Romano v Ladewig - [2003] QCA 530

SUPREME COURT OF QUEENSLAND

CITATION:

Romano & Anor v Ladewig & Anor [2003] QCA 530

PARTIES:

CATERINA ROMANO AND ROCKY NIMJIS HOARAN (AS BENEFICIARIES UNDER THE WILL OF MARJORIE OAKEY POCOCK)
(applicants/appellants)
v
CLEM LADEWIG AND IAN LADEWIG (THE NEXT OF KIN OF THE DECEASED ENTITLED TO SHARE IN THE ESTATE ON AN INTESTACY)

(respondents/respondents)

FILE NO/S:

Appeal No 6179 of 2003

SC No 5011 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 November 2003

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2003

JUDGES:

de Jersey CJ, McPherson JA and McMurdo J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – WHAT WORDS WILL PASS PARTICULAR PROPERTY – REAL ESTATE – where testatrix bequeathed net sale price of “vacant allotment of land on the lefthand side of my house property” – where testatrix originally owned five contiguous lots, including lots on both sides of house – where testatrix sold lot to left of house (from perspective of observer on street) prior to making will – where lots to right of house (from perspective of observer on street) contained garden and driveway associated with house – whether testatrix speaking from perspective of observer on street or from perspective of observer in house

Succession Act 1981 (Qld), s 28

Hicks v McLure (1922) 64 SCR 361, considered
McBride v Hudson (1962) 107 CLR 604, applied
Pohlner v Pfeiffer (1964) 112 CLR 52, considered

Thomas v Bergin [1986] 2 Qd R 478, applied

COUNSEL:

J Griffin QC, with T Somers, for the appellants

A Morris QC, with P Howard, for the respondents

SOLICITORS:

Deacon & Milani for the appellants

Martinez Lawyers for the respondents

de JERSEY CJ: The deceased died on 9 March 2003 leaving a will dated 20 November 1987. At the time of her death, she owned a house property situated at Palmer Street, Windsor. The house property covered four contiguous lots, numbered six, seven, eight and nine. The house structure was located substantially on lots six and seven, save for concrete entrance steps which encroached .7 metre onto lot eight. The front of the house ran parallel and was very close to the common boundary of lots seven and eight. The house was serviced by a gravelled entrance driveway passing over lots eight and nine, with the gateway to Palmer Street, and letter box, on lot nine. The house was complemented by a garden well-established over the rest of the lots.

By her will, the testatrix bequeathed what she termed “my house property” to her sister and half brother, and directed her executors to sell the residue of her estate, which was also to go to her sister and half brother, save for “the nett sale price of my vacant allotment of land on the…

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 Romano v Ladewig

Details

AGLC: Romano v Ladewig [2003] QCA 530
Case: [2003] QCA 530
Decision Date: 28 November 2003

CaseChat Overview and Summary

The case of Romano v Ladewig involved a dispute over the interpretation of a bequest in a will. The deceased, known as the testatrix, had made a will leaving the net sale price of a "vacant allotment of land on the lefthand side of my house property" to the respondent. The issue arose because the testatrix had owned five contiguous lots, including properties on both sides of her house, and had sold the lot to the left of her house (from the perspective of an observer on the street) prior to making the will. The appellants, as beneficiaries of the will, argued that the bequest should refer to the property on the right side of the house (from the perspective of an observer on the street) as it was the vacant allotment remaining in the testatrix's possession. The legal issue was determining the intended reference of the bequest, whether it was from the perspective of an observer on the street or from the perspective of an observer in the house.

The court examined the language of the will and the surrounding circumstances, including the testatrix's ownership of the lots and her actions prior to making the will. The court found that the testatrix's perspective was crucial in interpreting the bequest. The court determined that the testatrix was speaking from the perspective of an observer in the house, as the language of the will and the context of her ownership and sale of the lots supported this interpretation. Consequently, the bequest referred to the property on the left side of the house (from the perspective of an observer in the house), which was the vacant allotment remaining after the sale of the lot to the left of the house (from the perspective of an observer on the street).

As a result, the court dismissed the appeal, holding that the bequest correctly referred to the vacant allotment on the left side of the house (from the perspective of an observer in the house). The court ordered that the costs of the appeal were to be assessed.

Orders

Orders of the court

Appeal dismissed with costs to be assessed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Romano & Anor v Ladewig & Anor [2003] QCA 530
PARTIES:	CATERINA ROMANO AND ROCKY NIMJIS HOARAN (AS BENEFICIARIES UNDER THE WILL OF MARJORIE OAKEY POCOCK) (applicants/appellants) v CLEM LADEWIG AND IAN LADEWIG (THE NEXT OF KIN OF THE DECEASED ENTITLED TO SHARE IN THE ESTATE ON AN INTESTACY) (respondents/respondents)
FILE NO/S:	Appeal No 6179 of 2003 SC No 5011 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 November 2003
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2003
JUDGES:	de Jersey CJ, McPherson JA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs to be assessed
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – WHAT WORDS WILL PASS PARTICULAR PROPERTY – REAL ESTATE – where testatrix bequeathed net sale price of “vacant allotment of land on the lefthand side of my house property” – where testatrix originally owned five contiguous lots, including lots on both sides of house – where testatrix sold lot to left of house (from perspective of observer on street) prior to making will – where lots to right of house (from perspective of observer on street) contained garden and driveway associated with house – whether testatrix speaking from perspective of observer on street or from perspective of observer in house Succession Act 1981 (Qld), s 28 Hicks v McLure (1922) 64 SCR 361, considered McBride v Hudson (1962) 107 CLR 604, applied Pohlner v Pfeiffer (1964) 112 CLR 52, considered Thomas v Bergin [1986] 2 Qd R 478, applied
COUNSEL:	J Griffin QC, with T Somers, for the appellants A Morris QC, with P Howard, for the respondents
SOLICITORS:	Deacon & Milani for the appellants Martinez Lawyers for the respondents