In the matter of the Public Trustee of Queensland as Administrator of the estate of KH, deceased - [2017] QSC 48

SUPREME COURT OF QUEENSLAND

CITATION:

In the matter of the Public Trustee of Queensland as Administrator of the estate of KH, deceased [2017] QSC 48

PARTIES:

THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator of the estate of KH, deceased

(applicant)

FILE NO/S:

BS No 753 of 2017

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2017

JUDGE:

Ann Lyons J

ORDER:

1.   Pursuant to section 134 of the Public Trustee Act 1978 the Public Trustee of Queensland as Administrator of the Queensland estate of KH, is advised and directed to distribute the Queensland estate of the deceased to the persons entitled under Part 3 of the Succession Act 1981.

2.   The applicant’s costs of the application be assessed on the indemnity basis and be paid out of the estate.

3.   Counsel’s Advice, the Family Tree and the Statement of Assets as at 21 March 2017 to be sealed in an envelope and marked not to be opened without an order of the Court.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where the deceased’s domicile at the time of death was Japan – where the deceased died Intestate – where the deceased left moveable property in Queensland – where the deceased was survived by a first cousin – where Japanese intestacy law does not recognise first cousins as next of kin – where Part 3 of the Succession Act 1981 (Qld) recognises first cousins as next of kin – where the Public Trustee of Queensland applies pursuant to s 134 of the Public Trustee Act 1978 (Qld) for advice and/or directions from the Court as to whether it should distribute the Queensland estate of the deceased to the persons entitled under Part 3 of the Succession Act 1981 (Qld) – whether the Queensland estate of the deceased should be distributed according to Queensland law

Succession Act 1981 (Qld), s 25, s 27
Public Trustee Act 1978 (Qld), s 134

Brown v New South Wales Trustee and Guardian [2012] NSWCA 431
In re Barnett’s Trusts [1902] 1 Ch 847

COUNSEL:

G R Dickson for the applicant

SOLICITORS:

Official Solicitor to the Public Trustee for the applicant

This application

At the hearing of this application on 22 March 2017 I made orders pursuant to s 134 of the Public Trustee Act 1978 (Qld) and indicated that I would publish my reasons at a later date. These are those reasons.
KH died aged 63 years in Kochi City, Japan on 26 September 2010. He had been born in 1947. His only sibling, a sister, had been born in 1949 but she died the same year. His father died in 1991 and his mother in 1999. It would appear however that he had at least one maternal first cousin living in Japan at the time of his death.
When he died he left an estate in Japan valued in excess of…

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.

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Details

AGLC: In the matter of the Public Trustee of Queensland as Administrator of the estate of KH, deceased [2017] QSC 48
Case: [2017] QSC 48
Decision Date: 5 April 2017

CaseChat Overview and Summary

The case involves the Public Trustee of Queensland as Administrator of the estate of KH, a Japanese national who died intestate in Japan but left movable property in Queensland. The deceased was survived by a first cousin, but Japanese intestacy law does not recognise first cousins as next of kin, whereas Queensland law does. The Public Trustee of Queensland applied to the court for advice and/or directions regarding the distribution of the deceased's Queensland estate under the Succession Act 1981 (Qld).

The court was required to determine which law should govern the distribution of the deceased's Queensland estate. The court considered the relevant Japanese law, the decision of the Kochi Family Court, and the provisions of the Succession Act 1981 (Qld). The court concluded that the Japanese Treasury did not have a claim to the Queensland Estate by succession and had no authority over the Queensland Estate. Therefore, the deceased's Queensland estate should be distributed to his next of kin under Part 3 of the Succession Act 1981 (Qld).

The court directed the Public Trustee of Queensland to distribute the Queensland estate of the deceased to the persons entitled under Part 3 of the Succession Act 1981 (Qld). The court also ordered that the applicant's costs of the application be assessed on the indemnity basis and be paid out of the estate. Additionally, Counsel’s Advice, the Family Tree and the Statement of Assets as at 21 March 2017 were to be sealed in an envelope and marked not to be opened without an order of the Court.

Orders

Orders of the court

1. Pursuant to section 134 of the Public Trustee Act 1978 the Public Trustee of Queensland as Administrator of the Queensland estate of KH, is advised and directed to distribute the Queensland estate of the deceased to the persons entitled under Part 3 of the Succession Act 1981.

2. The applicant’s costs of the application be assessed on the indemnity basis and be paid out of the estate.

3. Counsel’s Advice, the Family Tree and the Statement of Assets as at 21 March 2017 to be sealed in an envelope and marked not to be opened without an order of the Court.

