Legal Research
Cases
McIntosh v McIntosh

McIntosh v McIntosh

Case [2014] QSC 99 16 May 2014

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

McIntosh v McIntosh [2014] QSC 99

PARTIES:

ELIZABETH JOY McINTOSH

(applicant)

v

JOHN McINTOSH

(respondent)

FILE NO/S:

SC 8510/13

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

16 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2014

JUDGE:

Atkinson J

ORDER:

The applicant is required to account to the estate of James Joseph McIntosh deceased for the superannuation benefits referred to in paragraph 40 of the affidavit of Elizabeth Joy McIntosh filed on 26 March 2014.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – GETTING IN AND REALISING THE ESTATE – where the son of the applicant and respondent died intestate – where the applicant was appointed as administrator of the estate – where the applicant sought the payment of superannuation death benefits to herself personally – whether the applicant was in breach of her duty under s 52 of the Succession Act 1981 (Qld) to get in the assets of the estate

EQUITY – GENERAL PRINCIPLES – FIDUCIARY OBLIGATIONS – FIDUCIARY DUTY – ACCOUNT FOR BENEFITS GAINED – where the applicant administrator sought the payment of superannuation death benefits to herself personally – whether the applicant breached her fiduciary duty not to allow a conflict of personal interest and duty to occur – whether the applicant should be brought to account for the superannuation benefits

Succession Act 1981 (Qld), s 6, s 31, s 50, s 52, s 55A
Superannuation Industry (Supervision) Act 1993 (Cth), s 10, s 10A
Superannuation Industry (Supervision) Regulations 1994 (Cth), reg 6.22
Trusts Act 1973 (Qld), s 96
Uniform Civil Procedure Rules 1999 (Qld), r 610

Armitage v Nurse [1998] Ch 241, cited
Bath v British & Malayan Trustees Ltd [1969] 2 NSWR 114, cited
Breen v Williams (1996) 186 CLR 71, cited
Bristol and West Building Society v Mothew [1998] Ch 1, cited
Butler v Meriga [1904] St R Qd 248, cited
Calvo v Sweeney [2009] NSWSC 719, cited
Guazzini v Pateson (1918) 18 SR (NSW) 275, cited
In re Danish Bacon Co [1971] 1 WLR 248, cited
In the Goods of Loveday [1900] P 154, cited
Mordecai v Mordecai (1988) 12 NSWLR 58, cited
Rankine v Rankine [1998] QSC 48, cited
Re Hayes’ Will Trusts [1971] 1 WLR 758, cited
Sargeant v National Westminster Bank PLC (1991) 61 P & CR 518, cited
Williams v Federal Commissioner of Taxation (1950) 81 CLR 359, cited

COUNSEL:

D B Fraser QC with R T Whiteford for the applicant
D J Morgan for the respondent

SOLICITORS:

Hillhouse Borough McKeown for the applicant
Gleeson Lawyers for the respondent

This decision deals with an area of the law which has growing practical importance in view of the growth of personal superannuation: how should the legal personal representative of a deceased person deal with the entitlement to payment of the deceased person's superannuation upon death. As can be seen from this case, the amount invested in superannuation…

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 McIntosh v McIntosh

Details

AGLC: McIntosh v McIntosh [2014] QSC 99
Case: [2014] QSC 99
Decision Date: 16 May 2014

CaseChat Overview and Summary

The case of McIntosh v McIntosh involved Elizabeth Joy McIntosh, as the respondent, and her son James Joseph McIntosh, who died intestate. Elizabeth was appointed as the administrator of her son's estate. The dispute arose when Elizabeth sought to claim superannuation death benefits intended for her son's estate for her personal use. The court had to determine if Elizabeth breached her duty under s 52 of the Succession Act 1981 (Qld) by failing to get in the assets of the estate, specifically the superannuation death benefits. Additionally, the court considered whether Elizabeth breached her fiduciary duty by allowing a conflict of personal interest and duty to occur, and if she should be held accountable for the benefits she received.

The primary legal issue was whether Elizabeth, as the administrator, was entitled to the superannuation death benefits for her personal benefit rather than for the estate. The court examined the fiduciary obligations and duties of an administrator under the Succession Act and common law principles. It was necessary to determine if Elizabeth's actions constituted a breach of her fiduciary duty, particularly by not preventing a conflict between her personal interest and her duty as an administrator. The court also needed to assess whether Elizabeth should be required to account for the benefits she had already received.

The court found that Elizabeth had breached her duty under s 52 of the Succession Act by not obtaining the superannuation death benefits for the estate. She had acted in a way that conflicted with her fiduciary duty, as she allowed her personal interest to interfere with her duty as an administrator. The court held that Elizabeth was required to account for the superannuation benefits she had received for her personal use. The court ordered that Elizabeth must account to the estate for the superannuation benefits she had improperly obtained for herself. This decision ensures that the estate receives the benefits that were rightfully intended for it, upholding the integrity of the administration process.

