Re Stooks (dec'd)

Case [2024] QSC 278

SUPREME COURT OF QUEENSLAND

CITATION:

Re Stooks (dec’d) [2024] QSC 278

PARTIES:

IN THE WILL OF DEREK HENRY STOOKS

(deceased)

ANDREW PETER JOHNSTONE

(applicant)

FILE NO:

5985 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDER:

The court directs the registrar to reseal the letters of administration of the High Court of Justice England and Wales, Principal Registry of the Family Division dated 15 January 2024 in the estate of Derek Henry Stooks, deceased.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – where the deceased was a resident of the United Kingdom – where the deceased was possessed of property in Australia – where the High Court of Justice England and Wales made limited grant of letters of administration to the sole beneficiary’s lawful attorney – where the administrator is resident in the United Kingdom – where the attorney for the administrator applied to reseal the letters of administration in Queensland – where the Registrar lacks jurisdiction to reseal a limited foreign grant unless the Court otherwise orders

British Probates Act 1898 (Qld), s 3, s 4

Succession Act 1981 (Qld), s 6

Uniform Civil Procedure Rules 1999 (Qld), r 489, r 615, r 616, r 619

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22, cited
In the Estate of Rogowski (Deceased) [2007] SASC 161, considered
The Estate of Nattrass (Unreported, Supreme Court of New South Wales, No PD 114522 of 1992, Powell J, 29 October 1992), cited
Pedersen v Young (1964) 110 CLR 162; [1964] HCA 28, cited
R v A2 (2019) 269 CLR 507; [2019] HCA 35, followed
Re Estate of Tamburin (2014) 119 SASR 143; [2014] SASC 58, cited

Shrimpton v The Commonwealth (1945) 69 CLR 613; [1945] HCA 4, cited

SOLICITORS:

Ascendia Lawyers for the applicant

  1. This is an application by Andrew Peter Johnstone, the attorney of Timothy David Stooks (Timothy Stooks), to reseal the grant of letters of administration given by the High Court of Justice England and Wales of the will of Derek Henry Stooks (Derek Stooks), deceased.

    Background

  2. Derek Stooks was a resident of Great Missenden in the United Kingdom.

  3. On 9 July 1981, Derek Stooks made his last will.

  4. By the will, Derek Stooks:

    (a)appointed Lloyds Bank Limited the executor and trustee of his estate;

    (b)gifted the whole of his estate to his wife Myra Stooks; and

    (c)provided that in the event Myra Stooks did not survive him by 30 days, the estate was to be divided equally amongst his surviving children.

  5. On 12 January 2023, Derek Stooks died.  His wife Myra Stooks survived him by more than 30 days.

  6. Lloyds Bank Limited renounced administration of Derek’s Stooks’s estate.  Myra Stooks appointed…

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Details
AGLC
Re Stooks (dec'd) [2024] QSC 278
Case
[2024] QSC 278
Decision Date

CaseChat Overview and Summary

In the matter of Re Stooks (dec'd), the applicant, Andrew Peter Johnstone, sought to reseal the grant of letters of administration given by the High Court of Justice England and Wales in relation to the will of the deceased, Derek Henry Stooks. The primary legal issue was whether the Queensland Supreme Court could reseal a limited grant of letters of administration issued by an English court, given that Rule 619 of the Uniform Civil Procedure Rules 1999 explicitly prohibits the registrar from resealing such limited grants unless the court otherwise orders. The case also involved determining the appropriate circumstances under which the court may exercise its discretion to reseal foreign grants under the British Probates Act 1898.

The court first addressed the procedural aspect of Rule 489 of the UCPR, which allows for applications to be decided without an oral hearing, provided certain conditions are met. Given that the applicant proposed the matter be decided without an oral hearing and no respondent objected, the court found it appropriate to proceed without a hearing. The court then turned to the substantive issue of whether the limited grant should be resealed, considering the provisions of the British Probates Act 1898 and the relevant UCPR rules. Section 4 of the British Probates Act grants the Supreme Court discretion to reseal foreign grants, subject to certain conditions, such as the payment of relevant duties and security for creditors. Since there were no outstanding duties or creditors, the court was free to exercise its discretion. Additionally, the UCPR rules specifically address the resealing of foreign grants, with Rule 619 prohibiting the resealing of limited grants unless the court orders otherwise. The court concluded that in this case, the limited grant should be resealed, and directed the registrar to do so.

