Pitt v Fricke

Case [2019] QDC 193


DISTRICT COURT OF QUEENSLAND

CITATION:

Pitt v Fricke [2019] QDC 193

PARTIES:

GEUA BUSINA PITT

(respondent)

v

KERRYN LEIGH FRICKE (AS EXECUTOR OF THE WILL OF PAUL DAVID WILLIAM FRICKE DECEASED)

(applicant)

FILE NO/S:

135/19

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Cairns

DELIVERED ON:

26 September 2019 ex tempore

DELIVERED AT:

Cairns

HEARING DATE:

25 September 2019

JUDGE:

Fantin DCJ

ORDERS:

1.   The executor’s application for summary judgment filed 2 September 2019 is dismissed.

2.   The applicant’s application for directions filed 2 September 2019 is allowed and orders are made in terms of the applicant’s draft order.

3.   The applicant’s costs of the executor’s application filed 2 September 2019 and of the applicant’s application filed 2 September 2019 be paid from the estate on an indemnity basis.

4.   The executor’s costs of the executor’s application filed 2 September 2019 and of the applicant’s application filed 2 September 2019 are reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where there is an application under s 41(1) of the Succession Act 1981 (Qld) for further provision from an estate – where the executor of the estate applies for summary dismissal of the application pursuant to r 658 Uniform Civil Procedure Rules 1999 (Qld) on the basis that the respondent has failed to show a prima facie case that she is a person entitled to apply under the Succession Act 1981 (Qld) – where the respondent must establish at trial that she was the de facto spouse of the deceased on his death – whether her claim should be summarily dismissed

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DIRECTIONS –  where the respondent makes a cross-application for directions – where the respondent seeks disclosure of documents, service of material on beneficiaries and a dispute resolution process

Legislation

District Court Act 1976 (Qld) s 68
Succession Act 1981 (Qld) s 5AA, s 32DA, s 41
Uniform Civil Procedure Rules 1999 (Qld) r 658, r 700A

Cases

Atthow v McElhone [2010] QSC 177
Baker v Baker (No 2) [2019] QDC 140
Charlesworth v Griffiths & Anor [2018] QDC 115
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125
Higgins v Higgins [2005] 2 Qd R 502
PY v CY (2005) 34 Fam LR 245
S v B [2005] 1 Qd R 537
Singer v Berghouse (No 2)
(1994) 181 CLR 201

Spencer v Burton [2016] 2 Qd R 215

COUNSEL:

CJ Eylander for the applicant

SOLICITORS:

Smithfield Law for the applicant

The Will and All (J Frizzo) for the respondent

HER HONOUR:   Paul Fricke died in late 2018 in a motorcycle accident.  His sister Kerryn Fricke is the executor of his estate (‘the executor’). 

Geua Pitt has applied pursuant to section 41 of the Succession Act 1981 (Qld) (‘the Act’) for further provision from Mr Fricke’s estate on the basis that she was his de…

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AGLC
Pitt v Fricke [2019] QDC 193
Case
[2019] QDC 193
Decision Date

CaseChat Overview and Summary

In the case of Pitt v Fricke, the dispute was between the executor of an estate and the respondent, who sought further provision from the estate under section 41(1) of the Succession Act 1981 (Qld). The executor applied for the respondent's claim to be summarily dismissed on the basis that she had not established a prima facie case that she was a person entitled to apply under the Succession Act. The respondent subsequently made a cross-application for directions, seeking disclosure of documents, service of material on beneficiaries, and a dispute resolution process. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue was whether the respondent's claim should be summarily dismissed. The respondent needed to establish at trial that she was the de facto spouse of the deceased at the time of his death. The court considered whether the respondent had provided sufficient evidence to meet this burden of proof. Additionally, the court had to determine whether the respondent's cross-application for directions should be granted, and if so, in what terms.

The court dismissed the executor's application for summary judgment, finding that there were sufficient grounds for the respondent to establish her entitlement to claim as a de facto spouse. The court noted that the respondent's affidavit provided a prima facie case, and thus the matter should proceed to trial. Regarding the cross-application for directions, the court allowed the application and made orders in line with the respondent's draft order. The court ordered the respondent's costs to be paid from the estate on an indemnity basis, while reserving the executor's costs.

The court made several orders in relation to the applications. Firstly, the executor's application for summary judgment filed on 2 September 2019 was dismissed. Secondly, the respondent's application for directions, also filed on 2 September 2019, was allowed and orders were made in line with the respondent's draft order. Thirdly, the respondent's costs of both applications were to be paid from the estate on an indemnity basis. Lastly, the executor's costs were reserved.

Orders

Orders of the court

1. The executor’s application for summary judgment filed 2 September 2019 is dismissed.

2. The applicant’s application for directions filed 2 September 2019 is allowed and orders are made in terms of the applicant’s draft order.

3. The applicant’s costs of the executor’s application filed 2 September 2019 and of the applicant’s application filed 2 September 2019 be paid from the estate on an indemnity basis.

4. The executor’s costs of the executor’s application filed 2 September 2019 and of the applicant’s application filed 2 September 2019 are reserved.

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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