Kowalski v Kowalski - [2012] QCA 234

SUPREME COURT OF QUEENSLAND

CITATION:

Kowalski v Kowalski & Ors [2012] QCA 234

PARTIES:

LEIGH ANNE-LOUISE KOWALSKI
(appellant)
v
ELIZABETH ANN KOWALSKI
(first respondent)
THE PUBLIC TRUSTEE AS EXECUTOR FOR THE ESTATE OF STAN KOWALKSI (Deceased)
ACN 099 042 547
(second respondent)
JOHN SHANAHAN AND JOANNE DUNN AS TRUSTEES FOR THE BANKRUPT ESTATE OF LEIGH ANN-LOUISE KOWALSKI
(third respondent)

FILE NO/S:

Appeal No 11418 of 2011
SC No 243 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

31 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 August 2012

JUDGES:

Margaret McMurdo P, Gotterson JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. Costs of the first respondent and of the second respondent of the appeal be assessed on the indemnity basis and be paid out of the estate.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – APPEALS – where second respondent widow applied successfully under Part IV of the Succession Act 1981 for further provision out of the testator’s estate – where appellant daughter of testator challenged the provision provided for the widow – where a comparatively small estate with several serious and deserving claims – where appellant economically disadvantaged – whether trial judge had little or no regard for the claim of the appellant upon the testator’s bounty – whether there has been a miscarriage in the exercise of discretion by the primary judge as conferred by the Act

Succession Act 1981 (Qld), Part IV

Court v Hunt, unreported, New South Wales Supreme Court, 14 September 1987, cited
Crisp v Burns Philp Trustee Co Ltd, unreported, New South Wales Supreme Court, 18 December 1979, cited
Golosky v Golosky [1993] NSWCA 111, applied
Milillo v Konnecke [2009] NSWCA 109, cited
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, cited

COUNSEL:

The appellant appeared on her own behalf
D Ryan for the first respondent
J I Otto for the second respondent
J Shanahan, with J Dunn, for the third respondent

SOLICITORS:

The appellant appeared on her own behalf
South & Geldard Solicitors for the first respondent
Official Solicitor for the second respondent
Dibbs Barker for the third respondent

MARGARET McMURDO P: This appeal should be dismissed for the reasons given by Gotterson JA. I agree with the orders proposed by his Honour.

GOTTERSON JA: The testator, Stanislaw Kowalski, died on 15 August 2009 aged 83 years.

The appellant, Leigh Anne-Louise Kowalski is the daughter and only natural child of the testator. She was born on 25 June 1969. She has four children. She has never married. She was declared bankrupt on 16 March 2010 on a debtor’s petition.

The testator and the appellant’s natural mother separated when she was about two years old. On 25 January 1984, the testator married Elizabeth Ann Kowalski who survived him. They had cohabited for about five years prior to…

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 Kowalski v Kowalski

Details

AGLC: Kowalski v Kowalski [2012] QCA 234
Case: [2012] QCA 234
Decision Date: 31 August 2012

CaseChat Overview and Summary

In the case, Kowalski v Kowalski, the deceased's widow sought further provision from the estate under Part IV of the Succession Act 1981, which was granted by the trial judge. The deceased's daughter contested the provision, arguing that the trial judge had not properly considered her claim. The widow's claim was successful despite the estate being relatively small and having several claims, with the daughter being economically disadvantaged. The daughter appealed the decision, questioning whether the trial judge had exercised the discretion conferred by the Act correctly.

The central legal issues for the court to determine were whether the trial judge had failed to consider the daughter's claim adequately and whether there had been a miscarriage in the exercise of discretion by the primary judge. The court had to consider the relevant statutory provisions and case law to determine whether the trial judge's decision was correct.

The court found that the trial judge had indeed considered the daughter's claim, albeit briefly, and had exercised their discretion appropriately in light of the statutory criteria and the evidence presented. The court concluded that there was no miscarriage of discretion and dismissed the appeal. The court ordered that the costs of the appeal be paid by the respondents on an indemnity basis, to be met by the estate.

In summary, the appeal was dismissed, and the costs of the appeal were to be assessed and paid out of the estate. The court found that the trial judge had exercised their discretion correctly, and there was no miscarriage in the exercise of discretion.

Orders

Orders of the court

1. Appeal dismissed.

2. Costs of the first respondent and of the second respondent of the appeal be assessed on the indemnity basis and be paid out of the estate.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kowalski v Kowalski & Ors [2012] QCA 234
PARTIES:	LEIGH ANNE-LOUISE KOWALSKI (appellant) v ELIZABETH ANN KOWALSKI (first respondent) THE PUBLIC TRUSTEE AS EXECUTOR FOR THE ESTATE OF STAN KOWALKSI (Deceased) ACN 099 042 547 (second respondent) JOHN SHANAHAN AND JOANNE DUNN AS TRUSTEES FOR THE BANKRUPT ESTATE OF LEIGH ANN-LOUISE KOWALSKI (third respondent)
FILE NO/S:	Appeal No 11418 of 2011 SC No 243 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	31 August 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 August 2012
JUDGES:	Margaret McMurdo P, Gotterson JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed. 2. Costs of the first respondent and of the second respondent of the appeal be assessed on the indemnity basis and be paid out of the estate.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – APPEALS – where second respondent widow applied successfully under Part IV of the Succession Act 1981 for further provision out of the testator’s estate – where appellant daughter of testator challenged the provision provided for the widow – where a comparatively small estate with several serious and deserving claims – where appellant economically disadvantaged – whether trial judge had little or no regard for the claim of the appellant upon the testator’s bounty – whether there has been a miscarriage in the exercise of discretion by the primary judge as conferred by the Act Succession Act 1981 (Qld), Part IV Court v Hunt, unreported, New South Wales Supreme Court, 14 September 1987, cited Crisp v Burns Philp Trustee Co Ltd, unreported, New South Wales Supreme Court, 18 December 1979, cited Golosky v Golosky [1993] NSWCA 111, applied Milillo v Konnecke [2009] NSWCA 109, cited Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, cited
COUNSEL:	The appellant appeared on her own behalf D Ryan for the first respondent J I Otto for the second respondent J Shanahan, with J Dunn, for the third respondent
SOLICITORS:	The appellant appeared on her own behalf South & Geldard Solicitors for the first respondent Official Solicitor for the second respondent Dibbs Barker for the third respondent