Mortimer v Lusink

Case [2017] QCA 1

SUPREME COURT OF QUEENSLAND

CITATION:

Mortimer v Lusink & Ors [2017] QCA 1

PARTIES:

ANITA NARELLE MORTIMER (under Part 4 of the Succession Act 1981)
(appellant)
v
CHRISTOPHER THEODORE GORDON LUSINK (as executor of the will of Loma Narelle Green deceased)
(first respondent)
CHRISTOPHER THEODORE GORDON LUSINK (in his personal capacity)
(second respondent)
VANESSA LUSINK
(third respondent)
GORDON THEODORE LUSINK
(fourth respondent)

FILE NO/S:

Appeal No 6284 of 2016
SC No 3842 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2016] QSC 119

DELIVERED ON:

31 January 2017

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2016

JUDGES:

Gotterson and Morrison JJA and Jackson J
Separate reasons for judgment of each member of the Court, Gotterson and Morrison JJA concurring as to the orders made, Jackson J dissenting in part

ORDERS:

1.   The appeal be allowed.

2.   The orders of the Supreme Court made on 2 June 2016 be set aside and in lieu thereof it be ordered that:

a.   It is directed that the Applicant’s application for provision out of the estate of Loma Narelle Green deceased shall be heard notwithstanding that such application was not instituted within nine months after the death of the deceased.

b.   By consent, all amounts received by the Second, Third and Fourth Respondents from the First Respondent, less any amounts paid by them for reasonable legal fees and expenses incurred in responding to this proceeding, shall be repaid to the First Respondent forthwith and be held by him as executor of the estate of Loma Narelle Green deceased pending the determination of the Applicant’s application for provision out of the estate of Loma Narelle Green deceased.

c.   By consent, the proceedings are discontinued as against the Second, Third and Fourth Respondents upon such payment.

d.   Pursuant to the CivilProceedingsAct 2011 it is ordered that the proceeding be transferred to the District Court held at Brisbane.

e.   Directions be made in compliance with Practice Direction No 8 of 2001.

3.   The First Respondent pay the appellant’s costs of the appeal, including the application to adduce further evidence, and her costs of the application below.

4. The First Respondent be granted a certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld), including for his own costs of the appeal.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – PROCEDURE – TIME FOR MAKING APPLICATION – EXTENSION OF TIME – PARTICULAR CASES – where the appellant, the testator’s daughter, was refused an application for an extension of time within which to apply for provision from the estate – where it is alleged on appeal that the primary judge reached his conclusions by the application of principles or considerations applicable to the grant of final relief, rather than those applicable to the exercise of the discretion under s 41(8) of the Succession Act 1981 (Qld) – where it is further alleged that the primary judge made factual errors arising from misapprehensions of the evidence – where the…

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AGLC
Mortimer v Lusink [2017] QCA 1
Case
[2017] QCA 1
Decision Date

CaseChat Overview and Summary

In Mortimer v Lusink, the appellant, the deceased's daughter, sought an extension of time to apply for provision from the estate under the Succession Act 1981 (Qld). The primary judge dismissed the application, leading to the appeal. The appellant argued that the primary judge applied the wrong legal principles and misinterpreted the evidence. The appeal focused on whether the primary judge correctly exercised the discretion under s 41(8) of the Succession Act 1981 (Qld).

The court examined the grounds of appeal, which were divided into errors of principle and factual errors. The appellant contended that the primary judge applied principles relevant to final relief instead of the discretion under s 41(8). The appellant also argued that the primary judge made factual errors due to misapprehensions of the evidence. The court assessed these arguments to determine if the primary judge should have exercised the discretion in favour of the appellant.

The court found that the primary judge applied the wrong legal principles and misapprehended the evidence. The primary judge's reliance on the need for the applicant to establish an entitlement to final relief, instead of whether an arguable case for relief was made, was erroneous. Additionally, the court identified factual errors in the primary judge's assessment of the evidence. The court concluded that the primary judge should have exercised the discretion under s 41(8) in favour of the appellant.