The court's decision was grounded in the statutory framework provided by the British Probates Act and the procedural rules set out in the UCPR. The court exercised its discretion under Section 4 of the British Probates Act to reseal the limited grant of letters of administration issued by the High Court of Justice England and Wales, directing the registrar to carry out the resealing.

Orders

Orders of the court

The court directs the registrar to reseal the letters of administration of the High Court of Justice England and Wales, Principal Registry of the Family Division dated 15 January 2024 in the estate of Derek Henry Stooks, deceased.

Background

Background to the litigation

This is an application by Andrew Peter Johnstone, the attorney of Timothy David Stooks (Timothy Stooks), to reseal the grant of letters of administration given by the High Court of Justice England and Wales of the will of Derek Henry Stooks (Derek Stooks), deceased. Background Derek Stooks was a resident of Great Missenden in the United Kingdom. On 9 July 1981, Derek Stooks made his last will. By the will, Derek Stooks:(a)appointed Lloyds Bank Limited the executor and trustee of his estate;(b)gifted the whole of his estate to his wife Myra Stooks; and(c)provided that in the event Myra Stooks did not survive him by 30 days, the estate was to be divided equally amongst his surviving children. On 12 January 2023, Derek Stooks died. His wife Myra Stooks survived him by more than 30 days. Lloyds Bank Limited renounced administration of Derek’s Stooks’s estate. Myra Stooks appointed Timothy Stooks to apply for letters of administration of the estate. On 15 January 2024, the High Court of Justice England and Wales gave a limited grant of letters of administration to Timothy Stooks in these terms:“The Administration of Derek Henry Stooks’s estate is granted by this court to the following administratorTimothy David Stooks of 53 Cliffe Way Warwick CV34 5JG United Kingdom The lawful attorney of Myra Stooks for their use and benefit limited until further representation be granted.” (emphasis added)[1][1]Such a grant to an attorney is a limited grant; In the Estate of Rogowski (Deceased) [2007] SASC 161 at [18]. At the time of his death, Derek Stooks held property in Queensland, namely company shares. Timothy Stooks, as the lawful attorney of Myra Stooks, appointed the applicant as his attorney to make application for the resealing in Queensland of the grant of letters of administration made by the High Court of Justice England and Wales. The applicant applied to the registrar of this court for the resealing of the letters of administration but was requisitioned on the basis that:(a)the grant is a limited grant; and(b)the registrar cannot reseal a limited grant.[2][2]Uniform Civil Procedure Rules 1999, r 619. The applicant seeks to have the application dealt with on the papers without oral hearing.Determination without oral hearing Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides: “489 Proposal for decision without oral hearing (1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing. (2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless— (a) under rule 491, the court considers it inappropriate to do so; or (b) under rule 494, the respondent requires an oral hearing; or (c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or (d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides: “489 Proposal for decision without oral hearing (1) A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing. (2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless— (a) under rule 491, the court considers it inappropriate to do so; or (b) under rule 494, the respondent requires an oral hearing; or (c) under rule 495, the applicant abandons the request for a decision without an oral hearing; or (d) the Chief Justice or Chief Judge suspends the operation of this rule by direction.” The structure of r 489 is that:(a)jurisdiction to proceed without an oral hearing is granted;(b)the jurisdiction is enlivened by a proposal by an applicant; and(c)the proposal must be accepted in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d). None of the circumstances identified in rr 489(2)(c) and (d) arise. There is no respondent so r 489(2)(b) is of no relevance. The sole question is whether the court considers it inappropriate to determine the matter without oral hearing. There are no parties interested in the application other than the applicant, and through him, Timothy Stooks and Myra Stooks. The facts are clear and the question for the exercise of discretion clearly identified. It is appropriate to proceed without oral hearing.Should the limited grant be resealed?The statutory structure The British Probates Act 1898 has as its preamble:“An Act to provide for the recognition of probates and letters of administration granted in other parts of Her Majesty’s dominions.”[3][3]At the time of enactment of the British Probates Act, Queen Victoria was on the throne, thus explaining the reference in the preamble to “Her Majesty’s dominions”. Section 3 provides as follows:“3 Application of Act by regulation When the Governor in Council is satisfied that the legislature of any part of Her Majesty’s dominions has made adequate provision for the recognition in that part of probates and letters of administration granted by the Supreme Court, the Governor in Council may declare by regulation that this Act shall, subject to any stated changes, apply to that part of Her Majesty’s dominions.” The Governor in Council, by the British Probates Regulation 2018, has declared that the British Probates Act applies to “the United Kingdom of Great Britain and Northern Ireland”. Section 4 of the British Probates Act provides:“4 Sealing in Queensland of British probates and letters of administration (1) When a court of probate in a part of Her Majesty’s dominions to which this Act applies has granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, on being produced to, and a copy thereof deposited with, the Supreme Court, be sealed with the seal of that court, and thereupon shall be of the like force and effect and have the same operation in Queensland as if granted by that court. (2) Provided that no probate or letters of administration shall be sealed under this section until there has been filed in the Supreme Court a certificate under the hand of the Commissioner of State Revenue appointed under the Taxation Administration Act 2001 to the effect that adequate security has been given for payment of all probate and succession duty in respect of so much (if any) of the estate as is liable to duty in Queensland. (3) The Supreme Court may, if it thinks fit, upon the application of any creditor, require, before sealing, that adequate security be given for the payment of debts due from the estate to creditors residing in Queensland, and also, if it thinks fit, upon the application of any beneficiary or next of kin, require that adequate security be given for the protection of the interests of such beneficiary or next of kin. (4) For the purposes of this section a duplicate of any probate or letters of administration sealed with the seal of the court granting the same, or a copy thereof certified as correct by or under the authority of the court granting the same, shall have the same effect as the original.” (emphasis added)

