MacGowan v Klatt - [2019] QSC 222

SUPREME COURT OF QUEENSLAND

CITATION:

MacGowan v Klatt [2019] QSC 222

PARTIES:

SHERALEE LYN SEULE MACGOWAN
(applicant)
v
MICHAEL KARL KLATT as administrator of the estate of KENNETH HAMISH MACGOWAN (deceased)
(respondent)

FILE NO/S:

SC No 8674 of 2016

DIVISION:

Trial Division

PROCEEDINGS:

Originating Application for an extension of time within which to commence an application for family provision

DELIVERED ON:

11 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11 – 13 March 2019

JUDGE:

Holmes CJ

ORDERS:

1.   The originating application for an extension of time is refused.

2.   The respondent’s application to strike out the originating application is dismissed.

3.   The respondent’s costs of the proceeding, including the strike-out application, are to be paid on the indemnity basis from the estate of the late Kenneth Hamish MacGowan.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – PROCEDURE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – ELIGIBLE APPLICANTS – CHILD – where the applicant seeks an extension of time, pursuant to s 41(8) of the Succession Act 1981 (Qld), in which to claim family provision – where the applicant’s claim is made on the basis that she is the adopted child of the deceased testator as the result of a customary adoption in Vanuatu – whether a ceremony in which the testator took part with the applicant’s mother and her extended family amounted to a customary adoption in accordance with the customary law of Tongoa Island and recognised by Vanuatu law – whether the testator as a foreign national could adopt an indigenous child in custom – whether any adoption was effective under Vanuatu law and capable of being recognised under s 293 of the Adoption Act2009 (Qld)

SUCCESSION – FAMILY PROVISION – PROCEDURE – ORDERS AND OTHER PROCEDURAL MATTERS – COSTS – GENERALLY – where the applicant was unsuccessful in her application for an extension of time in which to make a claim for family provision – where the applicant was not eligible to make the claim – where the estate’s worth is in excess of $5,000,000 – where the applicant had a moral claim arising out of her relationship with the testator, although not a legal one – where the applicant has three young children, limited ability to earn income, and lives in poverty – where an adverse costs order is likely to mean the loss of the modest property devised to her – where the testator in his will had asked that his executors consider the applicant’s well-being – whether costs should follow the event or another order should be made

Adoption Act 2009 (Qld), s 293, s 322
Adoption Act 1958 (UK), s 2(3)
Civil Code of the French Republic, arts 343-372
Constitution of the Republic of Vanuatu, art 30, art 47, art 51, art 73, art 74, art 95
Evidence Act 1977 (Qld), s 92(1)(a), s 92(1)(b)
Succession Act 1981 (Qld), s 5, s 40, s 41(8)
Uniform Civil Procedure Rules 1999, r 681, r 700A(2)

Alanson v Malingmen & Ors [2004]…

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 MacGowan v Klatt

Details

AGLC: MacGowan v Klatt [2019] QSC 222
Case: [2019] QSC 222
Decision Date: 11 September 2019

CaseChat Overview and Summary

The matter before the court involved an application by MacGowan to extend the time in which to claim family provision under the Succession Act 1981 (Qld). MacGowan sought the extension on the basis that she was the adopted child of the deceased, Kenneth Hamish MacGowan, pursuant to a customary adoption in Vanuatu. The court was tasked with determining whether the ceremony in which the deceased participated with MacGowan's mother and her extended family constituted a customary adoption in accordance with the customary law of Tongoa Island and whether such an adoption was recognised by Vanuatu law. Additionally, the court had to consider whether the deceased, as a foreign national, could adopt an indigenous child under Vanuatu custom and whether the adoption could be recognised under the Adoption Act 2009 (Qld).

The court found that the ceremony did not amount to a customary adoption under the customary law of Tongoa Island. The court held that the deceased did not have the standing to adopt MacGowan's mother's child, and therefore, the adoption was not valid under Vanuatu law. Consequently, MacGowan was not eligible to make a claim for family provision under the Succession Act. The court dismissed MacGowan's application for an extension of time and denied the respondent's application to strike out the originating application. The court also ruled that the respondent's costs of the proceeding, including the strike-out application, were to be paid on the indemnity basis from the estate of the deceased.

In light of the decision, the court refused MacGowan's application for an extension of time to make a claim for family provision and dismissed the respondent's application to strike out the originating application. The court ordered that the respondent's costs of the proceeding, including the strike-out application, were to be paid on the indemnity basis from the estate of the deceased. The court's decision effectively barred MacGowan from making a claim for family provision under the Succession Act, despite her relationship with the deceased and her personal circumstances.

Orders

Orders of the court

1. The originating application for an extension of time is refused.

2. The respondent’s application to strike out the originating application is dismissed.

3. The respondent’s costs of the proceeding, including the strike-out application, are to be paid on the indemnity basis from the estate of the late Kenneth Hamish MacGowan.

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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CITATION:	MacGowan v Klatt [2019] QSC 222
PARTIES:	SHERALEE LYN SEULE MACGOWAN (applicant) v MICHAEL KARL KLATT as administrator of the estate of KENNETH HAMISH MACGOWAN (deceased) (respondent)
FILE NO/S:	SC No 8674 of 2016
DIVISION:	Trial Division
PROCEEDINGS:	Originating Application for an extension of time within which to commence an application for family provision
DELIVERED ON:	11 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	11 – 13 March 2019
JUDGE:	Holmes CJ
ORDERS:	1. The originating application for an extension of time is refused. 2. The respondent’s application to strike out the originating application is dismissed. 3. The respondent’s costs of the proceeding, including the strike-out application, are to be paid on the indemnity basis from the estate of the late Kenneth Hamish MacGowan.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – PROCEDURE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – ELIGIBLE APPLICANTS – CHILD – where the applicant seeks an extension of time, pursuant to s 41(8) of the Succession Act 1981 (Qld), in which to claim family provision – where the applicant’s claim is made on the basis that she is the adopted child of the deceased testator as the result of a customary adoption in Vanuatu – whether a ceremony in which the testator took part with the applicant’s mother and her extended family amounted to a customary adoption in accordance with the customary law of Tongoa Island and recognised by Vanuatu law – whether the testator as a foreign national could adopt an indigenous child in custom – whether any adoption was effective under Vanuatu law and capable of being recognised under s 293 of the Adoption Act2009 (Qld) SUCCESSION – FAMILY PROVISION – PROCEDURE – ORDERS AND OTHER PROCEDURAL MATTERS – COSTS – GENERALLY – where the applicant was unsuccessful in her application for an extension of time in which to make a claim for family provision – where the applicant was not eligible to make the claim – where the estate’s worth is in excess of $5,000,000 – where the applicant had a moral claim arising out of her relationship with the testator, although not a legal one – where the applicant has three young children, limited ability to earn income, and lives in poverty – where an adverse costs order is likely to mean the loss of the modest property devised to her – where the testator in his will had asked that his executors consider the applicant’s well-being – whether costs should follow the event or another order should be made Adoption Act 2009 (Qld), s 293, s 322 Adoption Act 1958 (UK), s 2(3) Civil Code of the French Republic, arts 343-372 Constitution of the Republic of Vanuatu, art 30, art 47, art 51, art 73, art 74, art 95 Evidence Act 1977 (Qld), s 92(1)(a), s 92(1)(b) Succession Act 1981 (Qld), s 5, s 40, s 41(8) Uniform Civil Procedure Rules 1999, r 681, r 700A(2) Alanson v Malingmen & Ors [2004]…