Robert John West & Ors v Betty June Blackgrove

[2013] HCASL 38

ROBERT JOHN WEST & ORS

v

BETTY JUNE BLACKGROVE & ANOR

[2013] HCASL 38
B74/2012

1. The first applicant and the first and second respondents are the children of Doris Jean West (deceased).  The second applicant is the wife of the first applicant.  The deceased died on 1 May 2009 leaving a will appointing the first applicant her sole executor.  By her will, the deceased left $100,000 to each of her children and the residue of her estate to the first applicant.

2. In her will, the deceased referred to a property at Thornlands which the will described as having been purchased jointly with the first applicant to help the deceased in her final years.  The deceased had contributed more than half of the amount spent purchasing the Thornlands property, but it was registered in the name of the second applicant.

3. In the Supreme Court of Queensland the respondents sought (among other things) a declaration that the second applicant held the Thornlands property on trust for the estate of the deceased and an order that the property be sold.  At trial this was not disputed.  The primary judge (McMurdo J) held that the estate was entitled to a share in the Thornlands property.  The applicants alleged that the respondents had held up the sale of the Thornlands property and that, in consequence, both they and the estate had suffered loss.

4. The primary judge found that no act of the respondents had prevented sale of the Thornlands property before the time it was sold.

5. On appeal to the Court of Appeal (Holmes and Muir JJA, Daubney J), that Court held that the respondents had not unlawfully impeded the sale of the Thornlands property and that, in any event, no loss was shown to have been suffered by the applicants.

6. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

7. The applicants seek special leave to appeal against the orders made by the Court of Appeal and seek to raise for the first time some arguments not agitated in the Courts below.  Even if it is open to the applicants to make those new arguments, we are not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
10 April 2013 S.M. Crennan