Otto v Redhead & Ors - [2009] QCA 147

SUPREME COURT OF QUEENSLAND

CITATION:

Otto v Redhead & Ors [2009] QCA 147

PARTIES:

GLENN LAWRENCE OTTO
(applicant/appellant)
v
GRAHAM REGINALD REDHEAD and PETER CHRISTIAN THOMPSON (as executors and trustees of the will of BERYL MAY OTTO, deceased)
(first respondents/first respondents)
BRETT ADRIAN OTTO
(second respondent/second respondent)

FILE NO/S:

Appeal No 13220 of 2008
SC No 3010 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2009

JUDGES:

Keane and Fraser JJA and Applegarth J
Judgment of the Court

ORDERS:

1. Appeal dismissed

2. The appellant to pay the costs of each set of respondents of and incidental to the appeal to be assessed on the indemnity basis

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – TITLE AND ESTATE OF – REMOVAL AND DISCHARGE – where appellant applied for the summary removal of executors of deceased estate – where appellant and second respondent brothers and beneficiaries of the estate – where appellant alleged misconduct by executors – where alleged misconduct involved advantaging second respondent over appellant – where final distribution from estate imminent – whether executors should be removed

Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293, cited
Bates v Messner (1967) 67 SR (NSW) 187, applied
Otto v Redhead & Anor [2008] QSC 280, affirmed

COUNSEL:

D R M Murphy SC for the appellant
R I M Lilley SC, with D J Morgan, for the first respondents
D G Mullins SC for the second respondent

SOLICITORS:

McCullough Robertson for the appellant
O'Reilly Lillicrap for the first respondents
HopgoodGanim Lawyers for the second respondent

THE COURT: The appellant, Mr Glenn Lawrence Otto ("GLO"), applied for the summary removal of the first respondents, Messrs Redhead and Thompson ("the executors"), as executors of the estate of his mother, Beryl Otto ("the deceased"). The other respondent to the appeal is GLO's brother, Mr Brett Adrian Otto ("BAO"). Both GLO and BAO are beneficiaries of the estate. GLO also sought other orders, including an order that the executors confer with his valuers and the valuers retained by the executors for the purpose of revising if necessary the valuation of the assets of the estate. He also sought an order for an interim distribution from the estate of $500,000 to each of himself and BAO.

The application for the removal of the executors was based upon a number of assertions of misconduct on the part of the executors including advantaging BAO at the expense of GLO. The concerns which led to the application relate principally to the shareholding of the deceased in Otto Developments Pty Ltd ("the company") which owns land in Bundaberg. Some of the company's land is used by a company of which BAO is a director. The shareholding in the company is only one of the assets of the estate being administered by the executors.

The deceased died on 20 September 2005. In October 2005 GLO commenced a correspondence…

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 Otto v Redhead & Ors

Details

AGLC: Otto v Redhead [2009] QCA 147
Case: [2009] QCA 147
Decision Date: 29 May 2009

CaseChat Overview and Summary

Otto v Redhead & Ors concerned an application by the appellant, Otto, for the summary removal of the executors of his deceased father's estate. The respondents were the executors of the estate, including his brother, the second respondent. Otto alleged misconduct by the executors, which involved advantaging his brother over him, and sought their removal as the estate was nearing final distribution. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the alleged misconduct by the executors justified their summary removal and if the timing of the application, with final distribution imminent, impacted the court's decision. The court needed to balance the appellant's allegations against the principle that executors should not be removed lightly, especially when the estate is close to distribution.

The court found that the appellant had not demonstrated a prima facie case of misconduct warranting the removal of the executors. The court noted that the appellant had not provided sufficient evidence to substantiate his allegations, and the timing of the application, with final distribution imminent, did not necessitate the removal of the executors. The court emphasised the importance of the executors' role in the orderly distribution of the estate and the potential prejudice to the estate and beneficiaries if the executors were removed at such a late stage. The appeal was dismissed, and the appellant was ordered to pay the costs of each set of respondents on an indemnity basis.

Orders

Orders of the court

1. Appeal dismissed

2. The appellant to pay the costs of each set of respondents of and incidental to the appeal to be assessed on the indemnity basis

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:	Otto v Redhead & Ors [2009] QCA 147
PARTIES:	GLENN LAWRENCE OTTO (applicant/appellant) v GRAHAM REGINALD REDHEAD and PETER CHRISTIAN THOMPSON (as executors and trustees of the will of BERYL MAY OTTO, deceased) (first respondents/first respondents) BRETT ADRIAN OTTO (second respondent/second respondent)
FILE NO/S:	Appeal No 13220 of 2008 SC No 3010 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	21 May 2009
JUDGES:	Keane and Fraser JJA and Applegarth J Judgment of the Court
ORDERS:	1. Appeal dismissed 2. The appellant to pay the costs of each set of respondents of and incidental to the appeal to be assessed on the indemnity basis
CATCHWORDS:	SUCCESSION – EXECUTORS AND ADMINISTRATORS – TITLE AND ESTATE OF – REMOVAL AND DISCHARGE – where appellant applied for the summary removal of executors of deceased estate – where appellant and second respondent brothers and beneficiaries of the estate – where appellant alleged misconduct by executors – where alleged misconduct involved advantaging second respondent over appellant – where final distribution from estate imminent – whether executors should be removed Baldwin v Greenland [2007] 1 Qd R 117; [2006] QCA 293, cited Bates v Messner (1967) 67 SR (NSW) 187, applied Otto v Redhead & Anor [2008] QSC 280, affirmed
COUNSEL:	D R M Murphy SC for the appellant R I M Lilley SC, with D J Morgan, for the first respondents D G Mullins SC for the second respondent
SOLICITORS:	McCullough Robertson for the appellant O'Reilly Lillicrap for the first respondents HopgoodGanim Lawyers for the second respondent