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McElligott v McElligott

McElligott v McElligott

Case [2014] QDC 178 28 August 2014

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DISTRICT COURT OF QUEENSLAND

CITATION:

McElligott v McElligott [2014] QDC 178

PARTIES:

LORAIN RONDA McELLIGOTT ON BEHALF OF TAKARLI JOY McELLIGOTT
A minor (15/05/2007)

LORAIN RONDA McELLIGOTT ON BEHALF OF TARSON JAMES McELLIGOTT

A minor (23/08/2010)

(respondent/applicant)

and

ADRIAN EDWIN McELLIGOT IN HIS CAPACITY AS THE EXECUTOR AND TRUSTEE OF THE WILL OF THE LATE JOYCE ALICE McELLIGOTT

(applicant/respondent)

FILE NO/S:

D52/14

PARTIES:

LORAIN RONDA McELLIGOTT ON BEHALF OF TAKARLI JOY McELLIGOTT
A minor (15/05/2007)

LORAIN RONDA McELLIGOTT ON BEHALF OF TARSON JAMES McELLIGOTT

A minor (23/08/2010)

(applicant/respondent)

and

ADRIAN EDWIN McELLIGOTT IN HIS CAPACITY AS THE EXECUTOR AND TRUSTEE OF THE WILL OF THE LATE JOYCE ALICE McELLIGOTT

(respondent/applicant)

FILE NO/S:

D70/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

28 August 2014

DELIVERED AT:

Maroochydore

HEARING DATE:

9 May 2014

JUDGE:

Long SC, DCJ

ORDER:

The application filed by the Executor in No. 52/14, on 5 May 2014, is allowed.1)

The originating application filed as No. 52/14, is dismissed.2)

The application filed by the Executor in No. 70/14, on 5 May 2014, is allowed.3)

The originating application, filed as No. 70/14, is dismissed.4)

5)   Lorain Ronda McElligott is to pay the costs of the Executor of both originating applications (No. 52/14 and No. 70/14), including the costs of the Executor’s application in each proceeding, as agreed or to be assessed on the standard basis.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – where the deceased was the children’s grandmother – where claim is brought personally by the mother of the children, on their behalf, without the appointment of a litigation guardian or legal representation
– where claimant is an undischarged bankrupt –where the Executor seeks summary dismissal of the application – whether the application is bound to fail – whether the children were dependants of the deceased

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – application that the Court appoint a litigation guardian for the maintenance application made under the Succession Act – where upfront indemnification of the litigation guardian is also sought – where claim is brought personally by the mother of the children, on their behalf – where claimant is an undischarged bankrupt - where the Public Trustee has considered but declined to act as litigation guardian – whether the Court has jurisdiction to make such an order

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – whether the Executor has demonstrated that it cannot be established that just and proper for an extension of time to be allowed under s 41(8) Succession Act 1971 – where significant costs have been incurred by the estate due to litigation and disputes

Administrative and Probate Act 1958 (Vic), Part IV
Bankruptcy Act 1966 (Cwth), s 60
District Court of Queensland Act 1967 (Qld), s 68(1)(b)(x), s 69
Succession Act 1981 (Qld), s 40, s 41, s 44
Testator’s Family Maintenance and Guardianship of Infants Act 1916, s 6(1)(d)
Uniform Civil Procedure Rules

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 McElligott v McElligott

Details

AGLC: McElligott v McElligott [2014] QDC 178
Case: [2014] QDC 178
Decision Date: 28 August 2014

CaseChat Overview and Summary

The court dealt with a dispute between the executor of the estate of a deceased woman, who was the grandmother of two children, and the children's mother, who brought the claim on behalf of her children. The children's mother, Lorain Ronda McElligott, who was also an undischarged bankrupt, sought family provision and maintenance under the Succession Act. The executor opposed the application, seeking its dismissal on the grounds that the children were not dependants of the deceased and that the application was bound to fail.

The legal issues before the court included whether the court had jurisdiction to appoint a litigation guardian for the children, whether the children were dependants of the deceased for the purposes of the Succession Act, and whether the Executor could successfully oppose the application on the grounds that it was bound to fail. Additionally, the court considered the mother's personal conduct of the case, without litigation guardian or legal representation, and the issue of extending time for making the application.

The court found that the application was brought in a manner that was not compliant with the requirements of the Succession Act. The children were not found to be dependants of the deceased. Furthermore, the court held that the application was not bound to fail, and therefore the Executor's application for summary dismissal was dismissed. The court also found that it did not have the jurisdiction to appoint a litigation guardian or require upfront indemnification. Finally, the court dismissed the Executor's application for an extension of time to respond to the originating application, finding that the significant costs incurred by the estate due to litigation and disputes did not establish that it was just and proper to allow the extension.