Orders

Orders of the court

The applicant is required to account to the estate of James Joseph McIntosh deceased for the superannuation benefits referred to in paragraph 40 of the affidavit of Elizabeth Joy McIntosh filed on 26 March 2014.

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

McIntosh v McIntosh [2014] QSC 99

Most Recent Citation

Re Thompson; Thompson v Chen [2022] VSC 400

Cases citing this decision · 10 of 11 shown

Kahlon v Kahlon
[2025] SASC 37 Para 10

…uty to get in the estate. Unless the application is made and is successful the funds do not become part of the estate.[57] (footnotes omitted) [55] [2014] QSC 99. [56] [2015] SASC 205. [57] [2014] QSC 99 at [71] – [73].…
Ghosh v Ghosh
[2024] VSC 259 Para 1

…but the superannuation funds had been applied for and paid to her personally by the trustees, albeit that she was administrator of the estate. [217][2014] QSC 99.…
McArthur v Gerhard Janssen as attorney pursuant to section 34 Administration Act for Veronika Logar
[2024] WASCA 15 Para 5

…Letters of Administration. He is the appointee of the court. As administrator, he owes fiduciary duties to the estate.[159] [159] McIntosh v McIntosh [2014] QSC 99 [69] (Atkinson J); Burgess (as administrator of the estate of Burgess) v Burgess [2018] WASC 279 [69] (Kenneth Martin J).…
Re Thompson; Thompson v Chen
[2022] VSC 400 Para 1

…ants have fiduciary obligations to all estate beneficiaries, in this situation particularly Jack’s sisters, to gather the death benefit.[109] [109] McIntosh v McIntosh (2014) 14 ASTLR 367; Brine v Carter [2015] SASC 205 [123], [124].…
Barry v Registrar of Births, Deaths and Marriages
[2022] NSWCATAD 203 Para 28

…ate to the exclusion of the deceased’s will (where there is one) or a non-binding beneficiary nomination; see, for example, McIntosh v McIntosh [2014] QSC 99 and Brine v Carter [2015] SASC 205. Ms Froud was paid death benefit entitlements from Maritime Super however it is not clear the basis on which such paymen…
Gonciarz v Bienias
[2019] WASC 104 Para 1

…hat are not the subject of a binding nomination to the intestate's estate: McIntosh v McIntosh [5] and Burgess v Burgess .[6] [5] McIntosh v McIntosh [2014] QSC 99 (Atkinson J) [70] - [74]. [6] Burgess v Burgess [82] - [92].…
Denise Hilda Burgess as administrator of the estate of Brian Michael Burgess v Burgess
[2018] WASC 279 Para 18

…other superior courts should be distinguished and not followed. In particular, an intestacy scenario considered by Atkinson J in McIntosh v McIntosh [2014] QSC 99 was drawn to my attention - but on the basis that the decision should, in effect, be either distinguished or not followed. Similarly treated was anot…
Brine v Carter
[2015] SASC 205 Para 4

…in breach of her fiduciary duty to act in the best interests of the estate, for which she may be held liable by the court.[38] [37] [2014] QSC 99. [38] At [69]-[71], [73], [78]. (Footnotes omitted).…
Schmidt-Weichert v White
[2015] QDC 14 Para 1

…ation was made as part of a duty to get in the estate): at [71]-[73]. It may, therefore, have provided the required connection and relationship. [10] [2014] QSC 99.…
Gregory Stuart Bowering v Deborah Jayne Knox and David John Bowering (No 2)
[2014] NSWSC 1749 Para 1

…Counsel for the first defendant also referred to McIntosh v McIntosh [2014] QSC 99, in which Atkinson J observed at [62]-[64] that:…

View all 11 citing cases →

Cases cited in this decision · 7 of 7 shown

Calvo v Sweeney
[2009] NSWSC 719 Para 1

…nistrator of the estate but also in breach of the duty which is given statutory expression s 52(1)(a) of the Succession Act 1981. [9] Calvo v Sweeney [2009] NSWSC 719 at [228] per White J.…
Rankine v Rankine
[1998] QSC 48

…LR 248, cited In the Goods of Loveday [1900] P 154, cited Mordecai v Mordecai (1988) 12 NSWLR 58, cited Rankine v Rankine [1998] QSC 48, cited Re Hayes’ Will Trusts [1971] 1 WLR 758, cited Sargeant v National Westminster Bank PLC (1991) 61 P & CR 518, cited Williams v Federal Commissioner of Taxation (1950) 81 C…
Breen v Williams
[1996] HCA 57

…610 Armitage v Nurse [1998] Ch 241, cited Bath v British & Malayan Trustees Ltd [1969] 2 NSWR 114, cited Breen v Williams (1996) 186 CLR 71, cited Bristol and West Building Society v Mothew [1998] Ch 1, cited Butler v Meriga [1904] St R Qd 248, cited Calvo v Sweeney [2009] NSWSC 719, cited Guazzini v Pateson (1918)…
Giannarelli v Wraith
[1988] HCA 52

