Martin v Martin

[2004] QDC 84

DISTRICT COURT OF QUEENSLAND

CITATION:

Martin v Martin [2004] QDC 084

PARTIES:

DARREN CRAIG MARTIN (Applicant)

v.

JEFFERY MARK MARTIN (First Respondent)

And

WAYNE DAVID MARTIN, GAVIN BRUCE MARTIN, MICHELLE JOY MARTIN and TONY LYLE MARTIN AS BENEFICIARIES OF THE ESTATE OF MARGARET JOYCE MARTIN DECEASED

FILE NO/S:

D17/2004

DIVISION:

Civil

PROCEEDING:

Chamber Application

ORIGINATING COURT:

District Court Ipswich

DELIVERED ON:

27 April 2004

DELIVERED AT:

Ipswich

HEARING DATE:

5 April 2004

JUDGE:

Richards DCJ

ORDER:

Application dismissed

CATCHWORDS:

Will – construction

SOLICITORS:

Mr Ryan of Hooper and Hooper for the Applicant

First Respondent for himself

1. This is an application pursuant to the Trusts Act 1973 for a declaration that the property occupied by Jeffery Mark Martin and the subject of the will of Margaret Joyce Martin dated 27 October 1995 be sold in accordance with the terms of the will,  alternatively to remove Jeffery Mark Martin as co-trustee of the Estate of Margaret Joyce Martin Deceased, and to set aside the decision of Jeffery Mark Martin to remain on the estate.

1. The deceased, Margaret Joyce Martin, by her will dated 27 October 1995 left all her real property to the use of Darren Craig Martin and Jeffery Mark Martin upon the following trust to allow the two to reside in the residence at 55 Cochrane Street Gatton provided that they pay the rates and other outgoings associated with the upkeep of the property provided always that when they no longer wish to reside in the said residence the residence is to be sold and the proceeds divided  equally between the children Jeffery Mark Martin, Darren Craig Martin, Wayne David Martin, Gavin Bruce Martin, Michelle Joy Martin and Tony Lyle Martin to be divided between them in equal shares. 

1. On or about 16 April 1998 the applicant and first respondent were registered as proprietors of the said property’s personal representatives of the deceased after declaring to the Department of Natural Resources that they were entitled to be personal representatives of the deceased’s estate.

1. The applicant resided at the property until May 2002 during which time he says the property was maintained in a clean presentable state and rates and insurance were paid.

1. Since that time it is said that the first respondent has failed regularly to pay the rates by the due date.  At the time of making the application there was $1,735.48 outstanding in rates.  It is also said he has failed to maintain the property – there are damaged gates underneath the house which have not been repaired, failed to replace the front stairs and failed to insure the property.  Apparently he has told the applicant that he will not do anything to fix the house and will not pay the rates.  It goes without saying that if the house is not maintained it will lose its value and all the beneficiaries will suffer. 

1. The first respondent represented himself at the hearing of this matter and produced receipts to prove that he has paid the rates and he informed the court that he had arranged to have repairs done to the house.  A number of photographs were tendered at the hearing which indicate that the house is in some state of disrepair and the interior of the house is quite untidy.  The first respondent assures the court that he intends to pay the rates and would have paid the insurance but it had already been paid by his brother. He says that he will effect the repairs to the house. 

1. The question in this application really turns on the interpretation of the will, and the meaning of the clause:

“… my residence at 55 Cochrane Street Gatton to allow my sons Jeffery Mark Martin and Darren Craig Martin to reside therein provided that they pay the rates and other outgoings associated with the upkeep of the said property provided always and I hereby declare that when my said sons no longer wish to reside in my said residence I hereby declare that my residence is to be sold and the proceeds divided equally between my children.”

1. It was submitted on behalf of the applicant that this means that when one son moves out the property should be sold.  However, in my view, it is clear from the wording of the will that that is not the intention and if that were the intention it would have been clearly stated. If it was intended that the property be sold upon one of the executors vacating the property the clause would have read instead “when either of my said sons no longer wish to reside in the residence”.  It seems to me that it was the clear intention of the deceased that the property continue to be available to either or both of the sons until both of them moved out or there was a continuing failure to pay the rates and other outgoings associated with the upkeep of the said property.

1. One must be very careful in cases like this not to form judgments based on whether the house is tidy or not.  An untidy house will not necessarily decrease the value of the property.  It is clear from the photographs that there are some items that need to be repaired or replaced such as the stove, the toilet, the stumps for the tank and perhaps some of the stairs need either replacing or repainting.  Other than photographs, I was not given any detailed information as to the physical state of the house.  It is difficult to tell from photographs exactly what needs to be done.  The first respondent has indicated that he intends to repair all parts of the property that need repair. 

1. In my view the proper construction of the will would not allow the property to be sold in accordance with the terms of the will until both brothers have vacated the property.  The rates and other outgoings have now been paid and were not in significant arrears it seems from the material tendered before me.  The terms of the will requires that the property be maintained and therefore repair work needs to be done on a regular basis.  If the repair work is not done then the first respondent is at risk of the property being put into the hands of a trustee such as the applicant.  However, at this stage the application is premature. 

ORDER.

The application is dismissed.  The applicant’s costs of and incidental to the application be taxed on a standard basis and paid out of the estate of Margaret Joyce Martin (Deceased).  Either party is at liberty to apply on four days notice.