Quinn v Lovell - [2011] QSC 396

SUPREME COURT OF QUEENSLAND

CITATION:

Quinn v Lovell [2011] QSC 396

PARTIES:

MICHAEL MORRISON QUINN
(applicant)
v

AARON JOHN LOVELL as administrator of the Estate of Evelyn Maud Watkins (Deceased)
(respondent)

FILE NO/S:

BS5806/11

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

16 December 2011

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

20 July 2011

JUDGE:

Douglas J

ORDER:

(1) Direct, pursuant to s 6(1) of the Succession Act 1981 (Qld), that the respondent shall forthwith give a written direction to Johnsons solicitors to pay the sum of $93,178.66 with accretions, if any, to the trust account of the applicant’s solicitors;

(2) Direct that the respondent pay the applicant interest on the sum claimed of $84,493.58 at nine per cent per annum from 22 June 2011 until the date of payment of that sum to the applicant.

CATCHWORDS:

PROCEDURE – COSTS – SOLICITOR AND CLIENT – LIENS – where action brought by deceased prior to death against her neighbour – where costs agreements relevant to action – where action settled – where neighbour paid $93,178.66 into neighbour’s solicitors’ trust account – where money held on trust by neighbour’s solicitors in anticipation of court order or to pay sum into court – where money found to be subject to solicitor’s particular lien – where costs agreements authorised solicitor to receive client’s monies and to deduct costs – whether direction sought pursuant to s 6(1) of the Succession Act 1981 (Qld) ought be made to enforce lien

SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATIORS – where respondent appointed as administrator of estate pursuant to limited grant pending grant of probate – where respondent seeking monies held on trust by neighbour’s solicitors to be released to respondent as administrator of estate – where application for direction that respondent give written direction to neighbour’s solicitors to pay $93,178.66 into applicant’s solicitors’ trust account together with interest on $84,493.58 from 22 June 2011 and costs on indemnity basis fixed in sum of $10,000 – whether discretion ought be exercised under s 6(1) of the Succession Act 1981 (Qld)

Succession Act 1981 (Qld), s 6(1)

Commissioner of Taxation v Government Insurance Office of NSW (1992) 36 FCR 314, cited
Halvanon Insurance Co Ltd v Central Reinsurance Corp [1988] 3 All ER 857, considered
Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96, considered
Philippa Power & Associates v Primrose Couper Cronin Rudkin [1997] 2 Qd R 266 considered
Re De Groot [2001] 2 Qd R 359, cited
Watkins v Christian [2008] QSC 345, referred
Worrell v Power & Power (1993) 46 FCR 214, cited

COUNSEL:

R J Leneham (solicitor) for the applicant
R S Ashton for the respondent

SOLICITORS:

Quinn & Scattini Lawyers for the applicant
Collas Moro Ross for the respondent

Douglas J: This is an application pursuant to s 6(1) of the Succession Act 1981 (Qld) for a direction that the respondent as administrator of the deceased estate of Evelyn Maud Watkins give a written…

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 Quinn v Lovell

Details

AGLC: Quinn v Lovell [2011] QSC 396
Case: [2011] QSC 396
Decision Date: 16 December 2011

CaseChat Overview and Summary

The case of Quinn v Lovell involved a dispute between the applicant, appointed as the administrator of the estate of a deceased, and the respondent, who was the neighbour of the deceased. The deceased had initiated legal action against the respondent before her death, and the action was subsequently settled. The respondent had paid the settlement amount of $93,178.66 into the trust account of the respondent’s solicitors, who held the money pending a court order or to pay the sum into court. The applicant sought a direction under section 6(1) of the Succession Act 1981 (Qld) to enforce a lien over the money held by the respondent’s solicitors.

The primary legal issues before the court were whether the court should exercise its discretion to direct the respondent to pay the settlement amount into the applicant’s solicitors’ trust account and whether the respondent should pay interest on the settlement amount. The court also had to consider the enforceability of the lien over the settlement money held by the respondent’s solicitors. This hinged on the terms of the costs agreements and whether they authorised the respondent’s solicitors to receive the client’s monies and deduct costs.

