Re Hammett - [2023] QSC 249

SUPREME COURT OF QUEENSLAND

CITATION:

Re Hammett [2023] QSC 249

PARTIES:

SHIRLEY ANN DAWSON

(Applicant)

v

ROWENA LARELL RANKINE
(First Respondent)
and
DANIEL RANKINE
(Second Respondent)
and

THECLA SULLIVAN

(Third Respondent)

FILE NO/S:

433 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court of Queensland at Cairns

DELIVERED EX TEMPORE ON:

7 November 2023

DELIVERED AT:

Cairns

HEARING DATE:

6 – 7 November 2023

JUDGE:

Henry J

ORDER:

1. Pursuant to s 6 Succession Act 1981 (Qld) and s 32DA Acts Interpretation Act 1954 (Qld) Shirley Ann Dawson is declared to be the surviving de facto spouse of Richard Charles Hammett (deceased).

2. Pursuant to s 6 Succession Act and r 626 Uniform Civil Procedure Rules 1999, the caveat filed by Rowena Lorelle Rankine against an order to administer the estate and requiring the matter to be referred to the Court as constituted by a Judge, Court file number 266/22, is set aside.

3. Pursuant to s 6 Succession Act and r 610(1)(a) Uniform Civil Procedure Rules, a grant of Letters of Administration be issued to Shirley Ann Dawson as administrator, subject to the formal requirements of the Registrar, but dispensing with any advertising requirement, pursuant to r 598(4) UCPR.

4. Pursuant to s 6 Succession Act, within seven days of the date of this order, Rowena Lorelle Rankine deliver to Shirley Ann Dawson or as her solicitors may direct, the Mitsubishi wagon registration 365LVV registered to the deceased or at least previously registered to the deceased.

5.   The costs of the applicant be paid by the estate on the indemnity basis.

6.   The costs of the respondents up to and including 17 February 2023 be paid by the estate on the indemnity basis.

7.   The costs to be paid pursuant to order (6) are to be reduced by the amount of the applicant’s costs assessed on the standard basis thrown away by the adjournment granted on 14 July 2023.

CATCHWORDS:

SUCCESSION – INTESTACY – SPOUSES – where the applicant and the deceased were in a relationship – where the applicant and the deceased resided together for a period of 13 years before the applicant moved out of the deceased’s home due to an extreme grief reaction to the death of her son – where the applicant and the deceased continued their relationship in all respects other than residing together for six years prior to the deceased’s passing – where the applicant seeks a declaration that she is the surviving spouse of the deceased – whether the applicant and the deceased had lived together on a genuine domestic basis for a continuous period of two years ending on the deceased’s death

Acts Interpretation Act 1954 (Qld) s 32DA
Succession Act 1981 (Qld) ss 5AA, 6
Uniform Civil Procedure Rules 1999 r 610, 626

FO v HAF [2007] 2 Qd R 138, cited
KQ v HAE [2007] 2 Qd R 32, cited
PY v CY [2005] QCA 247, cited
S v B [2005] 1 Qd…

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 Hammett

Details

AGLC: Re Hammett [2023] QSC 249
Case: [2023] QSC 249
Decision Date: 7 November 2023

CaseChat Overview and Summary

In the case of Re Hammett, the court was asked to determine whether Ms Shirley Ann Dawson was the surviving de facto spouse of the deceased, Richard Charles Hammett, entitling her to a grant of Letters of Administration over his estate. The legal issues before the court centred on whether Ms Dawson and Mr Hammett had lived together on a genuine domestic basis for a continuous period of two years before his death. This determination was crucial as it would establish Ms Dawson's eligibility to succeed to Mr Hammett's estate under the Succession Act 1981 (Qld).