The court ordered that the application filed by the Executor in No. 52/14, on 5 May 2014, is allowed, and the originating application filed as No. 52/14, is dismissed. Similarly, the application filed by the Executor in No. 70/14, on 5 May 2014, is allowed, and the originating application, filed as No. 70/14, is dismissed. Lorain Ronda McElligott is to pay the costs of the Executor of both originating applications, including the costs of the Executor's application in each proceeding, as agreed or to be assessed on the standard basis.

Orders

Orders of the court

The application filed by the Executor in No. 52/14, on 5 May 2014, is allowed.1)

The originating application filed as No. 52/14, is dismissed.2)

The application filed by the Executor in No. 70/14, on 5 May 2014, is allowed.3)

The originating application, filed as No. 70/14, is dismissed.4)

5) Lorain Ronda McElligott is to pay the costs of the Executor of both originating applications (No. 52/14 and No. 70/14), including the costs of the Executor’s application in each proceeding, as agreed or 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.

Citations

AGLC Citation

McElligott v McElligott [2014] QDC 178

Most Recent Citation

Treadwell v Treadwell [2021] QDC 44

Cases citing this decision · 2 of 2 shown

Ucchino v Evans
[2024] QDC 181 Para 1

…Her Honour’s conclusion was adopted by Judge Long SC of this Court in McElligott v McElligott [2014] QDC 178 at [55], where his Honour said (footnotes in original):…
Treadwell v Treadwell
[2021] QDC 44 Para 6

…enlarges the class of potential claimants s. 41(1) permits. So much is consistent with the view expressed by Judge Long QC in McElligott v McElligott [2014] QDC 178 at [26] with whom I agree.…

View all 2 citing cases →

Cases cited in this decision · 31 of 31 shown

McElligott v Public Trustee of Queensland
[2013] QSC 314 Para 1

…is or similar issues. At the epicentre, is the decision in McElligott v Public Trustee Queensland & Ors[1] , wherein it was determined that: [1][2013] QSC 314 this decision was also the subject of an unsuccessful appeal by Ms McElligott, which was struck out on 24 March 2014, on the application of the Executor: s…
Simpson v Simpson
[2011] QSC 196

…R v Ross-Jones; Ex Parte Green (1984) 156 CLR 185 Sayer v Sayer [1999] NSWCA 390 Simpson v Simpson & Ors [2011] QSC 196 Singer v Berghouse (1994) 181 CLR 201 Summers v Garland [2006] QSC 85 Sylvester v Sylvester & Anor [2010] QSC 331 Tanner by his next friend Julie Lee White v Bresland [2005] WADC 18 Trim v Day…
The Trust Company Limited v Zdilar
[2011] QSC 5

…ext friend Julie Lee White v Bresland [2005] WADC 18 Trim v Day [2007] QDC 314 Trust Company Ltd v Zdilar [2011] QSC 5 Tsivinsky v Tsivinsky [1991] NSWCA 269 Underwood v Underwood [2009] QSC 107 Vigolo v Bostin (2005) 221 CLR 191 Williams v Aucutt [2000] 1 NSZLR 479 COUNSEL: S. Downes for the Executor Lorain Ro…
Curran v McGrath
[2010] QCA 308 Para 1

…the ability to arrange their affairs and utilise their resources on the basis that claims can no longer be made against [the estate]”.[39] [34][2010] QCA 308 [35]Ibid at [60] [36][2002] QSC 202 at [22] [37](1993) 9 WAR 364 and Re Salmon (deceased) [1981] CH 170 at 175 [38][2008] QCA 159 at [78] [39][2010] QCA 30…
Sylvester v Sylvester
[2010] QSC 331 Para 1

…ts of success, may be identified[12]. [12] Higgins v Higgins [2005] 2 Qd R 502, Laursen & Ors v Laursen [2009] QSC 30, Sylvester v Sylvester & Anor [2010] QSC 331 and Trim v Day [2007] QDC 314…
Atthow v McElhone
[2010] QSC 177 Para 1

…iring full and early disclosure of the circumstances in evidence relied upon. [69]Such an approach is consistent with that taken in Atthow v McElhone [2010] QSC 177 at [29] where and although there was reluctance to find a prima face case and the application for family provision was described as “practically hope…
Underwood v Underwood
[2009] QSC 107

