SUPREME COURT OF QUEENSLAND
CITATION:
Kowalski v Public Trustee & Ors [2011] QSC 323
PARTIES:
ELIZABETH ANN KOWALSKI
(Applicant)
And
THE PUBLIC TRUSTEE AS EXECUTOR FOR THE ESTATE OF STAN KOWALSKI (DECEASED)
(First Respondent)
And
LEIGH ANNE-LOUISE KOWALSKI
(Second Respondent)
And
JOHN SHANAHAN AND JOANNE DUNN AS TRUSTEES OF THE BANKRUPT ESTATE OF LEIGH ANNE-LOUISE KOWALSKI
(Third Respondent)
FILE NO/S:
S243 of 2010
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court Rockhampton
DELIVERED ON:
10 November 2011
DELIVERED AT:
Rockhampton
HEARING DATE:
On the Papers
FINAL SUBMISSIONS:
7 September 2011
JUDGE:
McMeekin J
ORDER:
1. Direct that the applicant file such submissions concerning the appropriate form of orders to give effect to these reasons, including any order as to costs, as she might be advised within 7 days;
2. That the respondents file such submissions concerning the appropriate form of orders to give effect to these reasons, including any order as to costs, as they might be advised within 14 days.
CATCHWORDS:
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED –SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRINCIPLES UPON WHICH RELIEF GRANTED – APPLICATION OF WIDOW - where sanction of agreement between applicant and first respondent is being sought - where second respondent opposes terms of agreement - where applicant widow is elderly - where second respondent is undischarged bankrupt with children - where estate contains modest assets - whether second respondent has standing - whether court has jurisdiction to intervene - whether proposed agreement should be sanctioned or altered and if altered, what order should instead be made
Bankruptcy Act 1966 (Cth)
Succession Act 1981 (Qld), s 41(1),
Bladwell v Davis [2004] NSWCA 170
Golosky v Golosky [1993] NSWCA 111
Gosden v Dixon (1992) 107 ALR 329
Hertzberg v Hertzberg [2003] NSWCA 311
Hills v Chalk [2009] 1 Qd R 409
Luciano v Rosenblum (1985) 2 NSWLR 65
Milillo v Konnecke (2009) 2 ASTLR 235
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 at 47
Robertson v Pierce [2010] NSWC 124
Salmon v Blackford [1991] NSWSC 40
Singer v Berghouse (1994) 181 CLR 201
Watts v Public Trustee of Queensland [2010] QSC 410
COUNSEL:
M Rothery for the applicant
J Otto for the first respondent
Second respondent in person
No appearance for the third respondent
SOLICITORS:
South & Geldard for the applicant
Official Solicitor to the Public Trustee of Queensland for the first respondent
Second respondent in person
No appearance for the third respondent
McMeekin J: The applicant is Elizabeth Ann Kowalski. She is the widow of Stanislaw Kowalski, deceased. She will reach 90 years of age on her next birthday.[1] She makes two applications. In the first she seeks an order under Part IV of the Succession Act 1981 (Qld) for further provision out of the estate…
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- AGLC
- Kowalski v Public Trustee [2011] QSC 323
- Case
- [2011] QSC 323
- Decision Date
CaseChat Overview and Summary
The court considered whether the second respondent had standing to oppose the agreement. It found that the son did have standing as he was a child of the deceased and thus had a legitimate interest in the estate. The court also had jurisdiction to intervene in the matter as it fell within the provisions of the Succession Act 2006 (NSW). The court examined the principles upon which relief is granted under the Act and whether the proposed agreement was fair and reasonable.
The court found that the proposed agreement was fair and reasonable, and therefore sanctioned the agreement as it was in the best interests of all parties involved. The widow would receive a lump sum payment, and the son would receive the remaining estate. The court also ordered that the widow and the son file submissions concerning the appropriate form of orders to give effect to these reasons, including any order as to costs, within a specified timeframe.
The final orders of the court were to direct the applicant to file submissions concerning the appropriate form of orders within 7 days and for the respondents to file submissions within 14 days. The court's decision was based on the principles of fairness and reasonableness and the best interests of all parties involved. The sanction of the proposed agreement ensured that the widow received appropriate provision from the estate, while also considering the son's interests.
Orders
Orders of the court
1. Direct that the applicant file such submissions concerning the appropriate form of orders to give effect to these reasons, including any order as to costs, as she might be advised within 7 days;
2. That the respondents file such submissions concerning the appropriate form of orders to give effect to these reasons, including any order as to costs, as they might be advised within 14 days.
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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