The court found that the costs agreements did indeed authorise the respondent’s solicitors to receive the client’s monies and deduct costs, thereby creating a particular lien over the settlement amount. Consequently, the court exercised its discretion under section 6(1) of the Succession Act 1981 (Qld) to direct the respondent to pay the settlement amount, with any accretions, into the trust account of the applicant’s solicitors. Additionally, the court ordered the respondent to pay interest on the settlement amount from a specified date until payment to the applicant. This decision was made to ensure that the applicant, as the administrator of the estate, could properly administer the estate and distribute the funds according to the deceased’s wishes.

Orders

Orders of the court

(1) Direct, pursuant to s 6(1) of the Succession Act 1981 (Qld), that the respondent shall forthwith give a written direction to Johnsons solicitors to pay the sum of $93,178.66 with accretions, if any, to the trust account of the applicant’s solicitors;

(2) Direct that the respondent pay the applicant interest on the sum claimed of $84,493.58 at nine per cent per annum from 22 June 2011 until the date of payment of that sum to the applicant.

Background

Background to the litigation

Full text does not contain this section.

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:	Quinn v Lovell [2011] QSC 396
PARTIES:	MICHAEL MORRISON QUINN (applicant) v AARON JOHN LOVELL as administrator of the Estate of Evelyn Maud Watkins (Deceased) (respondent)
FILE NO/S:	BS5806/11
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	16 December 2011
DELIVERED AT:	Supreme Court, Brisbane
HEARING DATE:	20 July 2011
JUDGE:	Douglas J
ORDER:	(1) Direct, pursuant to s 6(1) of the Succession Act 1981 (Qld), that the respondent shall forthwith give a written direction to Johnsons solicitors to pay the sum of $93,178.66 with accretions, if any, to the trust account of the applicant’s solicitors; (2) Direct that the respondent pay the applicant interest on the sum claimed of $84,493.58 at nine per cent per annum from 22 June 2011 until the date of payment of that sum to the applicant.
CATCHWORDS:	PROCEDURE – COSTS – SOLICITOR AND CLIENT – LIENS – where action brought by deceased prior to death against her neighbour – where costs agreements relevant to action – where action settled – where neighbour paid $93,178.66 into neighbour’s solicitors’ trust account – where money held on trust by neighbour’s solicitors in anticipation of court order or to pay sum into court – where money found to be subject to solicitor’s particular lien – where costs agreements authorised solicitor to receive client’s monies and to deduct costs – whether direction sought pursuant to s 6(1) of the Succession Act 1981 (Qld) ought be made to enforce lien SUCCESSION – EXECUTORS AND ADMINISTRATORS – PROCEEDINGS AGAINST EXECUTORS AND ADMINISTRATIORS – where respondent appointed as administrator of estate pursuant to limited grant pending grant of probate – where respondent seeking monies held on trust by neighbour’s solicitors to be released to respondent as administrator of estate – where application for direction that respondent give written direction to neighbour’s solicitors to pay $93,178.66 into applicant’s solicitors’ trust account together with interest on $84,493.58 from 22 June 2011 and costs on indemnity basis fixed in sum of $10,000 – whether discretion ought be exercised under s 6(1) of the Succession Act 1981 (Qld) Succession Act 1981 (Qld), s 6(1) Commissioner of Taxation v Government Insurance Office of NSW (1992) 36 FCR 314, cited Halvanon Insurance Co Ltd v Central Reinsurance Corp [1988] 3 All ER 857, considered Ex parte Patience; Makinson v The Minister (1940) 40 SR (NSW) 96, considered Philippa Power & Associates v Primrose Couper Cronin Rudkin [1997] 2 Qd R 266 considered Re De Groot [2001] 2 Qd R 359, cited Watkins v Christian [2008] QSC 345, referred Worrell v Power & Power (1993) 46 FCR 214, cited
COUNSEL:	R J Leneham (solicitor) for the applicant R S Ashton for the respondent
SOLICITORS:	Quinn & Scattini Lawyers for the applicant Collas Moro Ross for the respondent