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Re Murray (deceased)

Re Murray (deceased)

Case [2020] QSC 155 12 June 2020

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SUPREME COURT OF QUEENSLAND

CITATION:

Re Murray (deceased) [2020] QSC 155

PARTIES:

ARTHUR LESLEY DOUGLAS CRUMMER AS THE EXECUTOR OF THE ESTATE OF RAYMOND JOHN MURRAY (DECEASED)

(applicant)

v
AAI LIMITED ABN 48 005 297 807 TRADING AS AAMI

(respondent)

FILE NO:

BS 3720 of 2020

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2020, 15 April 2020, and written submissions received 20 April 2020

JUDGE:

Dalton J

ORDER:

Advice given pursuant to s 96 Trusts Act 1973 (Qld)

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – GENERALLY – where the executor of a will seeks the Court’s advice about suing insurer – where all parties interested in the estate served – where insurer not served – whether court should give advice rather than determine questions between adversaries

INSURANCE – THE POLICY – CONDITIONS, WARRANTIES AND EXCEPTIONS – EXCLUSION CLAUSES – anyone who usually lives at the insured address – ordinarily resident – person who normally lives with you –where the deceased’s son visited the deceased to make arrangements for his ongoing care – where the deceased died following a fire at his address – where the deceased’s son brought a claim for personal injuries arising out of the fire – whether the executor is justified in insisting on indemnity from the insurer under the house and contents policy of the deceased – whether the deceased’s son was ordinarily resident at his father’s address at the time of the incident

Trusts Act 1973 (Qld)

Allianz Australia Insurance Ltd v Inglis [2016] WASCA 25
Ban v The Public Trustee of Queensland [2015] QCA 18
Cardiacos v Cooper Consulting and Construction Services (Aust) Pty Ltd [2009] NSWSC 938
Clarke v Clarke; Insurance Office of Australia Ltd (1964) VR 773
Dunning v Dunning [2011] NSWSC 1278
Macedonian Orthodox Community Church St Petka Inc (2008) 237 CLR 66
Thompson v Minister of Natural Revenue [1946] SCR 209
Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219

COUNSEL:

JW Lee for the applicant
K Cummins, solicitor, for Mr G Murray
D Skennar QC for Dr C Bain
AP Colman, solicitor, for Mr J Bain and Mr A Bain

SOLICITORS:

Lynch Law for the applicant
Murphy Schmidt for Mr G Murray
Pippa Colman & Associates for Mr J Bain and Mr A Bain

This is an application pursuant to s 96 of the Trusts Act 1973 (Qld). The executor of a will seeks the Court’s advice as to whether or not he is justified in commencing proceedings against the insurer, AAMI, seeking an indemnity under the house and contents policy of the deceased man with respect to a personal injuries claim brought by his son.
Section 96 of the Trusts Act
Section 96 of the Trusts Act provides:
“Right of trustee to apply to court for directions
(1)Any trustee may apply upon a written statement of…

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 Murray (deceased)

Details

AGLC: Re Murray (deceased) [2020] QSC 155
Case: [2020] QSC 155
Decision Date: 12 June 2020

CaseChat Overview and Summary

In the case of Re Murray (deceased), the executor of the deceased's estate sought advice from the court regarding whether to proceed with legal action against the insurer for indemnity under the house and contents policy. The deceased passed away following a fire at his residence, and his son, Guy Murray, who had been residing in the United Kingdom, made a claim for personal injuries arising from the fire. The insurer declined to indemnify the estate, asserting that Guy Murray was ordinarily resident at his father's address at the time of the incident, thereby falling under an exclusion clause in the insurance policy.

The legal issues central to the court's consideration involved the interpretation of the term "ordinarily resident" within the context of the insurance policy's exclusion clause and whether Guy Murray's temporary visit to Australia constituted ordinary residence. The court needed to determine whether Guy Murray's intentions and actions aligned with the insurer's interpretation of the exclusion clause, and whether it was in the estate's best interest to pursue the claim against the insurer.

The court examined the facts surrounding Guy Murray's visit and concluded that his intention was to stay in Australia only temporarily to arrange for his father's ongoing care before returning to the United Kingdom or South Africa. The court found that Guy Murray had no application for Australian residence and his actions did not support the insurer's claim of ordinary residence. The court provided advice that it was not in the best interests of the estate to proceed with litigation against the insurer, as the prospects of success were poor, given the clear interpretation of the exclusion clause and Guy Murray's temporary status in Australia.

The court's advice under section 96 of the Trusts Act 1973 (Qld) guided the executor to not pursue the claim against the insurer, as it was deemed not in the estate's interests to do so.

