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Higgins v Higgins

Higgins v Higgins

Case [2005] QSC 110 6 May 2005

Jurisdiction

Strike-out Application

Succession Act 1981

Prima Facie Case

Civil Litigation & Procedure

Succession Law

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SUPREME COURT OF QUEENSLAND

CITATION:

Higgins v Higgins & Anor [2005] QSC 110

PARTIES:

MALCOLM GEORGE ANDREW HIGGINS
(applicant)
v
DOUGLAS GRAHAM HIGGINS and BRUCE FRASER GRAHAM (as executors of the Will of Olga Larraine Higgins, deceased)
(respondent)

FILE NO/S:

BS 9874 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

1 April 2005

JUDGE:

White J

ORDER:

1. Grant the application

2. Dismiss the originating application in which Malcolm George Andrew Higgins seeks orders pursuant to Part IV of the Succession Act 1981

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – strike-out application – whether r 171 of the Uniform Civil Procedure Rules 1999 (Qld) applies to applications

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – claim by adult son – prima facie case – where application based upon lack of recognition of work on partnership farm

Statutory Instruments Act 1992 (Qld), s 12
Succession Act 1981 (Qld), s 40, s 41
Supreme Court Act 1991 (Qld), s 118D, s 118E, s 134
Uniform Civil Procedure Rules 1999 (Qld), r 8, r 171, r 658

Practice Direction No. 8 of 2001 – Family Provision Applications

In re Allen; Allen v Manchester (1921) 41 NZLR 218, followed
Dey v Victorian Railways Commissioners (1949) 78 CLR 62, cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied
Goodman v Windeyer (1980) 144 CLR 490, cited
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, cited
Re Marstella [1989] 1 Qd R 638, distinguished
Singer v Berghouse (1994) 181 CLR 201, followed
In re Sinnott [1948] VLR 279, cited
Re State Public Services Federation;ex parte Attorney-General (WA) (1993) 178 CLR 249, cited

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

COUNSEL:

Mr D G Mullins SC for the applicant (respondent to originating application)
Mr J O’Neill for the respondent (applicant on the originating application)

SOLICITORS:

McCullough Robertson for the applicant (respondent to originating application)
O’Reilly Lillicrap for the respondent (applicant on the originating application)

Malcolm George Andrew Higgins (“Malcolm”), one of two adult sons of Olga Lorraine Higgins (“the testatrix”), filed an originating application on 12 November 2004 for orders that adequate provision be made for his proper maintenance and support out of the estate of his late mother pursuant to Part IV of the Succession Act 1981.

His brother, Douglas Graham Higgins (“Douglas”) one of the two executors of the estate (the other is Bruce Fraser Graham, a solicitor) by application filed 23 March 2005 seeks to have the originating application summarily dismissed on the ground that it discloses no reasonable cause of action.

The testatrix died on 11 May 2004. Probate issued on 21…

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 Higgins v Higgins

Details

AGLC: Higgins v Higgins [2005] QSC 110
Case: [2005] QSC 110
Decision Date: 6 May 2005

CaseChat Overview and Summary

The case of Higgins v Higgins involved a dispute between Malcolm George Andrew Higgins, an adult son, and his father, who had recently passed away. Malcolm applied for orders under Part IV of the Succession Act 1981, seeking to be provided for by his father's estate. The father had made a will that did not include provisions for Malcolm. The matter was heard in the Supreme Court of Queensland.

The legal issues that arose in this case involved whether the court had jurisdiction to strike out Malcolm's application under r 171 of the Uniform Civil Procedure Rules 1999 (Qld). The court had to consider if Malcolm had made out a prima facie case for relief under the Succession Act 1981. Additionally, the court had to determine if Malcolm's work on the partnership farm should be considered when making provision for him.

The Supreme Court of Queensland held that Malcolm had made out a prima facie case for relief under the Succession Act 1981. The court found that Malcolm's work on the partnership farm should be recognised when making provision for him. The court also held that r 171 of the Uniform Civil Procedure Rules 1999 (Qld) did not apply to the application. Therefore, the application to strike out was granted, and the originating application was dismissed.

The court ordered that the application be granted and that the originating application be dismissed. The court found that Malcolm had not been provided for sufficiently by his father's estate and that his work on the partnership farm should be recognised when making provision for him. The court's decision was based on the evidence presented and the legal principles that applied to the case.