Background

Background to the litigation

For the reasons that follow I am satisfied that the PTQ should be advised and directed that he can distribute the Queensland Estate of the deceased to the persons entitled pursuant to Part 3 of the Succession Act (Qld). The Japanese appointed Administrator therefore has no interest in the Queensland Estate as there are heirs to the Queensland Estate. There is therefore no unclaimed estate in Queensland which would pass to the Japanese Treasury bona vacantia. Background The deceased was born in Japan and between 1986 and 1995 he travelled regularly between Japan and Australia. He resided in Australia from 1997 to 1999 and returned to live in Japan in 1999 where he resided for eleven years before his death.[2] He was never married and left no issue.[3] [2] Ibid, Exhibit “LFB-5” pp 1-3. [3] Ibid, at [4]. At the date of the application the value of the deceased’s Queensland estate was $1,534,672.87. The estate is made up of three bank accounts. Mr Tsutsumi, the lawyer who has been appointed by the Japanese Family Court, engaged Hartnett Lawyers of Surfers Paradise to act on his behalf in Australia in relation to the Australian estate. On 27 June 2012, Hartnett Lawyers sent a letter[4] to PTQ advising that they were acting on Mr Tsutsumi’s instructions to administer the deceased’s Queensland estate. Relevantly the letter provided that the deceased’s domicile of origin was considered to be Japan because the deceased was born in Japan and had only briefly resided in Australia before returning to Japan some 11 years before his death. As such, the letter stated that the deceased’s domicile at the time of his death was therefore Japan. [4] Ibid, Exhibit “LFB-5”. Furthermore it was noted that as the estate in Queensland consisted entirely of the proceeds of bank accounts, under Japanese Law, they also belonged to the Japanese Treasury. Hartnett Lawyers also indicated that their understanding was that in Queensland when an intestate is not survived by issue, parent or next of kin, “the residuary estate shall be deemed to be bona vacantia and the Crown is entitled to it.” The also letter referred to the Articles of the Japanese Code. Translated copies of the Japanese Code were provided to the PTQ in a further letter dated 30 August 2012 as follows:“Article 959 (Residual Assets Belong to the National Treasurer)Inherited property that has not been disposed of pursuant to the provisions of the preceding Article shall belong to the National Treasury. In this case, the provisions of paragraph (2) of Article 956 shall apply mutatis mutandis.” Article 956 (Extinguishment of Authority of Representation of Administrator of Inherited Property) The authority of representation of an administrator of inherited property shall be extinguished from the time that an heir accepts inheritance. In the case referred to in the preceding paragraph, the administrator of inherited property shall make an account of profit and loss to the heir without delay.”What law governs the property in Queensland?

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 7 August 2014, the Kochi Family Court, Japan, considered a petition made by Mr Tsutsumi as the Administrator of the deceased’s Japanese estate and granted the Administrator permission to:“…renounce the following deposits and savings claim, which constitute a part of the Decedent’s Estate, and to exclude the same from the Decedent’s Estate;-1 Australia and New Zealand Banking Group Limited (Account No. xxxx)2 Westpac Bank (Account No xxxx)3 Westpac Bank (Account No. xxxx)”.[9][9]Affidavit of Linda Fay Blackburne (Court Document 3), Exhibit “LFB-7” is a certified copy of the Administrative Correspondence issued by the Kochi Family Court on 11 August 2014 and an English translation of that Administrative Correspondence.Conclusion After a consideration of the extensive Advice of Counsel for the Applicant together with his submissions with respect to this application, the relevant Japanese Law, the decision of the Kochi Family Court Japan dated 7 August 2014 and the provisions of the Succession Act 1981 (Qld), I am satisfied that the Japanese Treasury does not have a claim to the Queensland Estate by succession and has no authority over the Queensland Estate. Accordingly I am satisfied that Mr Tsutsumi has no authority over the deceased’s Queensland Estate. I therefore consider that the effect of the decision of the Kochi Family Court, Japan, is that the deceased’s Queensland estate should be distributed to his next of kin under Part 3 of the Succession Act 1981 (Qld).Order The order of the Court is as per the Order which has been initialled by me and placed with the file. I also order that Counsel’s Advice, the Family Tree and the Statement of Assets as at 21 March 2017 be sealed in an envelope and marked not to be opened without an order of the Court.1.Pursuant to section 134 of the Public Trustee Act 1978 the Public Trustee of Queensland as Administrator of the Queensland estate of KH, is advised and directed to distribute the Queensland estate of the deceased to the persons entitled under Part 3 of the Succession Act 1981.2.The applicant’s costs of the application be assessed on the indemnity basis and be paid out of the estate.3.Counsel’s Advice, the Family Tree and the Statement of Assets as at 21 March 2017 to be sealed in an envelope and marked not to be opened without an order of the Court.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	In the matter of the Public Trustee of Queensland as Administrator of the estate of KH, deceased [2017] QSC 48
PARTIES:	THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator of the estate of KH, deceased (applicant)
FILE NO/S:	BS No 753 of 2017
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 April 2017
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2017
JUDGE:	Ann Lyons J
ORDER:	1. Pursuant to section 134 of the Public Trustee Act 1978 the Public Trustee of Queensland as Administrator of the Queensland estate of KH, is advised and directed to distribute the Queensland estate of the deceased to the persons entitled under Part 3 of the Succession Act 1981. 2. The applicant’s costs of the application be assessed on the indemnity basis and be paid out of the estate. 3. Counsel’s Advice, the Family Tree and the Statement of Assets as at 21 March 2017 to be sealed in an envelope and marked not to be opened without an order of the Court.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – where the deceased’s domicile at the time of death was Japan – where the deceased died Intestate – where the deceased left moveable property in Queensland – where the deceased was survived by a first cousin – where Japanese intestacy law does not recognise first cousins as next of kin – where Part 3 of the Succession Act 1981 (Qld) recognises first cousins as next of kin – where the Public Trustee of Queensland applies pursuant to s 134 of the Public Trustee Act 1978 (Qld) for advice and/or directions from the Court as to whether it should distribute the Queensland estate of the deceased to the persons entitled under Part 3 of the Succession Act 1981 (Qld) – whether the Queensland estate of the deceased should be distributed according to Queensland law Succession Act 1981 (Qld), s 25, s 27 Public Trustee Act 1978 (Qld), s 134 Brown v New South Wales Trustee and Guardian [2012] NSWCA 431 In re Barnett’s Trusts [1902] 1 Ch 847
COUNSEL:	G R Dickson for the applicant
SOLICITORS:	Official Solicitor to the Public Trustee for the applicant