Orders

Orders of the court

Advice given pursuant to s 96 Trusts Act 1973 (Qld)

Background

Background to the litigation

In order to decide what is in the interests of the estate, it is necessary for me to look at the merits of the case the estate wishes to advance against the insurer. Obviously enough, it is not in the interests of the estate to bring litigation which has poor prospects of success. I therefore turn to consider the merits of the proposed action, but record that I have not heard the insurer in relation to the construction points, nor indeed have I heard any contradicter of the estate’s position.Statement of Facts The amended statement of facts filed pursuant to s 96 of the Trusts Act shows that the deceased was born in 1941 and died on 27 March 2019. He was married in the 1960s and had one child, Guy Murray, born 4 April 1968. The deceased and his wife were divorced and she took Guy to the United Kingdom and never returned to Australia. It seems that Guy also resided in the UK and did not visit the deceased man until shortly prior to the events connected with his personal injuries claim and the deceased man’s death. In January 2019 Guy visited his father. At that stage his father was living alone and concerns had been raised about his health. The material on the application shows that the deceased man was apparently suffering from some sort of dementia or other illness which was affecting his mind. On 7 March 2019 the deceased man’s house burnt down. The police investigated and concluded that the fire was not suspicious and that it occurred as a result of the deceased man spilling petrol in the garage and then accidentally igniting it. Mr Murray died 20 days later. Guy Murray rescued his father from the fire and has given a notice of claim under the Personal Injuries Proceedings Act 2002 (Qld). The deceased man’s insurance policy provided:“Legal LiabilityThe most we will pay for all claims from one incident for legal liability covered by this policy is $20 million, including all associated legal costs we have agreed to pay following your claim.We cover your legal liability to pay compensation for death or bodily injury to other people, or loss or damage to their property, resulting from an incident which happens during the period of insurance:●in connection with you owning or living in the building;and●at the insured address.What we do not coverWe do not cover legal liability caused by or arising from:…Death or injuryDeath or injury of:● you;● a child … under 18 years who is your child …;● your pets;● anyone who usually lives at the insured address.…” (my underlining) The insurer has declined to indemnify the estate in relation to Guy Murray’s personal injuries claim because it claimed that he was ordinarily resident at his father’s address at the time of the incident. The material shows that Guy Murray is a citizen of the United Kingdom; travels on a UK passport and did not live in Australia between 1972 and January 2019. The statement of facts is to the effect that Guy Murray’s intention was to stay in Australia only long enough to attend to arrangements for his father’s ongoing care and then return either to the United Kingdom, or South Africa, where he anticipated finding work, in April 2019. He had made no application for Australian residence.Ordinarily Resident

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Re Murray (deceased) [2020] QSC 155

Most Recent Citation

Buckingham v Buckingham [2020] QSC 230

Cases citing this decision · 1 of 1 shown

Buckingham v Buckingham
[2020] QSC 230 Para 19

…vant considerations.[16] Inherent in the latter consideration is the potential cost impact of litigation upon the estate. [15] Re Murray (deceased) [2020] QSC 155, [7]. [16] Coore v Coore [2013] QSC 196, [22].…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Williams v Is Industry Fund Pty Ltd
[2018] FCAFC 219 Para 20

…tion Tribunal that the son did not live with his father (and therefore that his father was not a beneficiary under the Superannuation Policy). [7][2018] FCAFC 219.…
Allianz Australia Insurance Ltd v Inglis
[2016] WASCA 25 Para 1

…al dealt with the matter only briefly and obiter but the decision certainly does not indicate any different approach from that outlined above. [8][2016] WASCA 25, [42].…
Ban v The Public Trustee of Queensland
[2015] QCA 18 Para 5

…ueensland [1] recently re‑examined these provisions. There is no bar to my giving advice, rather than determining questions between adversaries. [1][2015] QCA 18, [50]ff.…
Dunning v Dunning
[2011] NSWSC 1278 Para 19

…meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. …” [5][2011] NSWSC 1278. [6][1946] SCR 209, 224.…
Cardiacos v Cooper Consulting and Constructions Services (Aust) Pty Ltd
[2009] NSWSC 938 Para 17

…estion whether residence in a particular place has been maintained.’” (my underlining) [4][2009] NSWSC 938.…
Corbett v Nguyen
[2008] NSWSC 1265 Para 17

…ng (1986) 9 FCR 518 at 524-525; Re Taylor; ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 at 198; Corbett v Nguyen [2008] NSWSC 1265 at [21]-[22]). 28.Therefore, it does not follow that because from 1 October 2008 the plaintiff resided in the Phillip Street, Enmore property and was not physically present in t…
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand
[2008] HCA 42 Para 6

…t is, I am determining what is justifiable action in the interests of the deceased’s estate and not determining rights of adversarial parties. [2](2008) 237 CLR 66 cited at [55] of Ban (above).…
Logue v Hansen Technologies Ltd
[2003] FCA 81 Para 17

