McGhee v Churven; Churven v McGhee - [2021] QSC 212

SUPREME COURT OF QUEENSLAND

CITATION:

McGhee v Churven; Churven v McGhee [2021] QSC 212

PARTIES:

PAMELA MARGARET MCGHEE (AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SYBIL MARGARET CHURVEN)

(applicant / respondent)

v
PHILIP STUART CHURVEN

(respondent / applicant)

FILE NO/S:

BS 1869/20; BS 6301/20

DIVISION:

Trial Division

PROCEEDING:

Civil trial

ORIGINATING COURT:

Supreme Court at Brisbane

REASONS:

24 August 2021

ORDER:

8 September 2021

DELIVERED AT:

Brisbane

PUBLISHED:

22 October 2021 – incorporating the reasons delivered on 24 August 2021 and the consent order made on 8 September 2021

HEARING DATES:

14 – 16 October 2020 and 29 October 2020; further written submissions dated 9 and 17 November 2020; 24 August 2021; submissions as to consent orders dated 7 September 2021

JUDGE:

Burns J

ORDER:

THE ORDER OF THE COURT, BY CONSENT, IS THAT:

1.     It is declared that the property situated at 11/108 Swann Road, Taringa, in the State of Queensland, being more particularly described as Lot 11 on Building Unit Plan 5977 (“the Unit”) has, at all material times, been held on trust by Sybil Margaret Churven (“the Deceased”) for Philip Stuart Churven.

2. Pursuant to s 114 of the Land Title Act 1994 (Qld), Philip Stuart Churven (in his personal capacity) be registered as proprietor of the Unit.

3.     The sum of $279,478.09, together with any accretions thereon, held by Robert Bax and Associates on account of a refund for an accommodation bond, be paid to Philip Stuart Churven.

4. Pursuant to s 6(1) of the Succession Act 1981 (Qld), the letters of administration of the estate of the Deceased with the Will dated 19 March 2008 given to Pamela Margaret McGhee is revoked.

5. Pursuant to s 6(3) of the Succession Act 1981 (Qld) and in the court’s inherent jurisdiction, letters of administration of the estate of the Deceased for the Will dated 19 March 2008 be granted to Philip Stuart Churven subject to the formal requirements of the Registrar.

6. The requirement to give notice under r 598 of the Uniform Civil Procedure Rules 1999 (Qld) is dispensed with.

7. Pursuant to s 6 of the Succession Act 1981 (Qld) and s 80 of the Trusts Act 1973 (Qld), all property of the Deceased vests in Philip Stuart Churven as administrator.

8.     The parties bear their own costs of the proceedings.

9.     Pamela Margaret McGhee shall not indemnify herself, or seek to indemnify herself, out of the Estate of the Deceased for any of her costs of the proceeding.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – JURISDICTION AND DISCRETION OF COURT – QUEENSLAND – where, on the death of the deceased in 2019, she was survived by a son and a daughter – where, under the terms of her last will, the deceased left her household contents and effects to her son and the balance of her estate to her daughter – where the daughter alleged that a residential unit purchased in 1992 and registered in the name of the deceased formed part…

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: [2021] QSC 212
Decision Date: 8 September 2021

CaseChat Overview and Summary

The parties involved in the case were Sybil Margaret Churven, who passed away in 2019, and her two children, Philip Stuart Churven and his sister. The dispute centred on the ownership of a residential unit that had been purchased in 1992 and registered in the name of the deceased. The daughter contended that the unit was part of the residuary estate, whereas the son argued that it was purchased and maintained by him for his mother, who held it on trust for him. The case was heard by the Queensland Supreme Court.

The legal issues that the court had to address included whether the residential unit was held by the deceased on trust for the son, and if it was, whether the unit formed part of the residuary estate of the deceased. Additionally, the court had to determine whether the copy of the Deed that was presented was a true copy of the original Deed or a forgery. The court also had to consider whether an express trust arose on execution of the Deed, and if so, whether the residential unit was held by the deceased pursuant to the terms of the express trust created by the Deed.

The court found that the copy Deed that was produced was a true copy of the original Deed, and that an express trust arose on execution of the Deed. The court held that the residential unit was held by the deceased on trust for the son, and that it did not form part of the residuary estate of the deceased. The court ordered that the property situated at 11/108 Swann Road, Taringa, be registered as the proprietor of the unit in the name of the son, and that the sum of $279,478.09, together with any accretions thereon, be paid to the son.

