McFarlane v Myers
[2011] QSC 102
•6 May 2011
SUPREME COURT OF QUEENSLAND
CITATION:
McFarlane v Myers [2011] QSC 102
PARTIES:
GREGORY KEITH McFARLANE
(applicant)
v
MARION NELSON MYERS
(respondent)
FILE NO/S:
BS2265/08
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
6 May 2011
DELIVERED AT:
Supreme Court, Brisbane
HEARING DATE:
18 March 2011
JUDGE:
Dalton J
ORDER:
1. That the envelope containing the agreement reached at mediation be opened.
2. Applications of 13 March 2008, 11 May 2009, 5 November 2010 and 18 March 2011 dismissed.
CATCHWORDS:
Settlement reached at mediation bar to proceedings; Letters of administration not granted.
Succession Act 1981 (Qld) s 18
Supreme Court of Queensland Act 1991 (Qld) s 114COUNSEL:
Applicant in person
L Nevison for the respondentSOLICITORS:
Crilly Lawyers for the plaintiff
DALTON J: This matter began on 13 March 2008 when Mr McFarlane filed an originating application seeking letters of administration in relation to the estate of Maureen Ann Quinn. Before that application was heard, on 11 May 2009, another application was filed in this proceeding, again by Mr McFarlane, seeking two orders:
“1.That the Court dispense with the formal requirements of Section 10 of the Succession Act 1981 (Q) and declare that the informal document marked exhibit ‘A’ to the affidavit of the applicant sworn 10th March 2008 is a Will of the deceased, subject to any further requirements of the registrar.
2.That Letters of Administration with the informal document of the deceased Maureen Ann Quinn dated 6th May 2006 and marked exhibit ‘A’ to the affidavit of the applicant sworn 10th March 2008 be granted to the Applicant subject to any further requirements of the registrar.”
On 25 June 2010 Applegarth J ordered the parties to mediate. That mediation occurred and the mediator filed a certificate in the Court on 30 August 2010 certifying that the parties had resolved their dispute. The terms of the mediation agreement were placed in a sealed envelope, not to be opened without order. Perhaps that would have been the end of the matter, but the mediation agreement required the respondent to pay a sum of money to Mr McFarlane and the cheque was sent on 23 September 2010, under cover of a letter which could only be described as provocative. Amongst other things, the letter said that the respondent wished to be laid to rest in the plot where the deceased was buried. This inflamed Mr McFarlane because he has particular concerns about controlling the deceased’s gravesite, although, I glean from the material, he does not own it. He filed a further application in these proceedings on 5 November 2010. It sought:
“1. Clarifying orders re mediation breach;
2. Finishing orders”.
That application came on for hearing before the applications Judge on 18 February 2011. She made orders that Mr McFarlane’s application was to be adjourned and that he should, within 21 days, file and serve an amended application setting out with particularity the orders he sought, together with any material upon which he sought to rely. In purported compliance with that order Mr McFarlane wrote a letter to the respondent’s solicitors saying:
“I am asking the Court for –
1.Letters of Administration,
or, in lieu of such,
2.An order confirming law and right and authorities regarding Maureen’s gravesite,
3.That the Court direct/request investigation by the Public Trustee Qld of the distribution of Maureen’s entitlement in the Estate of her father, Frank Quinn.”
It is asserted by Mr McFarlane that he filed that letter. Not surprisingly the Registry do not seem to have accepted it as a document for filing. On the same day Mr McFarlane did file three affidavits, one of himself, one of his father and one of his son. That having been attended to, the matter was listed again in the applications jurisdiction so that the Court could consider making orders in terms of the letter from Mr McFarlane to the respondent’s solicitor dated 11 March 2011. Mr McFarlane relied upon his letter, the three new affidavits and an outline of submissions in support of his application.
Mr McFarlane renews his application for letters of administration. At present, as outlined above, there are two applications seeking letters of administration on the file. As none of the material relied upon by Mr McFarlane goes to support the application under s 18 of the Succession Act 1981 (Qld) to have an informal document declared a will, there is nothing read in support of the application filed 11 May 2009 and accordingly I dismiss it.
I deal with the originating application of 13 March 2008, as if it were an application for letters of administration on an intestacy. There are several formidable obstacles to the grant of administration to Mr McFarlane.
The first is that the parties have settled these proceedings. The respondent chiefly relied upon the agreement reached at mediation as a bar to the current application. I was invited by counsel for the respondent to read that agreement. Mr McFarlane did not oppose this and indeed his affidavit material was almost wholly concerned with what transpired at the mediation. I have therefore opened the sealed envelope and read the agreement reached at mediation. It settles all disputes between (inter alia) the applicant and the respondent arising out of, or in any way connected to, the deaths of the deceased and her father. It provides that the parties will discontinue all current court proceedings and that the agreement may be pleaded as a bar to any court proceedings commenced by the parties relating to the subject matter of the settlement. In particular, the parties agreed that they would not apply for administration of the deceased’s estate. Mr McFarlane received a sum of $37,500 pursuant to the settlement agreement and the right to erect a monument at the deceased’s grave.
