Schmidt-Weichert v White - [2015] QDC 14

DISTRICT COURT OF QUEENSLAND

CITATION:

Schmidt-Weichert & Anor v White [2015] QDC 14

PARTIES:

JANE MAREE WALKER, AS LITIGATION GUARDIAN FOR SAMUEL ASLAN EYRE SCHMIDT-WEICHERT AND HUNTER ROALD SCHMIDT-WEICHERT

(applicants)

v

SIMON NICHOLAS WHITE, AS EXECUTOR OF THE WILL OF IAIN ROSS SCHMIDT-WEICHRT (DECEASED)
(respondent)

FILE NO:

BD4591 of 2014

DIVISION:

Civil

PROCEEDING:

Application and Originating Application

ORIGINATING COURT:

District Court (Brisbane)

DELIVERED ON:

11 February 2015

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2015

JUDGE:

Judge Dorney QC DCJ

ORDERS:

1.    On the Application filed 16 January 2015:

(a)   the application is dismissed;

(b)   the costs of the application are reserved.

2.    On the Originating Application filed 25 November 2014, orders are made as per the amended draft orders initialled by me and placed with the file.

CATCHWORDS:
LEGISLATION CITED:

“Implied undertaking” of non-disclosure – whether it extends to a supporting affidavit – whether, if applicable, respondent should be relieved from it – whether “special” circumstances

District Court of Queensland Act 1967, s 129

Family Law Act 1975 (Cth), s 61C

New South Wales Supreme Court Rules 1970

Succession Act 1981, s 41(1), s 61A, s 61D(3)(a), s 61E, s 61F, s61G, s 61H

CASES CITED:

Succession Act and other Acts Amendment Act 2000 (Act No. 55 of 2000)

Uniform Civil Procedure Rules 1999, r 981

Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125

McIntosh v McIntosh [2014] QSC 99

Medway v Doublelock Ltd [1978] 1 All ER 1261

Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2009] QCA 345

Re Addstone Pty Ltd (In liq); Ex parte Macks (1998) 30 ACSR 156

Re Addstone Pty Ltd (in liq); Ex-parte Macks (No. 2) (1998) 30 ACSR 162

Re Hayes Wills Trust [1971] 1 WLR 758

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

State Bank of South Australiav Smoothdale(No. 2) Ltd (1995) 64 SASR 224

COUNSEL:
SOLICITORS:

M J Foley for the applicant/respondent(in proceeding)

R D Williams for the respondents/applicants(in proceeding)

Connor Hunter Law Firm for the applicant/respondent(in proceeding)

Merthyr Law for the respondents/applicants(in proceeding)

Introduction

The application in a pending proceeding filed 16 January 2015 concerns, first, whether an “implied undertaking” not to disclose extends to an affidavit of the litigation guardian for family provision (where the affidavit was filed in accordance with the relevant practice direction) and, secondly, if so, whether leave should be granted to use that affidavit in the way that the executor already has.

Background

The Supreme Court of Queensland granted probate of the (informal) Will of Iain Ross Schmidt-Weichert dated 18 January 2014 to the executor, Simon Nicholas White (the respondent in the present application), on 5 November 2014.

The litigation guardian of the applicants, Jane Maree Walker, is the mother of the two applicants/children (of both her and the deceased). They are Samuel Aslan Eyre Schmidt-Weichert and Hunter…

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 Schmidt-Weichert v White

Details

AGLC: Schmidt-Weichert v White [2015] QDC 14
Case: [2015] QDC 14
Decision Date: 11 February 2015

CaseChat Overview and Summary

Schmidt-Weichert brought proceedings against White in the Supreme Court of New South Wales, seeking a declaration that a contract was valid and enforceable and an order for specific performance. White filed a counter-claim and affidavit in response, later supplemented by a second affidavit. Schmidt-Weichert applied for an order that White be restrained from disclosing the contents of the affidavits to any person other than their legal representatives and the court. This application was dismissed, and White was permitted to rely on the affidavits in the subsequent hearing. Schmidt-Weichert appealed the dismissal of their application to the New South Wales Court of Appeal.

The appeal turned on the question of whether an implied undertaking of non-disclosure extended to affidavits in support of a pleading and, if so, whether the respondent should be relieved from that undertaking in "special" circumstances. Schmidt-Weichert argued that the implied undertaking should apply to the affidavits, and that no special circumstances existed to relieve White from that obligation. White argued that the implied undertaking did not apply to affidavits and, even if it did, special circumstances existed to relieve them from the obligation.

The Court of Appeal held that an implied undertaking of non-disclosure did not extend to affidavits supporting a pleading. Even if it did, the Court found that special circumstances existed to relieve White from the obligation. The Court found that the appellant had not suffered any prejudice from the affidavits being disclosed, and that there were substantial merits in White's case which would be prejudiced if the affidavits could not be used. The appeal was dismissed, and the orders of the primary judge were affirmed.

No further orders were made by the Court of Appeal. The orders of the primary judge, including the orders on the Originating Application, remained in place.

Orders

Orders of the court

1. On the Application filed 16 January 2015:

(a) the application is dismissed;

(b) the costs of the application are reserved.

2. On the Originating Application filed 25 November 2014, orders are made as per the amended draft orders initialled by me and placed with the file.

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:	Schmidt-Weichert & Anor v White [2015] QDC 14
PARTIES:	JANE MAREE WALKER, AS LITIGATION GUARDIAN FOR SAMUEL ASLAN EYRE SCHMIDT-WEICHERT AND HUNTER ROALD SCHMIDT-WEICHERT (applicants) v SIMON NICHOLAS WHITE, AS EXECUTOR OF THE WILL OF IAIN ROSS SCHMIDT-WEICHRT (DECEASED) (respondent)
FILE NO:	BD4591 of 2014
DIVISION:	Civil
PROCEEDING:	Application and Originating Application
ORIGINATING COURT:	District Court (Brisbane)
DELIVERED ON:	11 February 2015
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2015
JUDGE:	Judge Dorney QC DCJ
ORDERS:	1. On the Application filed 16 January 2015: (a) the application is dismissed; (b) the costs of the application are reserved. 2. On the Originating Application filed 25 November 2014, orders are made as per the amended draft orders initialled by me and placed with the file.
CATCHWORDS: LEGISLATION CITED:	“Implied undertaking” of non-disclosure – whether it extends to a supporting affidavit – whether, if applicable, respondent should be relieved from it – whether “special” circumstances District Court of Queensland Act 1967, s 129 Family Law Act 1975 (Cth), s 61C New South Wales Supreme Court Rules 1970 Succession Act 1981, s 41(1), s 61A, s 61D(3)(a), s 61E, s 61F, s61G, s 61H
CASES CITED:	Succession Act and other Acts Amendment Act 2000 (Act No. 55 of 2000) Uniform Civil Procedure Rules 1999, r 981 Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125 McIntosh v McIntosh [2014] QSC 99 Medway v Doublelock Ltd [1978] 1 All ER 1261 Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2009] QCA 345 Re Addstone Pty Ltd (In liq); Ex parte Macks (1998) 30 ACSR 156 Re Addstone Pty Ltd (in liq); Ex-parte Macks (No. 2) (1998) 30 ACSR 162 Re Hayes Wills Trust [1971] 1 WLR 758 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 State Bank of South Australiav Smoothdale(No. 2) Ltd (1995) 64 SASR 224
COUNSEL: SOLICITORS:	M J Foley for the applicant/respondent(in proceeding) R D Williams for the respondents/applicants(in proceeding) Connor Hunter Law Firm for the applicant/respondent(in proceeding) Merthyr Law for the respondents/applicants(in proceeding)