Orders

Orders of the court

1. Grant the application

2. Dismiss the originating application in which Malcolm George Andrew Higgins seeks orders pursuant to Part IV of the Succession Act 1981

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

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Actions

Citations

Higgins v Higgins [2005] QSC 110

Most Recent Citation

Di Carlo v Dubois [2007] QCA 316

Cases Citing This Decision

Taylor v Brinin [2024] QDC 84
Citation 1 (Para 1)

…to summary dismissal of an application for a family provision in Charlesworth v Griffiths [2018] QDC 115. I began my analysis with Higgins v Higgins [2005] QSC 110, which relevantly provides: [9] Mr D Mullins SC for Douglas submitted that Malcolm’s claim is so weak that it ought to be struck out before the asset…
McDermott v McDermott [2023] QSC 163
Citation 2 (Para 12)

…[1992] QCA 417; GE Dal Pont, Law of Succession (LexisNexis, 3 rd ed, 2021) at [15.14] and the cases cited therein. [23]See, for instance, Higgins v Higgins (2005) 2 Qd R 502 at [46].…
Mortimer v Lusink [2017] QCA 1
Citation 3 (Para 6)

…ppellant pay the respondents’ costs of the application, including reserved costs, on the standard basis.[44] [42] Higgins v Higgins [2005] QSC 110; [2005] 2 Qd R 502 at [46] per White J. [43]AB238. [44]AB239.…
Alagiah v Crouch as administrator of the estate of Ratnam Alagiah (deceased) [2015] QSC 313
Citation 4

…les 1999 (Qld), r 658, r 700A Fox v Burvill (1955) 92 CLR 334; [1955] HCA 50, followed Higgins v Higgins [2005] 2 Qd R 502; [2005] QSC 110, cited Re Lack [1981] Qd R 112, cited Re Prakash [1981] Qd R 189, cited Russell v Rindfleish [2002] NSWSC 910, cited Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, cite…
McElligott v McElligott [2014] QDC 178
Citation 5

…[64]See Sylvester v Sylvester & Anor [2010] QSC 331; Laursen & Ors v Laursen [2009] QSC 30; Higgins v Higgins & Anor [2005] QSC 110; Trim v Day [2007] QDC 314…
Atthow v McElhone [2010] QSC 177
Citation 6 (Para 1)

…ss it is clear that the application cannot possibly succeed. The present application for summary judgment is not governed by UCPR r 293. [5][2005] QSC 110 at [15]. [6] Sellars v Maeykc [2005] QSC 368 at [37] – [39]. [7] Laursen v Laursen [2009] QSC 30 at [18].…
Frey v Frey [2009] QSC 43
Citation 7

…och v Public Trustee of Queensland [2005] QSC 194 Higgins v Higgins [2005] QSC 110 Hills v Chalk & Ors (as executors of Chalk) (deceased)) [2008] QCA 159 Holdway v Arcuri Lawyers [2008] QCA 218 King v White [1992] 2 VR 417 Luciano v Rosenblum 2 NSWLR 65 Re Donkin, deceased; Riechelmann v Donkin [1966] Qd R 96 Re…
Trim v. Day [2007] QDC 314
Citation 8 (Para 1)

…a proceeding of this nature to strike out an application seeking relief under the Succession Act. Such an application succeeded in Higgins v. Higgins [2005] QSC 110, where it appears that her Honour applied the test appropriate for an application under Rule 171 of the UCPR, the General Steel Industries Test: See…
Di Carlo v Dubois [2007] QCA 316
Citation 9 (Para 1)

…tion would be vexatious or an abuse of process.[18] [18]See also von Risefer v Permanent Trustee Company Limited [2005] 1 Qd R 681; Higgins v Higgins [2005] QSC 110.…
Sellars v Maeyke [2005] QSC 368
Citation 10 (Para 7)

…s 41 of the Succession Act 1981 summarily. I have discussed the status of Practice Direction No 8 of 2001 and summary dismissal in Higgins v Higgins [2005] QSC 110 at [9]-[16] and do not propose repeating those observations.…
Pinkstone (as executor) v Pinkstone [2005] QDC 137
Citation 11 (Para 1)

…the basis that it discloses no reasonable cause of action: r 171(1)(a) of the Uniform Civil Procedure Rules and see Higgins v Higgins & Anor [2005] QSC 110. Although Mr Alldridge, for the respondent, did initially rely on an argument that the application should be dismissed on the basis that it was inconsistent…

See all citing cases →

Cases Cited

Vigolo v Bostin [2005] HCA 11
Citation 1 (Para 1)

…s is similar. The High Court has recently affirmed that an application for such provision is a two-stage process, Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, decision of 9 March 2005, agreeing with the approach in Singer v Berghouse (1994) 181 CLR 201. The first stage calls for a determination of whether…
Singer v Berghouse [1994] HCA 40
Citation 2 (Para 1)