…314 Trust Company Ltd v Zdilar [2011] QSC 5 Tsivinsky v Tsivinsky [1991] NSWCA 269 Underwood v Underwood [2009] QSC 107 Vigolo v Bostin (2005) 221 CLR 191 Williams v Aucutt [2000] 1 NSZLR 479 COUNSEL: S. Downes for the Executor Lorain Ronda McElligott appeared for the applicants in each originating application S…
Laursen v Laursen
[2009] QSC 30 Para 1

…a prima facie case or any reasonable prospects of success, may be identified[12]. [12] Higgins v Higgins [2005] 2 Qd R 502, Laursen & Ors v Laursen [2009] QSC 30, Sylvester v Sylvester & Anor [2010] QSC 331 and Trim v Day [2007] QDC 314…
Hills v Chalk
[2008] QCA 159 Para 1

…te]”.[39] [34][2010] QCA 308 [35]Ibid at [60] [36][2002] QSC 202 at [22] [37](1993) 9 WAR 364 and Re Salmon (deceased) [1981] CH 170 at 175 [38][2008] QCA 159 at [78] [39][2010] QCA 308 at [58] – [59]…
Trim v. Day
[2007] QDC 314 Para 1

…ed[12]. [12] Higgins v Higgins [2005] 2 Qd R 502, Laursen & Ors v Laursen [2009] QSC 30, Sylvester v Sylvester & Anor [2010] QSC 331 and Trim v Day [2007] QDC 314…
Summers v Garland
[2006] QSC 85 Para 1

…emonstrate that after referring to the following passage from Williams v Aucutt[72] : [70][2004] 2 Qd R 648 and as applied in Summers v Garland [2006] QSC 85 [71]See paragraph [24] [72][2000] 1 NSZLR 479, per Richardson P at [52]…
Sherborne Estate: Vanvalen v Neaves
[2005] NSWSC 593 Para 1

…dependent” in that legislation, suggests a meaning of “more than minimally” and perhaps “significantly”.[27] [26]See Re Sherborne Estate [2005] NSWSC 593 at [41], Griffiths v West , BC 9403357, Supreme Court of New South Wales , 26/10/94, Pearson v Jones [2000] NSWSC 799 and cf Sayer v Sayer [1999] NSWCA 390 and T…
Higgins v Higgins
[2005] QSC 110

…[64]See Sylvester v Sylvester & Anor [2010] QSC 331; Laursen & Ors v Laursen [2009] QSC 30; Higgins v Higgins & Anor [2005] QSC 110; Trim v Day [2007] QDC 314…
Vigolo v Bostin
[2005] HCA 11

…any Ltd v Zdilar [2011] QSC 5 Tsivinsky v Tsivinsky [1991] NSWCA 269 Underwood v Underwood [2009] QSC 107 Vigolo v Bostin (2005) 221 CLR 191 Williams v Aucutt [2000] 1 NSZLR 479 COUNSEL: S. Downes for the Executor Lorain Ronda McElligott appeared for the applicants in each originating application SOLICITORS: Koolik and A…
Tanner by his next friend JULIE Lee White v Bresland
[2005] WADC 18 Para 1

…v The Queen (1989) 168 CLR 1 at 16, cf: R v Ross-Jones; Ex Parte Green (1984) 156 CLR 185. [6] Tanner by his next friend Julie Lee White v Bresland [2005] WADC 18, MaxElio Naso by his next friend Sabatino Naso & Anor v Cottrell [2001] WADC 7 and Francesca Dimasi by her duly appointed administrator Dianne Elizabet…
Lohse v Lewis
[2004] QSC 36 Para 1

…e or support, requires something that may be described as being “in the main” or “as to the greater part”. [78](2005) 221 CLR 191 at [25] [79][2004] QSC 36 at [95]…
Francesca Dimasi by her duly appointed Administrator Dianne Elizabeth Summers v Walsh
[2003] WADC 230 Para 1

…next friend Sabatino Naso & Anor v Cottrell [2001] WADC 7 and Francesca Dimasi by her duly appointed administrator Dianne Elizabeth Summers v Walsh [2003] WADC 230…
MacEwan Shaw v Shaw
[2003] VSC 318

…CA 159 Laursen & Ors v Laursen [2009] QSC 30 Lohse v Lewis & Anor [2004] QSC 36 McEwan Shaw & Anor v Shaw [2003] VSC 318 MaxElio Naso by his next friend Sabatino Naso & Anor v Cottrell [2001] WADC 7 McElligott v Public Trustee Queensland & Ors [2013] QSC 314 McKenzie v Baddeley (1992) ACL Rep 395 NSW 3 Pearson v…
Bird v Bird
[2002] QSC 202 Para 1

