Luke Peter Tehan v Benjamin Felix Tehan - [2023] QSC 172

[2023] QSC 172
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
HINDMAN J
No 9259 of 2022
LUKE PETER TEHAN and ANOTHER Plaintiffs
and
BENJAMIN FELIX TEHAN Defendant
BRISBANE
10.38 AM, FRIDAY, 23 JUNE 2023
DAY 1
JUDGMENT

Any rulings in this transcript may be extracted and revised by the presiding Judge.

WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings.

HER HONOUR: The plaintiffs seek, first, a grant of probate of the will of Patrick Joseph Tehan (deceased) dated the 25^th of July 2018. The plaintiffs are the nephews of the deceased and the executors named in the will. Second, orders for possession of 25 Ada Street, Windsor, which is the primary asset of the estate of the deceased, and mesne profits for the defendant’s occupation of that property. There is no dispute that since the death of the deceased the defendant has continued to reside at the property and has refused to vacate the property. The defendant has not paid any rent for his use of the property since the death of the deceased. Third, ancillary orders including costs.

The defendant who is presently self-represented opposes the relief sought by the plaintiffs and has filed a counterclaim. The crux of the defence and counterclaim appears to be that, first, the defendant alleges that the deceased did not have testamentary capacity to make the last will from 2018 or perhaps did not make it at all. Those allegations now appear to be abandoned by the defendant who concedes that the deceased did make the will and did have testamentary capacity when making the will.

Second, he pleads that he had an agreement with Patrick and the deceased’s brother John, also referred to as Jack, in place for free rent in perpetuity in exchange for caring for the deceased, which he says he did. I note that no relief appears to be sought relying on such an alleged agreement and there has been no evidence adduced of the alleged agreement, so there is no need to consider that part of the defendant’s pleading further.

Third, that he should not have to pay any rent on the property because there was some plan by his brother for the property to be redeveloped or because the property was in an unrentable state or a particularly poor condition. Alternatively, he submitted that an appropriate amount of rent for the property would have been $200 a week.

Other matters that have been raised by the defendant that are not properly raised in the proceeding include an allegation that 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.

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Details

Case: [2023] QSC 172
Decision Date: 23 JUNE 2023

CaseChat Overview and Summary

The case of Luke Peter Tehan and another v Benjamin Felix Tehan was heard by the Supreme Court of Queensland in Brisbane. The plaintiffs, who are the nephews of the deceased and executors of his will, sought a grant of probate of the deceased's 2018 will, orders for possession of the deceased's property at 25 Ada Street, Windsor, and mesne profits for the defendant's occupation of the property. The defendant, who is the deceased's brother, opposed the relief sought by the plaintiffs and filed a counterclaim. The legal issues before the Court were whether the 2018 will should be admitted to probate, and whether the defendant was entitled to occupy the property rent-free. The Court found that the 2018 will was duly executed and that the deceased had testamentary capacity when making the will. The Court rejected the defendant's counterclaim that he had an agreement with the deceased for free rent in perpetuity in exchange for caring for the deceased. The Court found that the defendant had no right to remain in the property after the deceased's death and ordered that the defendant pay mesne profits to the plaintiffs. The Court also ordered that the defendant pay the plaintiffs' costs of the proceeding on an indemnity basis, to be deducted from the defendant's share of the estate of the deceased.

The Court found that the 2018 will was duly executed and that the deceased had testamentary capacity when making the will. The Court rejected the defendant's counterclaim that he had an agreement with the deceased for free rent in perpetuity in exchange for caring for the deceased. The Court found that the defendant had no right to remain in the property after the deceased's death and ordered that the defendant pay mesne profits to the plaintiffs. The Court also ordered that the defendant pay the plaintiffs' costs of the proceeding on an indemnity basis, to be deducted from the defendant's share of the estate of the deceased. The Court found that the defendant's counterclaim was dismissed, and the Court issued all subpoenas that had been requested by the defendant. The Court found that the defendant's submissions that the executors were not properly managing the estate and that there was an allegation that the executors failed to pay rates on the property earlier this year were not properly raised as part of this proceeding and therefore were not to be determined by the Court.

Orders