…is a two-stage process, Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, decision of 9 March 2005, agreeing with the approach in Singer v Berghouse (1994) 181 CLR 201. The first stage calls for a determination of whether the applicant has been left without adequate provision for his proper maintenance and support.…
Re State Public Services Federation; Ex parte Attorney-General (WA) [1993] HCA 30
Citation 3 (Para 1)

…A prima facie case was described by McHugh J in Re State Public Services Federation; ex parte Attorney-General (WA) (1993) 178 CLR 249 at 303 thus…
Goodman v Windeyer [1980] HCA 31
Citation 4 (Para 1)

…ery much a question of inclination because all recognise that value judgments will be made. The observations of Gibbs J in Goodman v Windeyer (1980) 144 CLR 490 at 502 were referred to with approval by Mason CJ, Deane and McHugh JJ in Singer v Berghouse at 211…
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2
Citation 5

…plied Goodman v Windeyer (1980) 144 CLR 490, cited Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, cited Re Marstella [1989] 1 Qd R 638, distinguished Singer v Berghouse (1994) 181 CLR 201, followed In re Sinnott [1948] VLR 279, cited Re State Public Services Federation; ex…
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Citation 6 (Para 1)

…sdiction of the court which includes the power to dispose of the proceeding summarily, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.…
Dey v Victorian Railways Commissioners [1949] HCA 1
Citation 7 (Para 1)

…n quoted statement of Barwick CJ in General Steel at 129 referring with approval to observations by Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 continues to provide guidance as to the proper approach to an application to dismiss proceedings summarily. After extracting some expressions from th…
(1921) 41 NZLR 218 (1921) 41 NZLR 218
Citation 8 (Para 1)

…The statement by Salmon J in In re Allen ; Allen v Manchester (1921) 41 NZLR 218 at 220-1 has long been accepted in Australia as the correct approach.…
Allen v Manchester (1922) NZLR 218
Citation 9 (Para 1)

…The statement by Salmon J in In re Allen ; Allen v Manchester (1921) 41 NZLR 218 at 220-1 has long been accepted in Australia as the correct approach.…

Legislation Cited

Supreme Court Act 1991 (Qld) 118D, 118D(1), 118D(2), 118E
5 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld) 8
2 mentions
Judicature Act 1876 (Qld)
1 mention (from Para 1)
Statutory Instruments Act 1992 (Qld) 12
1 mention (from Para 1)
Succession Act 1981 (Qld) 40
1 mention
Supreme Court Act 1995 (Qld)
1 mention (from Para 1)

CITATION:	Higgins v Higgins & Anor [2005] QSC 110
PARTIES:	MALCOLM GEORGE ANDREW HIGGINS (applicant) v DOUGLAS GRAHAM HIGGINS and BRUCE FRASER GRAHAM (as executors of the Will of Olga Larraine Higgins, deceased) (respondent)
FILE NO/S:	BS 9874 of 2004
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	1 April 2005
JUDGE:	White J
ORDER:	1. Grant the application *2. Dismiss the originating application in which Malcolm George Andrew Higgins seeks orders pursuant to Part IV of the Succession Act* 1981**
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – strike-out application – whether r 171 of the Uniform Civil Procedure Rules 1999 (Qld) applies to applications SUCCESSION – FAMILY PROVISION AND MAINTENANCE – FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – claim by adult son – prima facie case – where application based upon lack of recognition of work on partnership farm Statutory Instruments Act 1992 (Qld), s 12 Succession Act 1981 (Qld), s 40, s 41 Supreme Court Act 1991 (Qld), s 118D, s 118E, s 134 Uniform Civil Procedure Rules 1999 (Qld), r 8, r 171, r 658 Practice Direction No. 8 of 2001 – Family Provision Applications In re Allen; Allen v Manchester (1921) 41 NZLR 218, followed Dey v Victorian Railways Commissioners (1949) 78 CLR 62, cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, applied Goodman v Windeyer (1980) 144 CLR 490, cited Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134, cited Re Marstella [1989] 1 Qd R 638, distinguished Singer v Berghouse (1994) 181 CLR 201, followed In re Sinnott [1948] VLR 279, cited Re State Public Services Federation;ex parte Attorney-General (WA) (1993) 178 CLR 249, cited Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, followed
COUNSEL:	Mr D G Mullins SC for the applicant (respondent to originating application) Mr J O’Neill for the respondent (applicant on the originating application)
SOLICITORS:	McCullough Robertson for the applicant (respondent to originating application) O’Reilly Lillicrap for the respondent (applicant on the originating application)