Pitt v Fricke - [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…

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 Pitt v Fricke

Details

AGLC: Pitt v Fricke [2019] QDC 193
Case: [2019] QDC 193
Decision Date: 26 September 2019 ex tempore

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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