Roma v Ketchup - [2009] QSC 442

SUPREME COURT OF QUEENSLAND

CITATION:

Roma v Ketchup [2009] QSC 442

PARTIES:

ROMA, Vivienne Carol
(first applicant)
BARRETT, Lindsay Jack
(second applicant)
v
KETCHUP, Valmay
and
ROMA, Cyril Michael Jnr
(first respondents)
MORLEYS FUNERALS

(second respondent)

FILE NO/S:

SC No 13966 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 and 17 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

10 and 17 December 2009

JUDGE:

Margaret Wilson J

ORDER:

1.   that the first respondents and the second respondent be permanently restrained from burying the body of Cyril Michael Roma Snr;

2.   that the first respondents and the second respondent release the body of Cyril Michael Roma Snr to Lindsay Jack Barrett forthwith;

3.   subject to any formal requirements of the Registrar, letters of administration on intestacy be granted to Lindsay Jack Barrett, the grant of administration being limited to the collection and preservation of the assets of the estate, with power to expend moneys from the estate on reasonable funeral expenses.

CATCHWORDS:

SUCCESSION – EXECUTORS AND ADMINISTRATORS – RIGHTS, POWERS AND DUTIES – BURIAL, AND ERECTION OF TOMBSTONES – where deceased died intestate – where his sister and his eldest son, the applicants, sought an order restraining the release of his body to the coroner – where it was ascertained that the coroner had made an order that the body be released for burial – where it had already been released to funeral directors, the third respondent – where applicants seek an injunction restraining respondents from burying deceased, an order that his body be released to the applicants, and an order they be appointed as administrators of the estate – whether injunction and orders should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 610

COUNSEL:

The applicants appeared on their own behalf, N Roma assisting.

MARGARET WILSON J: Cyril Michael Roma Snr died on 23 November 2009. He had not made a Will. On Tuesday, 8 December 2009, his sister, Vivienne Roma, and his eldest son, Lindsay Barrett, appeared before me without the benefit of legal representation seeking an order restraining the release of his body by the Coroner.

It was ascertained that the Coroner had made an order on 3 December 2009 that the body be released for burial and it had in fact already been released to funeral directors in Townsville, Morleys Funerals Pty Ltd. The application was adjourned until today, 10 December, to enable the applicants to obtain legal advice if possible.

When the matter came on today, they had had the benefit of advice in the preparation of amended documents and further affidavits and the preparation of submissions. Mr Nicholas Roma, the son of the applicant Vivienne Roma, represented them in Court. He did so ably, although I record that he is not a legal practitioner.

By the amended originating application now brought against Valmay Ketchup, a former de facto partner of the deceased, and Cyril Michael Roma Jnr, a son of the deceased and Ms Ketchup, as…

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 Roma v Ketchup

Details

AGLC: Roma v Ketchup [2009] QSC 442
Case: [2009] QSC 442
Decision Date: 10 December 2009

CaseChat Overview and Summary

The applicants, Roma and Barrett, sought relief in the Supreme Court of Queensland in relation to the estate of Cyril Michael Roma Snr, who died intestate. Roma is the deceased's sister, and Barrett is his eldest son. The first respondents were the deceased's wife and daughter, who had obtained an order from the coroner for the release of the deceased's body for burial. The second respondent was the funeral director to whom the body had already been released. The applicants sought an injunction to restrain the respondents from burying the deceased, an order for the release of the body to them, and an order that they be appointed as administrators of the estate.

The legal issues before the court included whether the applicants had standing to bring the action, and if so, whether the injunction and orders sought should be granted. The court held that the applicants had standing as relatives of the deceased with a legitimate interest in the proper administration of the estate. The court also found that the respondents had acted without due regard for the applicants' interests and that the injunction and orders should be granted. The court held that the respondents had acted in a manner that was inconsistent with their duties as executors and administrators of the estate.

The court granted the orders sought by the applicants, restraining the respondents from burying the body of the deceased, ordering the release of the body to the applicants, and granting letters of administration to Barrett. The court limited the grant of administration to the collection and preservation of the assets of the estate, with power to expend moneys from the estate on reasonable funeral expenses. The court held that the applicants had demonstrated a sufficient interest in the proper administration of the estate and that the orders were necessary to ensure that the estate was administered in accordance with the wishes of the deceased, as far as they could be ascertained.

Orders

Orders of the court

1. that the first respondents and the second

respondent be permanently restrained from

burying the body of Cyril Michael Roma Snr;

2. that the first respondents and the second

respondent release the body of Cyril Michael

Roma Snr to Lindsay Jack Barrett forthwith;

3. subject to any formal requirements of the

Registrar, letters of administration on intestacy be

granted to Lindsay Jack Barrett, the grant of

administration being limited to the collection and

preservation of the assets of the estate, with power

to expend moneys from the estate on reasonable

funeral expenses.

Background

Background to the litigation

Full text does not contain this section.

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.

CITATION:	Roma v Ketchup [2009] QSC 442
PARTIES:	ROMA, Vivienne Carol (first applicant) BARRETT, Lindsay Jack (second applicant) v KETCHUP, Valmay and ROMA, Cyril Michael Jnr (first respondents) MORLEYS FUNERALS (second respondent)
FILE NO/S:	SC No 13966 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 and 17 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	10 and 17 December 2009
JUDGE:	Margaret Wilson J
ORDER:	1. that the first respondents and the second respondent be permanently restrained from burying the body of Cyril Michael Roma Snr; 2. that the first respondents and the second respondent release the body of Cyril Michael Roma Snr to Lindsay Jack Barrett forthwith; 3. subject to any formal requirements of the Registrar, letters of administration on intestacy be granted to Lindsay Jack Barrett, the grant of administration being limited to the collection and preservation of the assets of the estate, with power to expend moneys from the estate on reasonable funeral expenses.
CATCHWORDS:	SUCCESSION – EXECUTORS AND ADMINISTRATORS – RIGHTS, POWERS AND DUTIES – BURIAL, AND ERECTION OF TOMBSTONES – where deceased died intestate – where his sister and his eldest son, the applicants, sought an order restraining the release of his body to the coroner – where it was ascertained that the coroner had made an order that the body be released for burial – where it had already been released to funeral directors, the third respondent – where applicants seek an injunction restraining respondents from burying deceased, an order that his body be released to the applicants, and an order they be appointed as administrators of the estate – whether injunction and orders should be granted Uniform Civil Procedure Rules 1999 (Qld), r 610
COUNSEL:	The applicants appeared on their own behalf, N Roma assisting.