Ratio Decidendi

Legal Principle Established

Section 4 of the British Probates Act provides:“4 Sealing in Queensland of British probates and letters of administration (1) When a court of probate in a part of Her Majesty’s dominions to which this Act applies has granted probate or letters of administration in respect of the estate of a deceased person, the probate or letters so granted may, on being produced to, and a copy thereof deposited with, the Supreme Court, be sealed with the seal of that court, and thereupon shall be of the like force and effect and have the same operation in Queensland as if granted by that court. (2) Provided that no probate or letters of administration shall be sealed under this section until there has been filed in the Supreme Court a certificate under the hand of the Commissioner of State Revenue appointed under the Taxation Administration Act 2001 to the effect that adequate security has been given for payment of all probate and succession duty in respect of so much (if any) of the estate as is liable to duty in Queensland. (3) The Supreme Court may, if it thinks fit, upon the application of any creditor, require, before sealing, that adequate security be given for the payment of debts due from the estate to creditors residing in Queensland, and also, if it thinks fit, upon the application of any beneficiary or next of kin, require that adequate security be given for the protection of the interests of such beneficiary or next of kin. (4) For the purposes of this section a duplicate of any probate or letters of administration sealed with the seal of the court granting the same, or a copy thereof certified as correct by or under the authority of the court granting the same, shall have the same effect as the original.” (emphasis added) It can be seen that the structure of s 4 is:(a)there is a discretion granted to this court (the foreign probate may be resealed);[4] but(b)subject to the restrictions prescribed by ss 4(2) and 4(3).[4]The Estate of Nattrass (Unreported, Supreme Court of New South Wales, No PD 114522 of 1992, Powell J, 29 October 1992). There are no probate and succession duties payable in Queensland so s 4(2) can be ignored. There is no suggestion of the existence of any creditors, so s 4(3) has no relevance. Part 5 of Chapter 15 of the UCPR concerns “Resealing grants under British Probates Act 1898”. Rules 615, 616 and 619 of the UCPR provide as follows:“615 Application of part This part applies to an application for the resealing of a grant of probate or letters of administration under the British Probates Act 1898 (foreign grant). 616 Who may apply for reseal of foreign grant An application for the resealing of a foreign grant may be made by the executor or administrator, or a person lawfully authorised for the purpose by the executor or administrator.…619 Special, limited and temporary grants The registrar must not reseal a special, limited or temporary foreign grant, unless the court otherwise orders.” Rules 617, 618 and 620 are machinery provisions and bear no relevance to the current issues.