…s and utilise their resources on the basis that claims can no longer be made against [the estate]”.[39] [34][2010] QCA 308 [35]Ibid at [60] [36][2002] QSC 202 at [22] [37](1993) 9 WAR 364 and Re Salmon (deceased) [1981] CH 170 at 175 [38][2008] QCA 159 at [78] [39][2010] QCA 308 at [58] – [59]…
Max Elio Naso by his next friend Sabatino Naso v Cottrell
[2001] WADC 7 Para 1

…6 CLR 185. [6] Tanner by his next friend Julie Lee White v Bresland [2005] WADC 18, MaxElio Naso by his next friend Sabatino Naso & Anor v Cottrell [2001] WADC 7 and Francesca Dimasi by her duly appointed administrator Dianne Elizabeth Summers v Walsh [2003] WADC 230…
Pearson v Jones
[2000] NSWSC 799 Para 1

…Re Sherborne Estate [2005] NSWSC 593 at [41], Griffiths v West , BC 9403357, Supreme Court of New South Wales , 26/10/94, Pearson v Jones [2000] NSWSC 799 and cf Sayer v Sayer [1999] NSWCA 390 and Tsivinsky v Tsivinsky [1991] NSWCA 269 [27] McKenzie v Baddeley (1992) ACL Rep 395 NSW 3…
Franklins Self Serve Pty Ltd v Wyber
[1999] NSWCA 390 Para 1

…t [41], Griffiths v West , BC 9403357, Supreme Court of New South Wales , 26/10/94, Pearson v Jones [2000] NSWSC 799 and cf Sayer v Sayer [1999] NSWCA 390 and Tsivinsky v Tsivinsky [1991] NSWCA 269 [27] McKenzie v Baddeley (1992) ACL Rep 395 NSW 3…
McKenzie v Baddeley
[1995] NSWCA 283 Para 1

…Wales , 26/10/94, Pearson v Jones [2000] NSWSC 799 and cf Sayer v Sayer [1999] NSWCA 390 and Tsivinsky v Tsivinsky [1991] NSWCA 269 [27] McKenzie v Baddeley (1992) ACL Rep 395 NSW 3…
Singer v Berghouse
[1994] HCA 40

…984) 156 CLR 185 Sayer v Sayer [1999] NSWCA 390 Simpson v Simpson & Ors [2011] QSC 196 Singer v Berghouse (1994) 181 CLR 201 Summers v Garland [2006] QSC 85 Sylvester v Sylvester & Anor [2010] QSC 331 Tanner by his next friend Julie Lee White v Bresland [2005] WADC 18 Trim v Day [2007] QDC 314 Trust Company Ltd v Zdi…
Secretary, Department of Social Security v Wetter
[1993] FCA 17

…y paraphrased by the words ‘in the main’ or ‘as to the greater part’: cf Department of Social Security v Wetter [1993] FCA 17; (1993) 40 FCR 22, 30. In determining whether the maintenance or support at the date of death is substantial, consistent with the approach in Re Cobb [1989] 1 Qd R 522 , the future arrang…
Secretary, Department of Social Security v Wetter, J
[1993] FCA 13

…y the words ‘in the main’ or ‘as to the greater part’: cf Department of Social Security v Wetter [1993] FCA 17; (1993) 40 FCR 22, 30. In determining whether the maintenance or support at the date of death is substantial, consistent with the approach in Re Cobb [1989] 1 Qd R 522 , the future arrangements that had be…
Tsivinsky v Tsivinsky
[1991] NSWCA 269 Para 1

…eme Court of New South Wales , 26/10/94, Pearson v Jones [2000] NSWSC 799 and cf Sayer v Sayer [1999] NSWCA 390 and Tsivinsky v Tsivinsky [1991] NSWCA 269 [27] McKenzie v Baddeley (1992) ACL Rep 395 NSW 3…
R v Ross-Jones; Ex parte Green
[1984] HCA 82 Para 1

…ise by necessary implication from the jurisdiction so expressed: see Grassby v The Queen (1989) 168 CLR 1 at 16, cf: R v Ross-Jones; Ex Parte Green (1984) 156 CLR 185. [6] Tanner by his next friend Julie Lee White v Bresland [2005] WADC 18, MaxElio Naso by his next friend Sabatino Naso & Anor v Cottrell [2001] WADC 7…
Dey v Victorian Railways Commissioners
[1949] HCA 1

…quoted statement of Barwick CJ in General Steel at 129 referring with approval to observations by Dixon J in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 continues to provide guidance as to the proper approach to an application to dismiss proceedings summarily. After extracting some exp…
Grassby v the Queen
[1989] HCA 45 Para 1

