Lees v Tighe - [2011] QDC 27

[2011] QDC 27

DISTRICT COURT

CIVIL JURISDICTION

JUDGE JONES

No 499 of 2011

BERIC LEES	Applicant
and
WENDY NITA TIGHE AND ANOTHER	Respondents

BRISBANE

..DATE 10/03/2011

ORDER

HIS HONOUR: Well, I will give my reasons ex tempore. I think,

in these sorts of matters it is preferable to deal with them

as quickly as is practicable, but I reserve the right to tidy

them up in due course before they make their way on to the

Court's website.

This is an application seeking the following

relief; that time be extended under the Succession Act 1988 to

17 February 2011, and that adequate provision be made for the

proper maintenance and support of the applicant pursuant to

section 40 and 41 of that Act.

The factual background to the application, which I do not

intend to go into in great detail, is relevantly that

the deceased died on 5 May 2010. She was survived by her son,

Beric Lees, who is the applicant in these proceedings, and by

her daughter, Wendy Tighe, who is the respondent.

The deceased made her will on 20 February 2004 in which she,

among other things, appointed the respondent as the sole

executrix and trustee and gave her the estate upon trust to,

among other things, pay debts, funeral and testamentary

expenses, distribute gifts as specified under the will and to

otherwise distribute the property in accordance with the will.

It is not doubted that the most significant asset of the

estate was a unit at Caloundra said to be worth in the order

of $1 million. Other assets included personal items and

furniture. The personal items included a number of items of

jewellery.

Leaving aside specific gifts to the grandchildren of the

deceased, the respondent received the bulk of the estate. By

referring to the breakup as described in Mr Clutterbuck's

outline of submissions, Mr Clutterbuck appearing for the

applicant, the respondent received a number of items of

jewellery and some furniture, but significantly the interest

that the deceased held in the unit at Caloundra.

The applicant received specific requests in respect of a China

cabinet, together with its contents and some framed

photographs.

On 8 February 2011, the respondent finalised the

administration of the estate and took steps to distribute the

various gifts, including gifts to the grandchildren of the

deceased.

There are some aspects of the estate yet to be finalised, and

I will come back to those in a moment. Relevantly, a

transmission application to have the Caloundra unit registered

in the name of the respondent was lodged in the office of the

Registrar of Titles on 10 February 2011. A confirmation

statement from the Registrar of Titles confirmed that from 14

February 2011 the respondent became the registered proprietor

or the registered owner of that unit.

The application brought is out of time, by my calculations, in

the order of 10 to 12 days. It was recognised by both counsel

that the time limit prescribed under section 41(8) of the

Succession…

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 Lees v Tighe

Details

AGLC: Lees v Tighe [2011] QDC 27
Case: [2011] QDC 27
Decision Date: 10 March 2011

CaseChat Overview and Summary

In the case of Lees v Tighe, the applicant, Beric Lees, sought an extension of time under the Succession Act 1988 to make a family provision application and for adequate provision to be made for his maintenance and support. The deceased, who died on 5 May 2010, was survived by her son, Beric Lees, and her daughter, Wendy Tighe, who was appointed as the sole executrix and trustee of the estate under the deceased's will. The estate's most significant asset was a unit at Caloundra, with an estimated value of $1 million. The application was filed out of time, approximately 10 to 12 days past the prescribed nine-month deadline.

The legal issues in this case revolved around whether the court should exercise its discretion to extend the time limit for the applicant to make his family provision application and whether there was any unconscionable or otherwise inappropriate conduct by the respondent in distributing the estate.

The court found that while the delay in filing the application was minimal, the time limit under the Succession Act was a substantive provision, not merely a procedural matter. The court considered several factors in deciding whether to exercise its discretion, including the extent of the delay, any explanation for the delay, and the prejudice to the beneficiaries. The court also took into account whether there was any unconscionable conduct by the respondent concerning the distribution of the estate and the likely prospects of the applicant being successful if the proceedings were allowed to continue.

The court concluded that the respondent's behaviour did not justify the extension sought, as she had acted having regard to the notice of the potential claim. The court found that the distribution of the property, including the unit at Caloundra, had been lawfully finalised. Therefore, the application was dismissed, and costs were ordered on a standard basis.

Orders