…275, cited In re Danish Bacon Co [1971] 1 WLR 248, cited In the Goods of Loveday [1900] P 154, cited Mordecai v Mordecai (1988) 12 NSWLR 58, cited Rankine v Rankine [1998] QSC 48, cited Re Hayes’ Will Trusts [1971] 1 WLR 758, cited Sargeant v National Westminster Bank PLC (1991) 61 P & CR 518, cited Williams v Feder…
Williams v Federal Commissioner of Taxation
[1950] HCA 21 Para 1

…egulations 1994 (SIS Regs) which relevantly provides: [10] In re Danish Bacon Co [1971] 1 WLR 248 at 256; Williams v Federal Commissioner of Taxation (1950) 81 CLR 359.…
[1971] 1 WLR 248
[1971] 1 WLR 248 Para 1

…r is found in reg 6.22 of the Superannuation Industry (Supervision) Regulations 1994 (SIS Regs) which relevantly provides: [10] In re Danish Bacon Co [1971] 1 WLR 248 at 256; Williams v Federal Commissioner of Taxation (1950) 81 CLR 359.…
[1971] 1 WLR 758
[1971] 1 WLR 758

…P 154, cited Mordecai v Mordecai (1988) 12 NSWLR 58, cited Rankine v Rankine [1998] QSC 48, cited Re Hayes’ Will Trusts [1971] 1 WLR 758, cited Sargeant v National Westminster Bank PLC (1991) 61 P & CR 518, cited Williams v Federal Commissioner of Taxation (1950) 81 CLR 359, cited COUNSEL: D B Fraser QC with R T Wh…

Legislation cited in this decision · 5

Succession Act 1981 (Qld)
6 2 mentions (from Para 1)
Superannuation Industry (Supervision) Act 1993 (Cth)
10 2 mentions (from Para 1)
Superannuation Industry (Supervision) Regulations 1994 (Cth)
6.22 2 mentions (from Para 1)
Trusts Act 1973 (Qld)
96 2 mentions (from Para 1)
Uniform Civil Procedure Rules 1999 (Qld)
610 2 mentions (from Para 1)

CITATION:	McIntosh v McIntosh [2014] QSC 99
PARTIES:	ELIZABETH JOY McINTOSH (applicant) v JOHN McINTOSH (respondent)
FILE NO/S:	SC 8510/13
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	16 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	23 April 2014
JUDGE:	Atkinson J
ORDER:	The applicant is required to account to the estate of James Joseph McIntosh deceased for the superannuation benefits referred to in paragraph 40 of the affidavit of Elizabeth Joy McIntosh filed on 26 March 2014.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – RIGHTS, POWERS AND DUTIES – GETTING IN AND REALISING THE ESTATE – where the son of the applicant and respondent died intestate – where the applicant was appointed as administrator of the estate – where the applicant sought the payment of superannuation death benefits to herself personally – whether the applicant was in breach of her duty under s 52 of the Succession Act 1981 (Qld) to get in the assets of the estate EQUITY – GENERAL PRINCIPLES – FIDUCIARY OBLIGATIONS – FIDUCIARY DUTY – ACCOUNT FOR BENEFITS GAINED – where the applicant administrator sought the payment of superannuation death benefits to herself personally – whether the applicant breached her fiduciary duty not to allow a conflict of personal interest and duty to occur – whether the applicant should be brought to account for the superannuation benefits Succession Act 1981 (Qld), s 6, s 31, s 50, s 52, s 55A Superannuation Industry (Supervision) Act 1993 (Cth), s 10, s 10A Superannuation Industry (Supervision) Regulations 1994 (Cth), reg 6.22 Trusts Act 1973 (Qld), s 96 Uniform Civil Procedure Rules 1999 (Qld), r 610 Armitage v Nurse [1998] Ch 241, cited Bath v British & Malayan Trustees Ltd [1969] 2 NSWR 114, cited Breen v Williams (1996) 186 CLR 71, cited Bristol and West Building Society v Mothew [1998] Ch 1, cited Butler v Meriga [1904] St R Qd 248, cited Calvo v Sweeney [2009] NSWSC 719, cited Guazzini v Pateson (1918) 18 SR (NSW) 275, cited In re Danish Bacon Co [1971] 1 WLR 248, cited In the Goods of Loveday [1900] P 154, cited Mordecai v Mordecai (1988) 12 NSWLR 58, cited Rankine v Rankine [1998] QSC 48, cited Re Hayes’ Will Trusts [1971] 1 WLR 758, cited Sargeant v National Westminster Bank PLC (1991) 61 P & CR 518, cited Williams v Federal Commissioner of Taxation (1950) 81 CLR 359, cited
COUNSEL:	D B Fraser QC with R T Whiteford for the applicant D J Morgan for the respondent
SOLICITORS:	Hillhouse Borough McKeown for the applicant Gleeson Lawyers for the respondent