McElligott v McElligott - [2014] QCA 54

SUPREME COURT OF QUEENSLAND

CITATION:

McElligott v McElligott & Ors [2014] QCA 54

PARTIES:

ADRIAN EDWIN McELLIGOTT as executor of the estate of JOYCE ALICE McELLIGOTT
(applicant)
v
LORAIN RONDA McELLIGOTT
(first respondent)
TAKARLI JOY McELLIGOTT & TARSON JAMES McELLIGOTT by their Litigation Guardian THE PUBLIC TRUSTEE OF QUEENSLAND
(second respondent)
CHERYL ALICE McELLIGOTT
(third respondent)
OFFICIAL TRUSTEE IN BANKRUPTCY FOR THE BANKRUPT ESTATE OF LORAIN RONDA McELLIGOTT
(fourth respondent)
SHERLENE SANDRA TURNER
(fifth respondent)
GLORIA JANELL ROBERTS
(sixth respondent)

FILE NOS:

Appeal No 169 of 2014
SC No 6651 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

24 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 March 2014

JUDGES:

Holmes JA

ORDERS:

1.    The notice of appeal is struck out.

2.    The fourth respondent is to have his costs out of the estate of the late Joyce Alice McElligott, on the indemnity basis.

3.    The applicant and second respondent are to have their costs paid by the first respondent, Lorain McElligott.

4.    Lorain McElligott is to pay the costs of the estate so far as they are incurred in relation to the order regarding the fourth respondent.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the appellant, a bankrupt, sought to appeal a decision of a trial division judge regarding declarations as to the interests of two of her children under a will and the vesting of her share of the residuary estate in the Official Trustee in Bankruptcy – where the Public Trustee was litigation guardian for the children – where the property of a bankrupt, including a chose in action, vests in the Official Trustee – where the appellant was not a party to the proceedings and has no interest arising from the will – where the appeal was improperly instituted – whether the notice of appeal should be struck out

COUNSEL:

S F Downes for the applicant
The first respondent appeared on her own behalf
R T Whiteford for the second respondent
S G Muller (sol) for the fourth respondent
No appearance for the third, fifth and sixth respondents

SOLICITORS:

Koolik & Associates for the applicant
The first respondent appeared on her own behalf
The Official Solicitor to the Public Trustee for the second respondent
Rodgers Barnes & Green for the fourth respondent
No appearance for the third, fifth and sixth respondents

HOLMES JA: The first respondent to this appeal, Adrian McElligott, executor of the estate of the late Joyce McElligott, has applied for the striking out of the notice of appeal filed by the first respondent to the application, Lorain McElligott. Ms McElligott has sought to appeal a decision of a trial division judge, by which he made declarations as to the interests of two of her children under the will of Joyce McElligott and the vesting of Ms McElligott’s share of the residuary estate in…

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: [2014] QCA 54
Decision Date: 24 March 2014

CaseChat Overview and Summary

In the case of McElligott v McElligott, the appellant, a bankrupt, sought to appeal a decision of a trial division judge regarding declarations as to the interests of two of her children under a will and the vesting of her share of the residuary estate in the Official Trustee in Bankruptcy. The Public Trustee served as litigation guardian for the children involved. The appeal was brought despite the appellant not being a party to the proceedings and having no interest arising from the will. The court was required to determine whether the notice of appeal should be struck out as it was improperly instituted.

The court considered the powers of the court to strike out notices of appeal that were improperly instituted. It was noted that the property of a bankrupt, including a chose in action, vests in the Official Trustee, and the appellant was not a party to the proceedings and had no interest arising from the will. The court found that the notice of appeal was improperly instituted, and therefore, it should be struck out.

The court struck out the notice of appeal and ordered that the fourth respondent would have his costs on the indemnity basis, out of the estate of the late Joyce Alice McElligott. Additionally, the applicant and second respondent were to have their costs paid by the first respondent, Lorain McElligott, and Lorain McElligott was to pay the costs of the estate so far as they are incurred in relation to the order regarding the fourth respondent.

Orders

Orders of the court

1. The notice of appeal is struck out.

2. The fourth respondent is to have his costs out of the estate of the late Joyce Alice McElligott, on the indemnity basis.

3. The applicant and second respondent are to have their costs paid by the first respondent, Lorain McElligott.

4. Lorain McElligott is to pay the costs of the estate so far as they are incurred in relation to the order regarding the fourth respondent.

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.

CITATION:	McElligott v McElligott & Ors [2014] QCA 54
PARTIES:	ADRIAN EDWIN McELLIGOTT as executor of the estate of JOYCE ALICE McELLIGOTT (applicant) v LORAIN RONDA McELLIGOTT (first respondent) TAKARLI JOY McELLIGOTT & TARSON JAMES McELLIGOTT by their Litigation Guardian THE PUBLIC TRUSTEE OF QUEENSLAND (second respondent) CHERYL ALICE McELLIGOTT (third respondent) OFFICIAL TRUSTEE IN BANKRUPTCY FOR THE BANKRUPT ESTATE OF LORAIN RONDA McELLIGOTT (fourth respondent) SHERLENE SANDRA TURNER (fifth respondent) GLORIA JANELL ROBERTS (sixth respondent)
FILE NOS:	Appeal No 169 of 2014 SC No 6651 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	24 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	24 March 2014
JUDGES:	Holmes JA
ORDERS:	1. The notice of appeal is struck out. 2. The fourth respondent is to have his costs out of the estate of the late Joyce Alice McElligott, on the indemnity basis. 3. The applicant and second respondent are to have their costs paid by the first respondent, Lorain McElligott. 4. Lorain McElligott is to pay the costs of the estate so far as they are incurred in relation to the order regarding the fourth respondent.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the appellant, a bankrupt, sought to appeal a decision of a trial division judge regarding declarations as to the interests of two of her children under a will and the vesting of her share of the residuary estate in the Official Trustee in Bankruptcy – where the Public Trustee was litigation guardian for the children – where the property of a bankrupt, including a chose in action, vests in the Official Trustee – where the appellant was not a party to the proceedings and has no interest arising from the will – where the appeal was improperly instituted – whether the notice of appeal should be struck out
COUNSEL:	S F Downes for the applicant The first respondent appeared on her own behalf R T Whiteford for the second respondent S G Muller (sol) for the fourth respondent No appearance for the third, fifth and sixth respondents
SOLICITORS:	Koolik & Associates for the applicant The first respondent appeared on her own behalf The Official Solicitor to the Public Trustee for the second respondent Rodgers Barnes & Green for the fourth respondent No appearance for the third, fifth and sixth respondents