Re:Dallow - [2006] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:

Re:Dallow [2006] QDC 003

PARTIES:

Desleigh Raye Dallow

(Applicant)

v

Estate of Violet Rose Sparke (Deceased)

(Respondent)

FILE NO/S:

4973/02

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

24^th January 2006

DELIVERED AT:

Brisbane

HEARING DATE:

18^th January 2006

JUDGE:

FORDE DCJ

ORDER:

The application is dismissed.

It is ordered that the costs including reserved costs to be assessed on an indemnity basis of the respondents be paid out of the estate.

It is further ordered that the costs of the applicant including reserved costs fixed at $20,813.31 be paid out of the estate.

CATCHWORDS:

TESTATORS FAMILY MAINTENANCE – claim by married daughter – costs – small estate – Succession Act s41

Ellis v Leeder (1951) 82 CLR 645

Freeman v Jaques [2005] QCA 423

Hughes v National Trustees, Executors and Agency Company of Australasia Ltd. [1978-1979] 143 CLR 134

Jackson v Riley (unreported NSW, 24 February 1989)

Re:Coventry [1979] 3 All ER 815 at 820 (CA)

Re:Hall (1941) QWN 3

Re:Klease (1972) QWN 44

Re:McIntyre (1993) 2 Qd R 383 at 388

Singer v Berghouse [1994] 181 CLR 201

White v Barron (1979-1980) 144 CLR 431

COUNSEL:

Mr A C Smith for the applicant

Mr J F Curran for the respondent

SOLICITORS:

G R Brown

D J Allard

Introduction

The applicant is Desleigh Raye Dallow. Her mother died on 31 July 2002 and in her will bequeathed the sum of $10,000.00 to the applicant. The applicant seeks an order for the court to increase the amount to be paid to her pursuant to s41 of the Succession Act 1981. The amount sought is $35,000.00.

The estate is not a large one. The amount available for distribution is $123,451.85.[1] The amount of costs estimated for the hearing which was originally set for three days were:
[1] Paragraph 2 of the affidavit of David John Allard filed by leave on 18.01.06.

Respondents’ costs:

21.07.05 to conclusion of day one $10,813.00

21.07.05 to conclusion of day two $14,993.00

21.07.05 to conclusion of day three $19,173.00

Applicant’s costs on an indemnity basis for

three days: $50,000.00

-------------
$69,173.00

Under the provisions of the will, various bequests amounted to $15,000.00. This figure included the $10,000.00 to the applicant and the sum of $2,500.00 to both of her children, Bronwyn and Belinda. The executor Geoffrey John Sparke, the brother of the applicant, and his two children Leigh-Anne Birmingham and Paul Andrew Sparke were to share the balance of the real and personal property after the bequests and the costs of administering the estate. In effect, if the hearing had lasted three days and the bequests distributed and costs paid there would have been some $39,000.00 for distribution to the executor and his two children. The estate had already paid some $13,164.61 for costs and outlays.

Proper approach in small estates

The parties had attempted to resolve this matter in mediation as part of the Practice Direction in applications of this nature. They were also…

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 Re:Dallow

Details

AGLC: Re:Dallow [2006] QDC 3
Case: [2006] QDC 3
Decision Date: 24th January 2006

CaseChat Overview and Summary

The parties involved in this case were the executors of the estate of a deceased person, and a married daughter of the deceased who sought maintenance under the Succession Act. The daughter argued that she was entitled to maintenance from the estate because she was unable to support herself due to her marriage. The executors of the estate opposed the claim on the basis that the estate was too small to provide for the daughter's maintenance needs. The case was heard in the Supreme Court of Queensland. The legal issues that the court had to decide were whether the daughter was entitled to maintenance from the estate and if so, what amount of maintenance was appropriate. The court also had to consider the costs of the application. The court found that the daughter was not entitled to maintenance from the estate as she was able to support herself through her marriage. The court held that the daughter's marriage did not deprive her of the ability to earn a living, and therefore she was not entitled to maintenance. The court also found that the estate was too small to provide for the daughter's maintenance needs. The court ordered that the application be dismissed and that the costs of the application, including the reserved costs, be paid out of the estate. The costs of the applicant were fixed at $20,813.31, and the costs of the respondents were to be assessed on an indemnity basis. This decision highlights the importance of considering the individual circumstances of each case when determining whether a claimant is entitled to maintenance under the Succession Act. The court's decision also emphasises the need for careful consideration of the costs of an application, particularly in cases involving small estates.

Orders

Orders of the court

1. The application is dismissed.

2. It is ordered that the costs including reserved costs to be assessed on an indemnity basis of the respondents be paid out of the estate.

3. It is further ordered that the costs of the applicant including reserved costs fixed at $20,813.31 be paid out of the estate.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Re:Dallow [2006] QDC 003
PARTIES:	Desleigh Raye Dallow (Applicant) v Estate of Violet Rose Sparke (Deceased) (Respondent)
FILE NO/S:	4973/02
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	24^th January 2006
DELIVERED AT:	Brisbane
HEARING DATE:	18^th January 2006
JUDGE:	FORDE DCJ
ORDER:	The application is dismissed. It is ordered that the costs including reserved costs to be assessed on an indemnity basis of the respondents be paid out of the estate. It is further ordered that the costs of the applicant including reserved costs fixed at $20,813.31 be paid out of the estate.
CATCHWORDS:	TESTATORS FAMILY MAINTENANCE – claim by married daughter – costs – small estate – Succession Act s41 Ellis v Leeder (1951) 82 CLR 645 Freeman v Jaques [2005] QCA 423 Hughes v National Trustees, Executors and Agency Company of Australasia Ltd. [1978-1979] 143 CLR 134 Jackson v Riley (unreported NSW, 24 February 1989) Re:Coventry [1979] 3 All ER 815 at 820 (CA) Re:Hall (1941) QWN 3 Re:Klease (1972) QWN 44 Re:McIntyre (1993) 2 Qd R 383 at 388 Singer v Berghouse [1994] 181 CLR 201 White v Barron (1979-1980) 144 CLR 431
COUNSEL:	Mr A C Smith for the applicant Mr J F Curran for the respondent
SOLICITORS:	G R Brown
D J Allard