Kirkpatrick v Kavulak - [2005] QSC 282

SUPREME COURT OF QUEENSLAND

CITATION:

Kirkpatrick v Kavulak [2005] QSC 282

PARTIES:

DAVID KEITH KIRKPATRICK
(applicant/cross respondent)
v
DIANA ROBIN KAVULAK as executrix of the estate of HERMOINE PHYLLIS KIRKPATRICK
(respondent/cross applicant)

FILE NO/S:

BS 4739 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT: Brisbane

DELIVERED ON:

12 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2005

JUDGE:

McMurdo J

ORDER:

1.          That in the accounts of the estate prepared up to 16 September 2005, forming exhibit “RKJ-12” to the Affidavit of Ray Keith Johnson filed 26 September 2005, the disbursement in the schedule of St George Account - Disbursements, in whole or in part as set out in the SCHEDULE below:-

(a)        be disallowed as disbursements made by the executor on behalf of the estate;

(b)        be treated in the said accounts as disbursements made on behalf of Mrs Diana Robin Kavulak personally and as payments made in anticipation of a distribution to her as beneficiary;

(c)        that in further distributions to beneficiaries, the said amount be notionally added back in, for the purpose of calculating the entitlements of each beneficiary to a further distribution;

(d)        that all necessary book entries necessary to give effect to these orders and directions be made forthwith in the accounts of the estate.

SCHEDULE

(1) Item 40 Marriott Forman     $200.00 from Capital (whole);

(2) Item 46 Marriott Forman     $1,364.20 from Capital (whole);

(3) Item 47 Johnsons Solicitors $18,233.13 from capital (in part as to $1,529.09);

(4) Item 48 Diana Kavulak        $3,298.00 from capital (in part as to $1,540.00);

(5) Item 63 Peterson                   $4,455.00 from capital (whole);

(6) Item 64 Johnsons Solicitors $7521.21 from capital (in part as to $7,000.00).

2.          The executrix be allowed commission for her pains and troubles in the administration of the estate as follows:-

(a)        The executrix receive and be entitled to retain from the estate accounts the sum of $20,000.00; together with

(b)        The sum of $6,412.79 already paid forming item 65 in the disbursements in forming part of exhibit “RKJ-12".

3.          The accounts prepared by Marriott Forman accountants, contained in exhibit “RKJ-12", amended in accordance with the terms of the orders and directions herein, are passed.

4.          The balance of the entitlement to distribution of the applicant David Keith Kirkpatrick, calculated in accordance with these orders and directions, be paid to him by the respondent Diana Robin Kavulak within twenty-one (21) days of this order.

5.          The application filed 10 June 2005 be further adjourned to be brought on by either party on thee (3) business days notice in writing.

6.          There be no order for costs in favour of either of the parties in respect of either the costs to date of the application filed 10 June 2005(including the costs reserved by Muir J. on 07 July 2005) or in respect of the costs of the application for commission with the intent that such costs shall not be costs of the estate.

CATCHWORDS:

SUCCESSION – OTHER MATTERS – where testatrix appointed both the applicant…

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 Kirkpatrick v Kavulak

Details

AGLC: Kirkpatrick v Kavulak [2005] QSC 282
Case: [2005] QSC 282
Decision Date: 12 October 2005

CaseChat Overview and Summary

In the case of Kirkpatrick v Kavulak, the court dealt with issues arising from the estate of a deceased person, specifically focusing on the expenses incurred by the executrix, Diana Robin Kavulak, in administering the estate. David Keith Kirkpatrick, who had previously renounced his role as joint executor, contested certain disbursements and the executrix's claim for commission. The court was tasked with determining whether certain costs related to litigation and accountancy work should be disallowed as they exceeded pre-agreed limits and if the executrix was entitled to claim commission for her efforts.

The court considered whether the costs in dispute were directly related to the litigation or if they were necessary for the administration of the estate. It was established that some of the fees and costs had been capped in a prior settlement agreement between the parties. The court held that certain items, such as legal and accountancy fees that exceeded the limits set in the prior litigation, should not be treated as disbursements of the estate. Furthermore, the court found that the preparation of a full set of accounts was necessary for the executrix to claim commission as per the Uniform Civil Procedure Rules 1999 (Qld).

The court allowed the executrix to claim a commission of $20,000 plus an additional $6,412.79 that had already been paid. The court also directed that the estate accounts be amended to reflect these decisions, with specific items being disallowed as estate disbursements and notionally added back for the purpose of calculating beneficiary entitlements. The court passed the amended accounts and ordered the executrix to pay the applicant’s share of the estate within a specified timeframe. Additionally, the court made no order for costs in relation to the proceedings to ensure these costs would not become part of the estate expenses.

In conclusion, the court disallowed certain fees and costs that exceeded pre-agreed limits and allowed the executrix to claim a specified commission for her work in administering the estate. The orders included directions for the amendment of the estate accounts and the distribution of the applicant’s entitlement within a set period.