…provided by that statute, any such jurisdiction can only arise by necessary implication from the jurisdiction so expressed: see Grassby v The Queen (1989) 168 CLR 1 at 16, cf: R v Ross-Jones; Ex Parte Green (1984) 156 CLR 185. [6] Tanner by his next friend Julie Lee White v Bresland [2005] WADC 18, MaxElio Naso by…
Clayton v Aust
[1993] WASC 192 Para 1

…es on the basis that claims can no longer be made against [the estate]”.[39] [34][2010] QCA 308 [35]Ibid at [60] [36][2002] QSC 202 at [22] [37](1993) 9 WAR 364 and Re Salmon (deceased) [1981] CH 170 at 175 [38][2008] QCA 159 at [78] [39][2010] QCA 308 at [58] – [59]…

Legislation cited in this decision · 6

Bankruptcy Act 1966 (Cth)
60 2 mentions (from Para 1)
District Court of Queensland Act 1967 (Qld)
68(1)(b)(x) 2 mentions (from Para 1)
Guardianship of Infants Act 1916 (NSW)
6(1)(d) 2 mentions (from Para 1)
Succession Act 1981 (Qld)
40 2 mentions (from Para 1)
Trusts Act 1973 (Qld)
1 mention
Uniform Civil Procedure Rules 1999 (Qld)
1 mention

CITATION:	McElligott v McElligott [2014] QDC 178
PARTIES:	LORAIN RONDA McELLIGOTT ON BEHALF OF TAKARLI JOY McELLIGOTT A minor (15/05/2007) LORAIN RONDA McELLIGOTT ON BEHALF OF TARSON JAMES McELLIGOTT A minor (23/08/2010) (respondent/applicant) and ADRIAN EDWIN McELLIGOT IN HIS CAPACITY AS THE EXECUTOR AND TRUSTEE OF THE WILL OF THE LATE JOYCE ALICE McELLIGOTT (applicant/respondent)
FILE NO/S:	D52/14
PARTIES:	LORAIN RONDA McELLIGOTT ON BEHALF OF TAKARLI JOY McELLIGOTT A minor (15/05/2007) LORAIN RONDA McELLIGOTT ON BEHALF OF TARSON JAMES McELLIGOTT A minor (23/08/2010) (applicant/respondent) and ADRIAN EDWIN McELLIGOTT IN HIS CAPACITY AS THE EXECUTOR AND TRUSTEE OF THE WILL OF THE LATE JOYCE ALICE McELLIGOTT (respondent/applicant)
FILE NO/S:	D70/14
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	28 August 2014
DELIVERED AT:	Maroochydore
HEARING DATE:	9 May 2014
JUDGE:	Long SC, DCJ
ORDER:	The application filed by the Executor in No. 52/14, on 5 May 2014, is allowed.1) The originating application filed as No. 52/14, is dismissed.2) The application filed by the Executor in No. 70/14, on 5 May 2014, is allowed.3) The originating application, filed as No. 70/14, is dismissed.4) 5) Lorain Ronda McElligott is to pay the costs of the Executor of both originating applications (No. 52/14 and No. 70/14), including the costs of the Executor’s application in each proceeding, as agreed or to be assessed on the standard basis.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – where the deceased was the children’s grandmother – where claim is brought personally by the mother of the children, on their behalf, without the appointment of a litigation guardian or legal representation – where claimant is an undischarged bankrupt –where the Executor seeks summary dismissal of the application – whether the application is bound to fail – whether the children were dependants of the deceased SUCCESSION – FAMILY PROVISION AND MAINTENANCE – application that the Court appoint a litigation guardian for the maintenance application made under the Succession Act – where upfront indemnification of the litigation guardian is also sought – where claim is brought personally by the mother of the children, on their behalf – where claimant is an undischarged bankrupt - where the Public Trustee has considered but declined to act as litigation guardian – whether the Court has jurisdiction to make such an order SUCCESSION – FAMILY PROVISION AND MAINTENANCE – PRACTICE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – whether the Executor has demonstrated that it cannot be established that just and proper for an extension of time to be allowed under s 41(8) Succession Act 1971 – where significant costs have been incurred by the estate due to litigation and disputes Administrative and Probate Act 1958 (Vic), Part IV Bankruptcy Act 1966 (Cwth), s 60 District Court of Queensland Act 1967 (Qld), s 68(1)(b)(x), s 69 Succession Act 1981 (Qld), s 40, s 41, s 44 Testator’s Family Maintenance and Guardianship of Infants Act 1916, s 6(1)(d) Uniform Civil Procedure Rules