Micallef v Micallef; Arrowsmith v Micallef

Case [2012] QSC 239

SUPREME COURT OF QUEENSLAND

CITATION:

Micallef & Anor v Micallef & Anor;  Arrowsmith v Micallef & Ors [2012] QSC 239

PARTIES:

ADRIANO ALFREDO MICALLEF and SILVANO FRANK MICALLEF
(first applicant)
and
LAURETTA CANDIDA DUMESNY
(second applicant)
v
ROBERT JAMES MICALLEF and CHEVONNE ELIZABETH ARROWSMITH (as executors of the will of ALLAN JAMES DUMESNY deceased)
(respondents)


CHEVONNE ELIZABETH ARROWSMITH (as executor of the estate of ALLAN JAMES DUMESNY deceased)
(applicant)
v
ROBERT JAMES MICALLEF (as executor of the estate of ALLAN JAMES DUMESNY deceased)
(first respondent)
and
LAURETTA CANDIDA DUMESNY
(second respondent)
and
MATTHEW DUMESNY
(third respondent)

FILE NOS:

5922 of 2012
6302 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

3 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2012

JUDGE:

Applegarth J

ORDER:

In proceeding 6302 of 2012:

The application is dismissed.

In proceeding 5922 of 2012:

That the respondent executors of the estate of the late Allan James Dumesny be directed pursuant to Section 8 Trusts Act 1973 that, in the premises of:-

(a)     the “renunciation” of a 1/5th share of residue in the estate by each of Adriano Alfredo Micallef, Silvano Frank Micallef and Robert James Micallef, in favour of Lauretta Candida Dumesny; and,

(b)    the orders made by the Honourable Justice Daubney on 6 February 2012 giving effect to the terms of settlement;

the estate should be distributed on the basis that Lauretta Candida Dumesny receives the further provision as ordered as well as 3/5ths of residue; and Chevonne Elizabeth Arrowsmith and Matthew James Dumesny each receives 1/5th of residue.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – Administration generally – Queensland – where beneficiaries under a will purported to “renounce” their residual interests in the estate in favour of another identified beneficiary – where application for directions concerning the effect of those “renunciations” – whether the renunciations operated as “disclaimers” such that the beneficiaries’ interests return to the estate’s residue

Property Law Act 1974 (Qld), s 199
Succession Act 1981 (Qld), s 6

Trusts Act 1973 (Qld), ss 8, 96

Commissioner of Stamp Duties v Livingstone (1964) 112 CLR 12, cited
Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 CLR 614, cited
Karam v Australia and New Zealand Banking Group Ltd [2001] NSWSC 709, applied
Kennon v Spry (2008) 238 CLR 366, cited
Norman v Federal Commissioner of Taxation (1963) 109 CLR 9, cited
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306, cited
Probert v Commissioner of State Taxation(SA) (1998) 72 SASR 48, cited
Re Faulkner [1999] 2 Qd R 49, cited
Re Paradise Motor Co Ltd [1968] 2 All ER 625 at 632, cited

Re Scott (deceased) [1975] 2 All ER 1033 at 1045, cited

COUNSEL:

D J Morgan for the first applicants in 5922 of 2012
A J H Morris QC and B McGlade for the second applicant in 5922 of 2012/the…

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Details
AGLC
Micallef v Micallef; Arrowsmith v Micallef [2012] QSC 239
Case
[2012] QSC 239
Decision Date

CaseChat Overview and Summary

The applicants, Adriano Alfredo Micallef, Silvano Frank Micallef, and Robert James Micallef, sought clarification and direction from the Queensland Supreme Court regarding the effect of their purported renunciations of their residual interests in the estate of Allan James Dumesny, in favour of Lauretta Candida Dumesny. The executors of the estate, the respondents, opposed the application. The court was required to determine whether the renunciations operated as disclaimers such that the renouncers' interests returned to the estate's residue.

The court considered whether the renunciations were effective in the same way as disclaimers, which are governed by section 29 of the Succession Act 1981. The court found that the renunciations did not constitute disclaimers. The court held that the renouncers' interests remained vested in them and were not returned to the residue of the estate. The court also considered the effect of the orders made by Justice Daubney on 6 February 2012, which gave effect to the terms of settlement. The court held that these orders did not alter the effect of the renunciations.

Accordingly, the court dismissed the application for directions in proceeding 6302 of 2012. In proceeding 5922 of 2012, the court directed the executors to distribute the estate on the basis that Lauretta Candida Dumesny receives the further provision as ordered as well as three-fifths of the residue, and Chevonne Elizabeth Arrowsmith and Matthew James Dumesny each receive one-fifth of the residue.

Orders

Orders of the court

In proceeding 6302 of 2012:

The application is dismissed.

In proceeding 5922 of 2012:

That the respondent executors of the estate of the late Allan James Dumesny be directed pursuant to Section 8 Trusts Act 1973 that, in the premises of:-

(a) the “renunciation” of a 1/5th share of residue in the estate by each of Adriano Alfredo Micallef, Silvano Frank Micallef and Robert James Micallef, in favour of Lauretta Candida Dumesny; and,

(b) the orders made by the Honourable Justice Daubney on 6 February 2012 giving effect to the terms of settlement;

the estate should be distributed on the basis that Lauretta Candida Dumesny receives the further provision as ordered as well as 3/5ths of residue; and Chevonne Elizabeth Arrowsmith and Matthew James Dumesny each receives 1/5th of residue.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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