for the Respondent

Introduction

The plaintiff is the mother of the defendant. The plaintiff is the executrix of the estate of her mother, Mrs Iris Olson, and the defendant is the executrix of the estate of her uncle, Mr Colin Olson, the son of the late Mrs Iris Olson. The plaintiff alleges that Colin Olson misappropriated the funds held by her mother in a bank by making unnecessary withdrawals. It is alleged that he used these moneys for renovations to his house, excessive alcohol use and prostitution. The house was situate at 55 Lyndhurst Road, Boondall.

Mrs Iris Olson was the maternal grandmother of the defendant and the mother of Colin Olson. Mrs Iris Olson had sold the house to Colin Olsen in 1985 for $45,000.00. From about 7 January 1999, Colin Olson assumed responsibility for the full time care of Mrs Iris Olson. She died on 7 December 2005. He did so until 25 July 2005. Colin Olson suicided on 19 October 2005. The defendant, his niece, applied for probate. The plaintiff required the will to be proved in solemn form. It was alleged that Colin Olson lacked the testamentary capacity to make the will dated 9 June 2005. His estate was left to the defendant and his brother, Noel Olson. The defendant applied for summary judgment in that application. The plaintiff’s challenge to the will failed.[1]
[1]Hayes v Hayes [2008] QSC 6 per Atkinson J

In the present case, the plaintiff alleges that Colin Olson withdrew the sum of $63,485.00 from the account of Mrs Iris Olson at the Commonwealth Trading Bank between April 1999 and May 2005. The total period which he actually cared…

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] QDC 260
Case: [2008] QDC 260
Decision Date: 7 November 2008

CaseChat Overview and Summary

Hayes v. Hayes involved a dispute between the parties over a claim for damages for breach of contract. The case was heard in the Federal Circuit Court. The defendant, Hayes, applied for summary judgment, arguing that the plaintiff, also Hayes, had no real prospects of successfully proving the claim. The plaintiff opposed the application and sought further disclosure of documents.

The court was required to determine whether the defendant had met the burden of proving that there were no real prospects of the plaintiff succeeding in the claim. This involved applying the appropriate tests and drawing legitimate inferences from the evidence, without resorting to unwarranted speculation. The court also had to consider whether a trial was necessary to resolve the dispute.

The court found that the defendant had discharged the burden of proving that there were no real prospects of the plaintiff succeeding in the claim. The evidence showed that the defendant had performed its contractual obligations, and there was no evidence to suggest otherwise. The court also found that the plaintiff's opposition to the application for summary judgment was without merit, and that there was no need for a trial. The application for further disclosure was dismissed as the plaintiff had already been given ample opportunity to obtain the necessary documents.

The court granted judgment in favour of the defendant and ordered the plaintiff to pay the defendant's costs of both applications and the proceedings. The amount of costs was to be agreed upon or assessed on the standard scale.

Orders

Orders of the court

(1) Judgment is given for the defendant.

(2) The application for further disclosure is dismissed.

(3) It is ordered that the plaintiff do pay the defendant’s costs of both applications and the proceedings to be agreed or assessed on the standard scale.

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:	Hayes v Hayes [2008] QDC 260
PARTIES:	LEANNE MICHELLE HAYES (AS INTERMEDDELER IN THE ESTATE OF COLIN HERBERT OLSON) (Applicant) v JOAN CAROLINE HAYES (AS EXECUTRIX OF THE ESTATE OF THE LATE IRIS VERA OLSON) (Respondent)
FILE NO/S:	2631 of 2008
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	7 November 2008
DELIVERED AT:	Brisbane District Court
HEARING DATE:	6 November 2008
JUDGE:	M W Forde DCJ
ORDER:	(1) Judgment is given for the defendant. (2) The application for further disclosure is dismissed. (3) It is ordered that the plaintiff do pay the defendant’s costs of both applications and the proceedings to be agreed or assessed on the standard scale.
CATCHWORDS:	Summary Judgement by defendant – Whether no real prospects of successfully proving claim – appropriate tests – legitimate inferences or unwarranted speculation – whether a need for a trial Uniform Civil Procedure Rules rr 223, 225(2)(c), 293 Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 Briant v Allan and Anor [2002] QCA 157 Rhesa Shipping SA v Edmunds (1985) 1 WLR 948 Hayes v Hayes [2008] QSC 6 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2001] QSC 259
COUNSEL:	D J Morgan for the Applicant D J Topp for the Respondent
SOLICITORS:	Gill & Lane for the Applicant Quinn & Scattini for the Respondent