The court examined various aspects of the relationship between Ms Dawson and Mr Hammett, including their shared living arrangements, contributions to household chores and expenses, and their conduct after Ms Dawson moved out due to grief following the death of her son. The evidence presented, including text messages and other correspondence, demonstrated that despite not residing together full-time, Ms Dawson continued to contribute significantly to Mr Hammett's household. The court found that the circumstances collectively provided powerful evidence of the couple continuing to live their lives together on a genuine domestic basis. The judge accepted Ms Dawson's explanation for her non-residence, attributing it to her extreme grief reaction following her son's death. Consequently, the court concluded that Ms Dawson was Mr Hammett’s de facto spouse and had lived with him as a couple on a genuine domestic basis for a continuous period exceeding two years.

In light of the court's findings, the orders made included declaring Ms Dawson as the surviving de facto spouse of Mr Hammett, setting aside a caveat filed by another party, issuing Letters of Administration to Ms Dawson, and directing the delivery of a vehicle belonging to Mr Hammett. Additionally, the court addressed costs, directing that the estate would pay the costs of the applicant and the respondents, subject to certain adjustments.

Orders

Orders of the court

1. Pursuant to s 6 Succession Act 1981 (Qld) and s 32DA Acts Interpretation Act 1954 (Qld) Shirley Ann Dawson is declared to be the surviving de facto spouse of Richard Charles Hammett (deceased).

2. Pursuant to s 6 Succession Act and r 626 Uniform Civil Procedure Rules 1999, the caveat filed by Rowena Lorelle Rankine against an order to administer the estate and requiring the matter to be referred to the Court as constituted by a Judge, Court file number 266/22, is set aside.

3. Pursuant to s 6 Succession Act and r 610(1)(a) Uniform Civil Procedure Rules, a grant of Letters of Administration be issued to Shirley Ann Dawson as administrator, subject to the formal requirements of the Registrar, but dispensing with any advertising requirement, pursuant to r 598(4) UCPR.

4. Pursuant to s 6 Succession Act, within seven days of the date of this order, Rowena Lorelle Rankine deliver to Shirley Ann Dawson or as her solicitors may direct, the Mitsubishi wagon registration 365LVV registered to the deceased or at least previously registered to the deceased.

