Laursen v Laursen - [2009] QSC 30

SUPREME COURT OF QUEENSLAND

CITATION:

Laursen & Ors v Laursen [2009] QSC 30

PARTIES:

TONNY RENE LAURSEN, BENNY KENT LAURSEN AND MORTEN LEIGH LAURSEN
(Applicants)
v
NERIDAN SHAYNE LAURSEN (as Executor of the will of Hans Jorgen Laursen Deceased)
(Respondent)

FILE NO/S:

509 of 2008

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

4 March, 2009

DELIVERED AT:

Cairns

HEARING DATE:

6 February 2009

JUDGE:

Jones J

ORDER:

1. The Originating Application be dismissed
2. The applicants pay the respondent’s costs of and incidental to the proceedings to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE- SUPREME COURT PROCEDURE – QUEENSLAND- PRACTICE UNDER RULES OF COURT – SUMMARY JUDGEMENT – ORIGINATING APPLICATION- whether capable of summary dismissal – Uniform Civil Procedure Rules 1999 R 658

SUCCESION – FAMILY PROVISION AND MAINTENANCE – principles upon which relief granted – application of children – adult sons – application bound to fail – dismissed summarily – Succession Act 1982 s 41(1)

Property Law Act 1974 s 35
Succession Act 1981 s 41(1)
Uniform Civil Procedure Rules R 658

Bladwell v Davis [2004] NSWCA 170
Higgins v Higgins [2005] 2 Qd R 502
Minter v Minter [2000] NSWSC 100
Re State Public Services Federation; ex parte Attorney-General (WA) (1993) 178 CLR 249
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191

COUNSEL:

Mr A S Mellick of Counsel for the respondent (applicant)
Mr M Jonsson of Counsel for the applicants

SOLICITORS:

McKay’s Lawyers for the respondent
Bolt Burchell Tranter Solicitors for the applicants

Before me is an application for judgment seeking to end in a summary way applications made by three children of Hans Jorgen Laursen deceased (“the applicants”) for further and better provision from this estate. This application is made by the deceased’s widow, who is the executrix and the sole beneficiary under his will. The application is made pursuant to R 658 of Uniform Civil Procedure Rules (“UCPR”) or alternatively, by invoking the inherent jurisdiction of the Court.

The testator died on 18 January 2008 after a long illness. His widow (hereinafter “the executrix”) was the sole beneficiary of his estate. She brings this application for judgment contending that the modest size of the estate, her age, and state of health, and the applicants’ capacity to provide for themselves should result in judgment be entered in her favour. The estate available to satisfy the applicants’ claims is so small that the estate could not stand this litigation. On her view, the available estate consists of:-

1,694 BHP shares - currently valued at $40,650.60

984 Insurance Australia shares – currently valued at $4,000.00

205 One Steel shares – currently valued at $1,353.00

Toyota Camry motor vehicle – currently valued at $10,000.00

$56,000.60[1]
[1]Affidavit Nerida Laursen filed 18 December 2008

Obviously, the value of shares fluctuates but those figures give sufficient guidance for present purposes. Other payments identified in the widow’s affidavit include her receipt of superannuation payments and proceeds of a joint bank account.

The…

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 Laursen v Laursen

Details

AGLC: Laursen v Laursen [2009] QSC 30
Case: [2009] QSC 30
Decision Date: 4 March 2009

CaseChat Overview and Summary

The matter before the court was an originating application brought by two sons, seeking relief under the Succession Act 1982 against their deceased father’s estate. The applicants sought to challenge the fairness of the father's will, arguing that it did not adequately provide for them. The respondent, the executor of the father's estate, applied for the application to be dismissed summarily under the Uniform Civil Procedure Rules 1999.

The court was required to determine whether the application was capable of summary dismissal, and if so, whether the applicants' claims were bound to fail. The legal issue centred around the interpretation and application of sections 41(1) of the Succession Act 1982, which governs the court's discretion in providing for the maintenance of family members, and Rule 658 of the Uniform Civil Procedure Rules 1999, which allows for the summary dismissal of proceedings.

In delivering judgment, the court found that the applicants' claims were bound to fail based on the evidence presented and the relevant statutory provisions. The applicants, who were adult sons, had not provided sufficient grounds to warrant a departure from the terms of the will. The court held that the principles guiding relief under the Succession Act did not support the applicants’ claims. Consequently, the court exercised its discretion under Rule 658 to dismiss the application summarily and ordered that the applicants pay the respondent's costs of the proceedings.

Orders

Orders of the court

1. The Originating Application be dismissed

2. The applicants pay the respondent’s costs of and incidental to the proceedings to be assessed on the standard basis.

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

Full text does not contain this section.

CITATION:	Laursen & Ors v Laursen [2009] QSC 30
PARTIES:	TONNY RENE LAURSEN, BENNY KENT LAURSEN AND MORTEN LEIGH LAURSEN (Applicants) v NERIDAN SHAYNE LAURSEN (as Executor of the will of Hans Jorgen Laursen Deceased) (Respondent)
FILE NO/S:	509 of 2008
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	4 March, 2009
DELIVERED AT:	Cairns
HEARING DATE:	6 February 2009
JUDGE:	Jones J
ORDER:	1. The Originating Application be dismissed 2. The applicants pay the respondent’s costs of and incidental to the proceedings to be assessed on the standard basis.
CATCHWORDS:	PROCEDURE- SUPREME COURT PROCEDURE – QUEENSLAND- PRACTICE UNDER RULES OF COURT – SUMMARY JUDGEMENT – ORIGINATING APPLICATION- whether capable of summary dismissal – Uniform Civil Procedure Rules 1999 R 658 SUCCESION – FAMILY PROVISION AND MAINTENANCE – principles upon which relief granted – application of children – adult sons – application bound to fail – dismissed summarily – Succession Act 1982 s 41(1) Property Law Act 1974 s 35 Succession Act 1981 s 41(1) Uniform Civil Procedure Rules R 658 Bladwell v Davis [2004] NSWCA 170 Higgins v Higgins [2005] 2 Qd R 502 Minter v Minter [2000] NSWSC 100 Re State Public Services Federation; ex parte Attorney-General (WA) (1993) 178 CLR 249 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191
COUNSEL:	Mr A S Mellick of Counsel for the respondent (applicant) Mr M Jonsson of Counsel for the applicants
SOLICITORS:	McKay’s Lawyers for the respondent Bolt Burchell Tranter Solicitors for the applicants