Roberts v Davoren

[2014] QCA 197

[2014] QCA 197

COURT OF APPEAL

GOTTERSON JA

Appeal No 7094 of 2014
DC No 1230 of 2014

SAMANTHA JANE ROBERTS  Applicant

v

STEPHEN JOHN DAVOREN
KENT WILLIAM DALZIEL  Respondents

BRISBANE

TUESDAY, 19 AUGUST 2014

JUDGMENT

GOTTERSON JA:  On the 1st of August 2014, Samantha Jane Roberts filed a notice of appeal in this Court.  She is the daughter of Stella Roberts, who died on the 7th of July 2013.  The estate is modest, the principal asset being a house at Crestmead which is mortgaged.  Under the will, Samantha is to hold the house on trust for herself and as trustee for her disabled daughter, Shannon, until the latter turns 21.  Shannon is now seven years old.  The applicant, Samantha Roberts, filed an originating application for further provision from the estate and the District Court.  She seeks an order that she get the house.  On the 24th of June 2014, she applied for summary judgment.  This step was prompted by receipt by her of a notice to leave from the executor’s solicitors in preparation for a sale to pay out the mortgage.

The application was heard on the 4th of July 2014. Understandably, summary judgment was refused. Directions were made for further conduct of the proceeding culminating in a mediation. The applicant would require leave under s 118(3) of the District Court of Queensland Act 1967 to appeal from orders made on the 4th of July. She filed an application for such leave on the 4th of August 2014. In the same application, she requested an order staying the orders made on the 4th of July. Why the stay order is sought is explained by a fundamental misunderstanding on the applicant’s part. Her notice of appeal describes the appeal as against an order made that day that the Crestmead property be sold and that the proceeds be split between her on her own account and her as trustee for Shannon.

No such order was made on the 4th of July. The appeal for which the applicant seeks leave to appeal would be incompetent. To grant leave to appeal would be futile. Pursuant to s 118(7) of the District Court Act, I would refuse leave to file the notice of appeal lodged with the Court on the 1st of August 2014.  The refusal of leave would make it unnecessary to make an order on the application filed on the 12th of August 2014 to strike out the notice of appeal.  That application ought therefore be formally refused.  Also, since the leave is to be refused, there is no appeal and because there is no order for sale that can be stayed, the application for a stay must be refused.

Before making formal orders, I would make two observations.  So far as any deferral of sale is concerned, the Court with jurisdiction to so order would be the District Court in which the application for further provision is pending provided a proper case for a stay pending determination of the application is made out.  The second observation is that the recommendation of the learned judge at first instance should be heeded and a mediation or mediated outcome sought.  The estate is small.  The mortgage repayment date is looming and the legal costs are mounting.

The orders of the Court on the application filed on the 4th of August 2014 are:

1.Application for leave to appeal refused.

2.Application for a stay refused.

3.Costs of the respondent litigation guardian of the application, assessed on an indemnity basis, be paid by the applicant, Samantha Jane Roberts.

The order of the court on the application filed on the 12th of August 2014 is application refused.