Stevens v McGrath and Kane - [2004] QSC 138

SUPREME COURT OF QUEENSLAND

CITATION: Stevens v McGrath and Kane [2004] QSC 138

PARTIES:
DENISE MARGARET STEVENS in her capacity as one of the executors and trustees of the Will of the late FRANCIS GERALD McGRATH
(plaintiff/defendant to counterclaim)
v
DULCIE MAVIS McGRATH by her litigation guardian PETER DAVID KANE
(first defendant/plaintiff to counterclaim)
and
MICHAEL FRANCIS KANE in his capacity as one of the executors and trustees of the Will of the late FRANCIS GERALD McGRATH
(second defendant)

FILE NO/S: S92 of 2000

DIVISION: Trial

PROCEEDING: Claim

ORIGINATING COURT: SUPREME COURT

DELIVERED ON: 7 May 2004

DELIVERED AT: TOWNSVILLE

HEARING DATE: 22-23 April 2004

JUDGES: CULLINANE J.

ORDER:
1(a) A declaration that the land described as Lot 63 and 65 on RP 704691 in the County of Carlisle, Parish of Howard, Title Reference 20684211 has, at all material times, been the property of a partnership subsisting between the late Francis Gerald McGrath and the first defendant.

(b) A declaration that the said partnership was dissolved upon the death of the deceased and an order that the affairs of the said partnership be wound up and that all necessary inquiries be made and all necessary accounts be taken for such purpose.

(c) Liberty to apply.

2. A declaration that clause 3 of the will of the deceased, Francis Gerald McGrath dated 25^th June 1999 confers upon the first defendant a personal right to reside in the former matrimonial home situated at 125 Donaldson Street, Mackay in the State of Queensland and does not confer any interest in the said land upon the first defendant.

I order that the defendants pay the plaintiff’s costs of the action to be assessed.

CATCHWORDS:
SUCCESSION – PARTNERSHIP DISSOLUTION UPON DEATH OF PARTNER – whether real property held by deceased and first defendant subsisted as partnership property – whether partnership subsisted between partners – where absence of formal partnership agreement.

SUCCESSION – INTERPRETATION OF A WILL – whether interest conferred on first defendant by deceased’s will granted a life interest or a mere personal right of residence – where first defendant left matrimonial residence to live in nursing home – where executrix took possession – whether executrix liable for trespass claim by first defendant.

COUNSEL: Mr Hack for the plaintiff
Mr Morzone for the defendants

SOLICITORS: Macrossan & Amiet for the plaintiff
Kimballs Lawyers for the defendants

These proceedings raise two issues.

The first is whether certain real property situated at Kenilworth Street, Mackay on which are constructed some flats and which was held by the deceased, Francis Gerald McGrath and the first defendant as joint tenants is the property of a partnership which subsisted between them.

The second is whether the interest conferred on the first defendant by the deceased’s will of 25^th June 1999 in a dwelling situated at Donaldson Street, Mackay grants her a life interest therein or merely a personal right of residence in the dwelling.

The action has been brought by an executrix of the deceased’s will (a…

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 Stevens v McGrath and Kane

Details

AGLC: Stevens v McGrath and Kane [2004] QSC 138
Case: [2004] QSC 138
Decision Date: 7 May 2004

CaseChat Overview and Summary

Stevens v McGrath and Kane involved a dispute over the succession rights in relation to the estate of Francis Gerald McGrath, who died intestate and in partnership with the first defendant. The plaintiff, Stevens, sought declarations regarding the nature of the property held by the deceased and the first defendant, and the interpretation of McGrath's will concerning a residence in Mackay. The court was required to determine whether the property in question was held as partnership property, whether the partnership subsisted in the absence of a formal agreement, and the nature of the interest conferred by the deceased's will on the first defendant concerning the residence.

The court found that the property described as Lot 63 and 65 on RP 704691 in the County of Carlisle had indeed been held by the partnership between McGrath and the first defendant. The court ruled that the partnership dissolved upon McGrath's death and ordered the winding up of the partnership's affairs. Regarding the residence, the court held that clause 3 of McGrath's will granted the first defendant a personal right to reside in the former matrimonial home, rather than conferring any interest in the land itself.

The court's reasoning focused on the nature of the partnership and the absence of a formal agreement, yet it found that the conduct and circumstances implied a partnership. The interpretation of the will clause was pivotal in determining that the first defendant's right was merely personal, allowing for residence but not ownership of the property. The plaintiff's costs were awarded to the defendants.

Orders

Orders of the court

1(a) A declaration that the land described as Lot 63 and 65 on RP 704691 in the County of Carlisle, Parish of Howard, Title Reference 20684211 has, at all material times, been the property of a partnership subsisting between the late Francis Gerald McGrath and the first defendant.

(b) A declaration that the said partnership was dissolved upon the death of the deceased and an order that the affairs of the said partnership be wound up and that all necessary inquiries be made and all necessary accounts be taken for such purpose.

2. A declaration that clause 3 of the will of the deceased, Francis Gerald McGrath dated 25th June 1999 confers upon the first defendant a personal right to reside in the former matrimonial home situated at 125 Donaldson Street, Mackay in the State of Queensland and does not confer any interest in the said land upon the first defendant.

I order that the defendants pay the plaintiff’s costs of the action 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:	Stevens v McGrath and Kane [2004] QSC 138
PARTIES:	DENISE MARGARET STEVENS in her capacity as one of the executors and trustees of the Will of the late FRANCIS GERALD McGRATH (plaintiff/defendant to counterclaim) v DULCIE MAVIS McGRATH by her litigation guardian PETER DAVID KANE (first defendant/plaintiff to counterclaim) and MICHAEL FRANCIS KANE in his capacity as one of the executors and trustees of the Will of the late FRANCIS GERALD McGRATH (second defendant)
FILE NO/S:	S92 of 2000
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	SUPREME COURT
DELIVERED ON:	7 May 2004
DELIVERED AT:	TOWNSVILLE
HEARING DATE:	22-23 April 2004
JUDGES:	CULLINANE J.
ORDER:	1(a) A declaration that the land described as Lot 63 and 65 on RP 704691 in the County of Carlisle, Parish of Howard, Title Reference 20684211 has, at all material times, been the property of a partnership subsisting between the late Francis Gerald McGrath and the first defendant. (b) A declaration that the said partnership was dissolved upon the death of the deceased and an order that the affairs of the said partnership be wound up and that all necessary inquiries be made and all necessary accounts be taken for such purpose. (c) Liberty to apply. 2. A declaration that clause 3 of the will of the deceased, Francis Gerald McGrath dated 25^th June 1999 confers upon the first defendant a personal right to reside in the former matrimonial home situated at 125 Donaldson Street, Mackay in the State of Queensland and does not confer any interest in the said land upon the first defendant. I order that the defendants pay the plaintiff’s costs of the action to be assessed.
CATCHWORDS:	SUCCESSION – PARTNERSHIP DISSOLUTION UPON DEATH OF PARTNER – whether real property held by deceased and first defendant subsisted as partnership property – whether partnership subsisted between partners – where absence of formal partnership agreement. SUCCESSION – INTERPRETATION OF A WILL – whether interest conferred on first defendant by deceased’s will granted a life interest or a mere personal right of residence – where first defendant left matrimonial residence to live in nursing home – where executrix took possession – whether executrix liable for trespass claim by first defendant.
COUNSEL:	Mr Hack for the plaintiff Mr Morzone for the defendants
SOLICITORS:	Macrossan & Amiet for the plaintiff Kimballs Lawyers for the defendants