The appeal was allowed, setting aside the orders made by the Supreme Court on 2 June 2016. The court directed that the appellant's application for provision out of the estate be heard, ordered the repayment of certain amounts to the executor, discontinued the proceedings against certain respondents, and transferred the proceeding to the District Court. The executor was also ordered to pay the appellant's costs of the appeal and the application below, and a certificate was granted under s 15 of the Appeal Costs Fund Act 1973 (Qld) for the executor's costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Supreme Court made on 2 June 2016 be set aside and in lieu thereof it be ordered that:

a. It is directed that the Applicant’s application for provision out of the estate of Loma Narelle Green deceased shall be heard notwithstanding that such application was not instituted within nine months after the death of the deceased.

b. By consent, all amounts received by the Second, Third and Fourth Respondents from the First Respondent, less any amounts paid by them for reasonable legal fees and expenses incurred in responding to this proceeding, shall be repaid to the First Respondent forthwith and be held by him as executor of the estate of Loma Narelle Green deceased pending the determination of the Applicant’s application for provision out of the estate of Loma Narelle Green deceased.

c. By consent, the proceedings are discontinued as against the Second, Third and Fourth Respondents upon such payment.

d. Pursuant to the Civil Proceedings Act 2011 it is ordered that the proceeding be transferred to the District Court held at Brisbane.

e. Directions be made in compliance with Practice Direction No 8 of 2001.

3. The First Respondent pay the appellant’s costs of the appeal, including the application to adduce further evidence, and her costs of the application below.

4. The First Respondent be granted a certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld), including for his own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusions: The learned primary judge stated his conclusions for dismissing the application in the following two paragraphs:“[40] In an application of this kind, the applicant is assumed to have ‘put her best foot forward’.[42] Her best case, then, is one in which the applicant:(a)Has not established that the deceased was mistaken in her assumptions about the applicant’s position;(b)Has been shown to have been emotionally removed from the deceased and to have had little contact with her for over half a century;(c)Has no entitlement to provision as of right; and(d)Is living in modest, but not straitened, financial circumstances.[41]The applicant must do more than show that she might succeed. She has to demonstrate ‘a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time’. This she has not done. The factors in her favour are too weak to justify the order sought. Further, even if the application were allowed to proceed and the applicant were to succeed, I am satisfied that any order that might be made in the applicant’s favour would be so limited that it would be disproportionate to the costs involved.”[43]On 2 June 2016, his Honour ordered that the application be dismissed and that the appellant pay the respondents’ costs of the application, including reserved costs, on the standard basis.[44] [42]Higgins v Higgins [2005] QSC 110; [2005] 2 Qd R 502 at [46] per White J.[43]AB238.[44]AB239. The appellant’s notice of appeal filed on 24 June 2016[45] lists some 14 grounds of appeal. The grounds may be categorised into two broad classes. There are those that allege error of principle and those that allege factual errors arising from misapprehensions of the evidence. The relief sought includes an order setting aside the orders made on 2 June 2016, an order under s 41(8) of the Act directing that the appellant’s application for further provision be heard, and an order transferring the proceeding to the District Court at Brisbane.[45]AB242-253. It is appropriate to consider the two classes of error separately. For convenience, I shall refer first to the grounds alleging error of principle. The appellant submits that despite the extensive references made by the learned primary judge to the decision of this Court in Hills in his discussion of relevant principles, his Honour failed to follow it in reaching the conclusions expressed at paragraphs 40 and 41 of his reasons. In short, the submission is that he reached those conclusions by the application of principles or considerations applicable to the grant of final relief, rather than those applicable to the exercise of the discretion under s 41(8). In developing the argument, senior counsel for the appellant cited his Honour’s reliance upon the decision of White J in Higgins. He noted that her Honour’s statement that the applicant must be assumed “to have put his best foot forward evidentially” was made about an applicant for final relief who was facing an application for summary dismissal of his application and who had not indicated that there was further material which he wished to have the opportunity of adducing.

Ratio Decidendi

Legal Principle Established

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