5. The costs of the applicant be paid by the estate on the indemnity basis.

6. The costs of the respondents up to and including 17 February 2023 be paid by the estate on the indemnity basis.

7. The costs to be paid pursuant to order (6) are to be reduced by the amount of the applicant’s costs assessed on the standard basis thrown away by the adjournment granted on 14 July 2023.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Hammett and Ms Dawson shared household expenses and chores when they resided together. Even after Ms Dawson returned to Mount Isa in 2018, she continued to contribute to the running of Mr Hammett’s household, acquiring groceries for the household, undertaking the cooking of meals to be eaten at the household and cleaning weekly when Mr Hammett was working long-shift hours. The text messages in evidence corroborate the significant contribution which Ms Dawson made to the performance of household tasks at Mr Hammett’s home.Conclusion In conclusion, the circumstances of the case in combination provide powerful evidence of Ms Dawson and Mr Hammett continuing to live their lives together in the years preceding Mr Hammett’s death as a couple on a genuine domestic basis. Of course, the prolonged period from 2016 during which Ms Dawson did not reside full time at Mr Hammett’s house is a powerful countervailing consideration. However, I accept Ms Dawson’s explanation that was because of her grief reaction, extraordinary and prolonged as it was. I am fortified in that view by the absence of any other credible explanation for the period of non-residence and the force of the other circumstances evidencing the continued living of their lives together on a genuine domestic basis. In my conclusion, Ms Dawson has proved, on the balance of probabilities, that she was Mr Hammett’s de facto partner, and they lived together as a couple on a genuine domestic basis within the meaning of s 32DA, Acts Interpretation Act, for a continuous period exceeding two years, ending on Mr Hammett’s death. A number of inevitably cascading consequences flow from that conclusion. I should make a declaration consistent with it. I should set aside Ms Rankine’s caveat against an administration order. I should order a grant of Letters of Administration to Ms Dawson and I should order delivery up by Ms Rankine of Mr Hammett’s Mitsubishi wagon. My orders are: (1) Pursuant to s 6 Succession Act 1981 (Qld) and s 32DA Acts Interpretation Act 1954 (Qld) Shirley Ann Dawson is declared to be the surviving de facto spouse of Richard Charles Hammett (deceased).(2) Pursuant to s 6 Succession Act and r 626 Uniform Civil Procedure Rules 1999, the caveat filed by Rowena Lorelle Rankine against an order to administer the estate and requiring the matter to be referred to the Court as constituted by a Judge, Court file number 266/22, is set aside.(3) Pursuant to s 6 Succession Act and r 610(1)(a) Uniform Civil Procedure Rules, a grant of Letters of Administration be issued to Shirley Ann Dawson as administrator, subject to the formal requirements of the Registrar, but dispensing with any advertising requirement, pursuant to r 598(4) UCPR.(4) Pursuant to s 6 Succession Act, within seven days of the date of this order, Rowena Lorelle Rankine deliver to Shirley Ann Dawson or as her solicitors may direct, the Mitsubishi wagon registration 365LVV registered to the deceased or at least previously registered to the deceased.I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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CITATION:	Re Hammett [2023] QSC 249
PARTIES:	SHIRLEY ANN DAWSON (Applicant) v ROWENA LARELL RANKINE (First Respondent) and DANIEL RANKINE (Second Respondent) and THECLA SULLIVAN (Third Respondent)
FILE NO/S:	433 of 2022
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland at Cairns
DELIVERED EX TEMPORE ON:	7 November 2023
DELIVERED AT:	Cairns
HEARING DATE:	6 – 7 November 2023
JUDGE:	Henry J
ORDER:	1. Pursuant to s 6 Succession Act 1981 (Qld) and s 32DA Acts Interpretation Act 1954 (Qld) Shirley Ann Dawson is declared to be the surviving de facto spouse of Richard Charles Hammett (deceased). 2. Pursuant to s 6 Succession Act and r 626 Uniform Civil Procedure Rules 1999, the caveat filed by Rowena Lorelle Rankine against an order to administer the estate and requiring the matter to be referred to the Court as constituted by a Judge, Court file number 266/22, is set aside. 3. Pursuant to s 6 Succession Act and r 610(1)(a) Uniform Civil Procedure Rules, a grant of Letters of Administration be issued to Shirley Ann Dawson as administrator, subject to the formal requirements of the Registrar, but dispensing with any advertising requirement, pursuant to r 598(4) UCPR. 4. Pursuant to s 6 Succession Act, within seven days of the date of this order, Rowena Lorelle Rankine deliver to Shirley Ann Dawson or as her solicitors may direct, the Mitsubishi wagon registration 365LVV registered to the deceased or at least previously registered to the deceased. 5. The costs of the applicant be paid by the estate on the indemnity basis. 6. The costs of the respondents up to and including 17 February 2023 be paid by the estate on the indemnity basis. 7. The costs to be paid pursuant to order (6) are to be reduced by the amount of the applicant’s costs assessed on the standard basis thrown away by the adjournment granted on 14 July 2023.
CATCHWORDS:	SUCCESSION – INTESTACY – SPOUSES – where the applicant and the deceased were in a relationship – where the applicant and the deceased resided together for a period of 13 years before the applicant moved out of the deceased’s home due to an extreme grief reaction to the death of her son – where the applicant and the deceased continued their relationship in all respects other than residing together for six years prior to the deceased’s passing – where the applicant seeks a declaration that she is the surviving spouse of the deceased – whether the applicant and the deceased had lived together on a genuine domestic basis for a continuous period of two years ending on the deceased’s death Acts Interpretation Act 1954 (Qld) s 32DA Succession Act 1981 (Qld) ss 5AA, 6 Uniform Civil Procedure Rules 1999 r 610, 626 FO v HAF [2007] 2 Qd R 138, cited KQ v HAE [2007] 2 Qd R 32, cited PY v CY [2005] QCA 247, cited S v B [2005] 1 Qd…