…ronulla property that he ceased to reside at the Cronulla property. As Weinberg J said in Logue v Hansen Technologies Ltd [2003] FCA 81 … [26], after reviewing a number of authorities: ‘What these cases, and others like them seem to establish is that the test for ordinary residence depends to a significant degre…
Re Taylor, K.D
[1992] FCA 439 Para 17

…re than one place ( Re Vassis; ex parte Leung (1986) 9 FCR 518 at 524-525; Re Taylor; ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 at 198; Corbett v Nguyen [2008] NSWSC 1265 at [21]-[22]). 28.Therefore, it does not follow that because from 1 October 2008 the plaintiff resided in the Phillip Street, Enmore p…
Re Lenske; Ex parte Lenske
[1986] FCA 21 Para 17

…ell settled that a person can be both resident and ordinarily resident in more than one place ( Re Vassis; ex parte Leung (1986) 9 FCR 518 at 524-525; Re Taylor; ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194 at 198; Corbett v Nguyen [2008] NSWSC 1265 at [21]-[22]). 28.Therefore, it does not follow that beca…
Hafza v Director-General of Social Security
[1985] FCA 201 Para 17

…normally resides in the jurisdiction, and does so for a settled purpose. ’ 29.… In Hafza v D-G of Social Security (1985) 6 FCR 444, Wilcox J said at 449-450: ‘As a general concept residence includes two elements: physical presence in a particular place and the intention to treat that place as home ; at least for th…
[1928] AC 234
[1928] AC 234 Para 17

…ther at which they also have a home (eg Levene v Inland Revenue Commissioners; and Inland Revenue Commissioners v Lysaght [1928] AC 234 and the cases there cited). It is well settled that a person can be both resident and ordinarily resident in more than one place ( Re Vassis; ex parte Leung (1986) 9 FCR 518 at…
[1928] AC 217
[1928] AC 217 Para 17

…settled or usual abode, to live, in or at a particular place’ (Oxford English Dictionary; Levene v Inland Revenue Commissioners [1928] AC 217 at 222). There are many examples of a person having been found to be resident at a particular place although he or she spent the majority of his or her time away from that…
[1946] SCR 209
[1946] SCR 209 Para 19

…in the contexts of different matters, but also in different aspects of the same matter. …” [5][2011] NSWSC 1278. [6][1946] SCR 209, 224.…

Legislation cited in this decision · 2

Personal Injuries Proceedings Act 2002 (Qld)
1 mention (from Para 10)
Trusts Act 1973 (Qld)
1 mention (from Para 1)

CITATION:	Re Murray (deceased) [2020] QSC 155
PARTIES:	ARTHUR LESLEY DOUGLAS CRUMMER AS THE EXECUTOR OF THE ESTATE OF RAYMOND JOHN MURRAY (DECEASED) (applicant) v AAI LIMITED ABN 48 005 297 807 TRADING AS AAMI (respondent)
FILE NO:	BS 3720 of 2020
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2020, 15 April 2020, and written submissions received 20 April 2020
JUDGE:	Dalton J
ORDER:	Advice given pursuant to s 96 *Trusts Act 1973* (Qld)
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – APPLICATIONS TO COURT FOR ADVICE AND AUTHORITY – PETITION OR SUMMONS FOR ADVICE – GENERALLY – where the executor of a will seeks the Court’s advice about suing insurer – where all parties interested in the estate served – where insurer not served – whether court should give advice rather than determine questions between adversaries INSURANCE – THE POLICY – CONDITIONS, WARRANTIES AND EXCEPTIONS – EXCLUSION CLAUSES – anyone who usually lives at the insured address – ordinarily resident – person who normally lives with you –where the deceased’s son visited the deceased to make arrangements for his ongoing care – where the deceased died following a fire at his address – where the deceased’s son brought a claim for personal injuries arising out of the fire – whether the executor is justified in insisting on indemnity from the insurer under the house and contents policy of the deceased – whether the deceased’s son was ordinarily resident at his father’s address at the time of the incident
Trusts Act 1973 (Qld) Allianz Australia Insurance Ltd v Inglis [2016] WASCA 25 Ban v The Public Trustee of Queensland [2015] QCA 18 Cardiacos v Cooper Consulting and Construction Services (Aust) Pty Ltd [2009] NSWSC 938 Clarke v Clarke; Insurance Office of Australia Ltd (1964) VR 773 Dunning v Dunning [2011] NSWSC 1278 Macedonian Orthodox Community Church St Petka Inc (2008) 237 CLR 66 Thompson v Minister of Natural Revenue [1946] SCR 209 Williams v IS Industry Fund Pty Ltd [2018] FCAFC 219
COUNSEL:	JW Lee for the applicant K Cummins, solicitor, for Mr G Murray D Skennar QC for Dr C Bain AP Colman, solicitor, for Mr J Bain and Mr A Bain
SOLICITORS:	Lynch Law for the applicant Murphy Schmidt for Mr G Murray Pippa Colman & Associates for Mr J Bain and Mr A Bain