Pierpoint v Liston - [2012] QCA 199

SUPREME COURT OF QUEENSLAND

CITATION:

Pierpoint v Liston [2012] QCA 199

PARTIES:

ALAN WAYNE PIERPOINT
(appellant)
v
LENORA MAY LISTON
(respondent)

FILE NO/S:

Appeal No 10856 of 2011
Appeal No 102 of 2012
SC No 7046 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 April 2012

JUDGES:

Margaret McMurdo P, White JA and Margaret Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     Appeal against order dismissing the application allowed.

2.     Set aside the order dismissing the application.

3.     Instead, order –

i. that the respondent be removed as administrator of the estate of Sherri-Ann Buchanan, and, subject to his consent, the Public Trustee of Queensland administer the unadministered estate of the said deceased; and

ii. that the respondent be removed as trustee of the estate of the said deceased, and, subject to his consent, the Public Trustee of Queensland be appointed trustee of the estate of the said deceased.

4.     Appeal against costs order refused.

5.     No order as to the costs of the appeal.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – where mother of infant children died intestate – where respondent, the grandmother of the children, obtained grant of letters of administration – where appellant, the children’s father, claimed to be entitled to share in estate as de facto spouse of the deceased – where appellant sought revocation of grant to respondent and instead grant to him – where trial judge dismissed that application – where appellant appealed against the dismissal of that application – where appeal was by way of rehearing – where appellant had to show that the trial judge made a legal, factual or discretionary error – whether the respondent should be removed as administrator and trustee – whether actionable misconduct by the respondent – whether in best interests of infant beneficiaries that respondent continue to administer the estate – whether Public Trustee should be appointed in place of respondent pursuant to Public Trustee Act 1978 (Qld), s 31 and s 38

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appellant submitted that the trial judge ought to have ordered his costs be paid out of the estate – whether there was any reason to disturb the trial judge’s findings – whether the trial judge erred in the exercise of her discretion

Acts Interpretation Act 1954 (Qld), s 32DA
Public Trustee Act 1978 (Qld), s 31(1), s 38
Succession Act 1981 (Qld), s 5AA, s 6, Part 3 Division 2, Schedule 2
Trusts Act 1973 (Qld), s 80(1)
Uniform Civil Procedure Rules 1999 (Qld), r 93, r 94, r 95, r 610

Re Estate of Maschke [1994] QSC 72, cited
Re Peter James Gill No 232 of 1991,…

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 Pierpoint v Liston

Details

AGLC: Pierpoint v Liston [2012] QCA 199
Case: [2012] QCA 199
Decision Date: 31 July 2012

CaseChat Overview and Summary

The case of Pierpoint v Liston involved a dispute over the administration of the estate of Sherri-Ann Buchanan, who died intestate, leaving behind infant children. The respondent, the children’s grandmother, obtained a grant of letters of administration. The appellant, the children’s father, claimed entitlement to a share of the estate as the deceased’s de facto spouse, seeking the revocation of the grant to the respondent and its substitution for himself. The trial judge dismissed the appellant’s application, a decision that was subsequently appealed.

The central legal issues were whether the respondent should be removed as the administrator and trustee of the estate, if there was actionable misconduct by the respondent, and whether it was in the best interests of the infant beneficiaries for the respondent to continue administering the estate. Additionally, the court had to determine whether the Public Trustee of Queensland should be appointed in place of the respondent, pursuant to sections 31 and 38 of the Public Trustee Act 1978 (Qld).

The court, in allowing the appeal and ordering a rehearing, found that the trial judge made an error in dismissing the appellant’s application. The court concluded that it was in the best interests of the infant beneficiaries for the respondent to be removed as the administrator and trustee of the estate, with the Public Trustee of Queensland to administer the unadministered estate and act as trustee, subject to consent. The appeal against the costs order was dismissed, and no order was made regarding the costs of the appeal.

In summary, the appeal was allowed, and the orders set aside the dismissal of the appellant’s application, removed the respondent as the administrator and trustee, and appointed the Public Trustee of Queensland in their place, subject to consent. The refusal to order costs out of the estate was upheld, and no costs were ordered for the appeal.

Orders

Orders of the court

1. Appeal against order dismissing the application allowed.

2. Set aside the order dismissing the application.

3. Instead, order –

i. that the respondent be removed as administrator of the estate of Sherri-Ann Buchanan, and, subject to his consent, the Public Trustee of Queensland administer the unadministered estate of the said deceased; and

ii. that the respondent be removed as trustee of the estate of the said deceased, and, subject to his consent, the Public Trustee of Queensland be appointed trustee of the estate of the said deceased.

4. Appeal against costs order refused.

5. No order as to the 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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Pierpoint v Liston [2012] QCA 199
PARTIES:	ALAN WAYNE PIERPOINT (appellant) v LENORA MAY LISTON (respondent)
FILE NO/S:	Appeal No 10856 of 2011 Appeal No 102 of 2012 SC No 7046 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 July 2012
DELIVERED AT:	Brisbane
HEARING DATE:	24 April 2012
JUDGES:	Margaret McMurdo P, White JA and Margaret Wilson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal against order dismissing the application allowed. 2. Set aside the order dismissing the application. 3. Instead, order – i. that the respondent be removed as administrator of the estate of Sherri-Ann Buchanan, and, subject to his consent, the Public Trustee of Queensland administer the unadministered estate of the said deceased; and ii. that the respondent be removed as trustee of the estate of the said deceased, and, subject to his consent, the Public Trustee of Queensland be appointed trustee of the estate of the said deceased. 4. Appeal against costs order refused. 5. No order as to the costs of the appeal.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – ALTERATION AND REVOCATION OF GRANTS – where mother of infant children died intestate – where respondent, the grandmother of the children, obtained grant of letters of administration – where appellant, the children’s father, claimed to be entitled to share in estate as de facto spouse of the deceased – where appellant sought revocation of grant to respondent and instead grant to him – where trial judge dismissed that application – where appellant appealed against the dismissal of that application – where appeal was by way of rehearing – where appellant had to show that the trial judge made a legal, factual or discretionary error – whether the respondent should be removed as administrator and trustee – whether actionable misconduct by the respondent – whether in best interests of infant beneficiaries that respondent continue to administer the estate – whether Public Trustee should be appointed in place of respondent pursuant to Public Trustee Act 1978 (Qld), s 31 and s 38 APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appellant submitted that the trial judge ought to have ordered his costs be paid out of the estate – whether there was any reason to disturb the trial judge’s findings – whether the trial judge erred in the exercise of her discretion Acts Interpretation Act 1954 (Qld), s 32DA Public Trustee Act 1978 (Qld), s 31(1), s 38 Succession Act 1981 (Qld), s 5AA, s 6, Part 3 Division 2, Schedule 2 Trusts Act 1973 (Qld), s 80(1) Uniform Civil Procedure Rules 1999 (Qld), r 93, r 94, r 95, r 610 Re Estate of Maschke [1994] QSC 72, cited Re Peter James Gill No 232 of 1991,…