Orders

Orders of the court

1. That in the accounts of the estate prepared up to 16 September 2005, forming exhibit “RKJ-12” to the Affidavit of Ray Keith Johnson filed 26 September 2005, the disbursement in the schedule of St George Account - Disbursements, in whole or in part as set out in the SCHEDULE below:-

(a) be disallowed as disbursements made by the executor on behalf of the estate;

(b) be treated in the said accounts as disbursements made on behalf of Mrs Diana Robin Kavulak personally and as payments made in anticipation of a distribution to her as beneficiary;

(c) that in further distributions to beneficiaries, the said amount be notionally added back in, for the purpose of calculating the entitlements of each beneficiary to a further distribution;

(d) that all necessary book entries necessary to give effect to these orders and directions be made forthwith in the accounts of the estate.

SCHEDULE

(1) Item 40 Marriott Forman $200.00 from Capital (whole);

(2) Item 46 Marriott Forman $1,364.20 from Capital (whole);

(3) Item 47 Johnsons Solicitors $18,233.13 from capital (in part as to $1,529.09);

(4) Item 48 Diana Kavulak $3,298.00 from capital (in part as to $1,540.00);

(5) Item 63 Peterson $4,455.00 from capital (whole);

(6) Item 64 Johnsons Solicitors $7521.21 from capital (in part as to $7,000.00).

2. The executrix be allowed commission for her pains and troubles in the administration of the estate as follows:-

(a) The executrix receive and be entitled to retain from the estate accounts the sum of $20,000.00; together with

(b) The sum of $6,412.79 already paid forming item 65 in the disbursements in forming part of exhibit “RKJ-12".

3. The accounts prepared by Marriott Forman accountants, contained in exhibit “RKJ-12", amended in accordance with the terms of the orders and directions herein, are passed.

4. The balance of the entitlement to distribution of the applicant David Keith Kirkpatrick, calculated in accordance with these orders and directions, be paid to him by the respondent Diana Robin Kavulak within twenty-one (21) days of this order.

5. The application filed 10 June 2005 be further adjourned to be brought on by either party on thee (3) business days notice in writing.

6. There be no order for costs in favour of either of the parties in respect of either the costs to date of the application filed 10 June 2005(including the costs reserved by Muir J. on 07 July 2005) or in respect of the costs of the application for commission with the intent that such costs shall not be costs of the estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kirkpatrick v Kavulak [2005] QSC 282
PARTIES:	DAVID KEITH KIRKPATRICK (applicant/cross respondent) v DIANA ROBIN KAVULAK as executrix of the estate of HERMOINE PHYLLIS KIRKPATRICK (respondent/cross applicant)
FILE NO/S:	BS 4739 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	12 October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2005
JUDGE:	McMurdo J
ORDER:	1. That in the accounts of the estate prepared up to 16 September 2005, forming exhibit “RKJ-12” to the Affidavit of Ray Keith Johnson filed 26 September 2005, the disbursement in the schedule of St George Account - Disbursements, in whole or in part as set out in the SCHEDULE below:- (a) be disallowed as disbursements made by the executor on behalf of the estate; (b) be treated in the said accounts as disbursements made on behalf of Mrs Diana Robin Kavulak personally and as payments made in anticipation of a distribution to her as beneficiary; (c) that in further distributions to beneficiaries, the said amount be notionally added back in, for the purpose of calculating the entitlements of each beneficiary to a further distribution; (d) that all necessary book entries necessary to give effect to these orders and directions be made forthwith in the accounts of the estate. SCHEDULE (1) Item 40 Marriott Forman $200.00 from Capital (whole); (2) Item 46 Marriott Forman $1,364.20 from Capital (whole); (3) Item 47 Johnsons Solicitors $18,233.13 from capital (in part as to $1,529.09); (4) Item 48 Diana Kavulak $3,298.00 from capital (in part as to $1,540.00); (5) Item 63 Peterson $4,455.00 from capital (whole); (6) Item 64 Johnsons Solicitors $7521.21 from capital (in part as to $7,000.00). 2. The executrix be allowed commission for her pains and troubles in the administration of the estate as follows:- (a) The executrix receive and be entitled to retain from the estate accounts the sum of $20,000.00; together with (b) The sum of $6,412.79 already paid forming item 65 in the disbursements in forming part of exhibit “RKJ-12". 3. The accounts prepared by Marriott Forman accountants, contained in exhibit “RKJ-12", amended in accordance with the terms of the orders and directions herein, are passed. 4. The balance of the entitlement to distribution of the applicant David Keith Kirkpatrick, calculated in accordance with these orders and directions, be paid to him by the respondent Diana Robin Kavulak within twenty-one (21) days of this order. 5. The application filed 10 June 2005 be further adjourned to be brought on by either party on thee (3) business days notice in writing. 6. There be no order for costs in favour of either of the parties in respect of either the costs to date of the application filed 10 June 2005(including the costs reserved by Muir J. on 07 July 2005) or in respect of the costs of the application for commission with the intent that such costs shall not be costs of the estate.
CATCHWORDS:	SUCCESSION – OTHER MATTERS – where testatrix appointed both the applicant…