The court's decision was based on the evidence presented, including the testimony of the witnesses, and the court's interpretation of the law. The court found that the son had discharged the onus of proof and had established that the express trust was valid and enforceable. The court's decision was binding on the parties, and the son was entitled to the property and the sum of money awarded to him.

Orders

Orders of the court

THE ORDER OF THE COURT, BY CONSENT, IS THAT:

1. It is declared that the property situated at 11/108 Swann Road, Taringa, in the State of Queensland, being more particularly described as Lot 11 on Building Unit Plan 5977 (“the Unit”) has, at all material times, been held on trust by Sybil Margaret Churven (“the Deceased”) for Philip Stuart Churven.

2. Pursuant to s 114 of the Land Title Act 1994 (Qld), Philip Stuart Churven (in his personal capacity) be registered as proprietor of the Unit.

3. The sum of $279,478.09, together with any accretions thereon, held by Robert Bax and Associates on account of a refund for an accommodation bond, be paid to Philip Stuart Churven.

4. Pursuant to s 6(1) of the Succession Act 1981 (Qld), the

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:	McGhee v Churven; Churven v McGhee [2021] QSC 212
PARTIES:	PAMELA MARGARET MCGHEE (AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SYBIL MARGARET CHURVEN) (applicant / respondent) v PHILIP STUART CHURVEN (respondent / applicant)
FILE NO/S:	BS 1869/20; BS 6301/20
DIVISION:	Trial Division
PROCEEDING:	Civil trial
ORIGINATING COURT:	Supreme Court at Brisbane
REASONS:	24 August 2021
ORDER:	8 September 2021
DELIVERED AT:	Brisbane
PUBLISHED:	22 October 2021 – incorporating the reasons delivered on 24 August 2021 and the consent order made on 8 September 2021
HEARING DATES:	14 – 16 October 2020 and 29 October 2020; further written submissions dated 9 and 17 November 2020; 24 August 2021; submissions as to consent orders dated 7 September 2021
JUDGE:	Burns J
ORDER:	THE ORDER OF THE COURT, BY CONSENT, IS THAT: 1. It is declared that the property situated at 11/108 Swann Road, Taringa, in the State of Queensland, being more particularly described as Lot 11 on Building Unit Plan 5977 (“the Unit”) has, at all material times, been held on trust by Sybil Margaret Churven (“the Deceased”) for Philip Stuart Churven. *2. Pursuant to s 114 of the Land Title Act 1994* (Qld), Philip Stuart Churven (in his personal capacity) be registered as proprietor of the Unit. 3. The sum of $279,478.09, together with any accretions thereon, held by Robert Bax and Associates on account of a refund for an accommodation bond, be paid to Philip Stuart Churven. 4. Pursuant to s 6(1) of the Succession Act 1981 (Qld), the letters of administration of the estate of the Deceased with the Will dated 19 March 2008 given to Pamela Margaret McGhee is revoked.** 5. Pursuant to s 6(3) of the Succession Act 1981 (Qld) and in the court’s inherent jurisdiction, letters of administration of the estate of the Deceased for the Will dated 19 March 2008 be granted to Philip Stuart Churven subject to the formal requirements of the Registrar. *6. The requirement to give notice under r 598 of the Uniform Civil Procedure Rules 1999* (Qld) is dispensed with. 7. Pursuant to s 6 of the Succession Act 1981 (Qld) and s 80 of the Trusts Act 1973 (Qld), all property of the Deceased vests in Philip Stuart Churven as administrator. 8. The parties bear their own costs of the proceedings. 9. Pamela Margaret McGhee shall not indemnify herself, or seek to indemnify herself, out of the Estate of the Deceased for any of her costs of the proceeding.**
CATCHWORDS:	SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – JURISDICTION AND DISCRETION OF COURT – QUEENSLAND – where, on the death of the deceased in 2019, she was survived by a son and a daughter – where, under the terms of her last will, the deceased left her household contents and effects to her son and the balance of her estate to her daughter – where the daughter alleged that a residential unit purchased in 1992 and registered in the name of the deceased formed part…