Mr McFarlane and his father and son, in their affidavits, filed in support of this application, make allegations of conduct occurring at the mediation which are in the nature of misrepresentations which Mr McFarlane says induced him to sign the contract of settlement. Mr McFarlane does not move to set the contract of settlement aside. He approbates and reprobates with respect to it. He brings a further application for letters of administration when the settlement agreement prevents him doing that, yet he asserts, and asserted at the hearing of this matter, his continuing right to erect a monument at the deceased’s gravesite. At the hearing of the matter he told me that this would be attended to very shortly. He has not offered to give up his rights to erect this monument or refund the moneys he has received pursuant to the settlement agreement as the price for rescinding it. As to the alleged misrepresentations, he makes allegations both against the mediator and counsel acting for the respondent at the mediation. Neither were given notice of the application and they have not been heard. The settlement agreement remains in force. It is a bar to the current application and the application filed 5 November 2010.
Even disregarding the existence of the settlement agreement, there remains good reason not to grant letters of administration to Mr McFarlane. The deceased died in May 2006. Presumably Mr McFarlane applies for letters of administration on the basis that he was the deceased’s de facto husband at the time of death. He puts before me no material in support of that proposition, but does put before me a letter from the respondent’s solicitors to his own erstwhile solicitors dated 13 September 2006, which asserts a dispute as to whether or not he and the deceased were in a de facto relationship at the time of death. There is no material from which I could determine this asserted dispute and so, having regard to the onus of proof, the applicant must be regarded as having failed to prove this point.
There is no material before the Court as to whether or not there are any assets in the estate of the deceased. Again the only material before the Court touching on this point is contained in the letter of 13 September 2006. That letter asserts that the estate is insolvent, the applicant having withdrawn moneys from the deceased’s bank account after her death. The applicant asserts that the deceased was entitled to a half share of her father’s estate which she never received. There has been no attempt made to prove this properly. The circumstances of the deceased’s father’s death, his will, if any, and the assets and liabilities of that estate are not before the Court. Again, the applicant’s only material touching on this issue is the letter of 13 September 2006, which asserts that the only asset in the deceased’s father’s estate was a unit at Burleigh Heads, in poor condition, worth about $96,000. There is nothing more current than this. Thus the applicant’s material does not show that there are assets of the deceased which remain unadministered after her death so as to require someone to be appointed as administrator of the estate.
Mr McFarlane is very concerned that he have control over the gravesite of the deceased. It is my impression from his material and from his argument that he believes that if he is granted letters of administration he will have the control he seeks. That is a misapprehension. The deceased’s funeral has taken place. Mr McFarlane has been allowed to decorate the gravesite as he sees fit. That right was granted to him as part of the settlement at mediation and it is apparent from the letter of 23 September 2010 that the respondent acknowledges Mr McFarlane has that right. I take it from that letter that the deceased’s family own the gravesite. A grant of letters of administration will not give Mr McFarlane property rights over the gravesite, nor any further control over it than he currently has.
Mr McFarlane has struggled to put comprehensible material before the Court. Further, it seems to me that his judgment is clouded by emotion in matters concerning the deceased. For these reasons he seems to me to lack the necessary administrative skills and clarity of judgment which would be required of an administrator, so that, even if all the other matters were not against him, I would still not be persuaded to grant him letters of administration.
For all the above reasons, I dismiss the originating application filed on 13 March 2008 and so much of the application heard by me on 18 March 2011 (based on the letter set out at paragraph 3 of my judgment above) as seeks that Mr McFarlane be granted letters of administration.
The remainder of the application heard by me on 18 March 2011 should also be dismissed. The settlement agreement is by its terms clearly a bar to the second and third items of relief which Mr McFarlane itemises in the letter set out at paragraph 3 of my judgment. The second head of relief sought is, in any event, not readily comprehended in terms of any relief known to the law. As to the third head of relief sought, there is insufficient material before me to warrant any investigation by the Public Trustee into the distribution of the estate of the deceased’s father. In this regard, I note that some of Mr McFarlane’s material is inadmissible – see s 114 Supreme Court Act 1991 (Qld).
For completeness, I dismiss the application filed 5 November 2010. The relief sought in that application is not comprehensible – that was the reason for the order made by the applications Judge on 18 February 2011. I will hear the parties as to costs.
0
0
2