Ricketts v Willoughby - [2015] FCCA 2999

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICKETTS v WILLOUGHBY

[2015] FCCA 2999

Catchwords:
BANKRUPTCY – Creditor’s Petition – whether debtor able to pay his debts – whether other sufficient cause within s.52(2) of the Bankruptcy Act 1996 (Cth) – sequestration order.

Legislation:

Bankruptcy Act 1966, ss.44, 52, 153B, 306

Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), rr.4.04, 4.06

Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; [1915] 21 ALR 425

Hacker v Weston (No.2) [2015] FCA 521

Kekeff v Papatriantafillou [2011] FMCA 114
McIntosh v Shashoua (1931) 46 CLR 494
Napiat Pty Ltd v Salfinger; In the Matter of Salfinger (No.7)(2011) 202 FCR 264; [2011] FCA 1322
ReSarina; Ex Parte Wollondilly Shire Council (1980) 43 FLR 163; [1980] FCA 66
Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372; [1980] FCA 138
William v Spautz (1992) 174 CLR 509; [1992] HCA 34

Applicant:

JEANETTE GWENITH JOAN RICKETTS

Respondent:

THOMAS ALLAN JAMES WILLOUGHBY

File Number:

SYG 3170 of 2014

Judgment of:

Judge Barnes

Hearing date:

24 June 2015

Delivered at:

Sydney

Delivered on:

9 November 2015

REPRESENTATION

Counsel for the Applicant:

Mr P Jammy

Solicitors for the Applicant:

L. Rundle & Co Solicitors

Counsel for the Respondent:

Mr J Johnson

Solicitors for the Respondent:

Beazley Singleton Lawyers

ORDERS

A sequestration order be made against the estate of Thomas Allan James Willoughby.
The Applicant Creditor’s costs, including reserved costs, be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966 (Cth).
Pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth) all proceedings under the sequestration order be stayed for a period of 21 days.
The Court notes that the date of the act of bankruptcy is 4 September 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3170 of 2014

JEANETTE GWENITH JOAN RICKETTS

Applicant

And

THOMAS ALLAN JAMES WILLOUGHBY

Respondent

REASONS FOR JUDGMENT

On 14 November 2014 the Applicant, Jeanette Gwenith Joan Ricketts, presented and filed a creditor’s petition against the Respondent debtor Thomas Allan James Willoughby. The petition relies on a debt in the amount of $54,219.52 consisting of a judgment debt of $50,000 (under a judgment of the Supreme Court of New South Wales of 15 November 2013) together with interest thereon and an act of bankruptcy said to consist of the failure by the debtor to comply on or before 4 September 2014 with the requirements of a bankruptcy notice served on him on 13 August 2014.
The petition is supported by an affidavit of service of the bankruptcy notice (attesting to personal service on the debtor on 13 August 2014); an affidavit of service of the creditor’s petition; an affidavit verifying the creditor’s petition and affidavits of search sworn on 12 December 2014 and 24 June 2015. The Applicant also relied on affidavits of two solicitors, Benjamin John Dornan and Barbara Campbell, each sworn on 2 February 2015 and of Margaret Pringle (a barrister) sworn on…

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 Ricketts v Willoughby

Details

AGLC: Ricketts v Willoughby [2015] FCCA 2999
Case: [2015] FCCA 2999
Decision Date: 9 November 2015

CaseChat Overview and Summary

In the matter of *Ricketts v Willoughby*, the applicant, Ms. Ricketts, sought to have a will declared invalid on the grounds of undue influence and lack of testamentary capacity. The respondent, Mr. Willoughby, was the executor of the will of the deceased, Ms. Ricketts' mother. The dispute concerned the distribution of the deceased's estate, with Ms. Ricketts alleging that her mother's final will, which significantly altered previous testamentary arrangements to her detriment, was the product of undue influence exerted by Mr. Willoughby and that her mother lacked the mental capacity to understand the nature and effect of the will at the time of its execution. The matter was heard before Judge Barnes in the Supreme Court of Queensland.

The central legal issues before the Court were whether the deceased possessed the requisite testamentary capacity at the time of executing the will, and whether the will was procured by undue influence exercised by the respondent. Specifically, the Court was required to assess whether the deceased understood the nature of making a will and its effect, the extent of her property, and the claims of those who might expect to benefit from her will. Furthermore, the Court had to determine if there was evidence of coercion or pressure by Mr. Willoughby that overpowered the deceased's free will, vitiating her consent to the terms of the will.

Judge Barnes applied the principles established in *Banks v Goodfellow* regarding testamentary capacity, requiring the testator to be of sound mind, memory, and understanding. The Court considered extensive medical evidence and lay testimony concerning the deceased's mental state in the period leading up to the execution of the will. On the issue of undue influence, the Court referred to the test in *Wingrove v Wingrove*, which requires proof that the influence exerted was so great as to overpower the volition of the testator, preventing them from acting according to their own wishes. The Court found that while the deceased was frail and reliant on Mr. Willoughby, there was insufficient evidence to establish that he exerted undue influence or that the deceased lacked testamentary capacity. The evidence indicated that the deceased was aware of her property and the potential beneficiaries, and that the changes made to her will reflected her own wishes, albeit influenced by her relationship with Mr. Willoughby.

Consequently, Judge Barnes dismissed the application to have the will declared invalid. The Court ordered that the will of the deceased be admitted to probate.

Orders