Stott v. Lyons and Stott (as executors) - [2007] QSC 87

SUPREME COURT OF QUEENSLAND

CITATION:

Nadao Stott v Lyons and Stott (as executors) [2007] QSC 087

PARTIES:

NADAO STOTT (under Part IV, sections 40-44, Succession Act 1981)
(applicant)

AND

GEOFFREY MICHAEL LYONS and GREGORY FRANCIS STOTT (as executors of the will of PATRICK JOHN STOTT deceased)
(respondents)

FILE NO/S:

BS 10019/05

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

16 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2007

JUDGE:

White J

ORDER:

1. The executors can and ought commence proceedings in the Family Court of Australia at its Brisbane registry seeking the transfer of proceedings BRF 3761/2004 to the Supreme Court of Queensland to be heard and determined with proceedings BS 10019/05.

2. The executors and the respondents’ costs of the executors’ application be paid out of the estate on the indemnity basis.

CATCHWORDS:

PROCEDURE - COURTS AND JUDGES - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - TRANSFER OF PROCEEDINGS BETWEEN FAMILY COURT OF AUSTRALIA AND OTHER COURTS - where the applicants are the executors of the deceased's will – where the second wife has an application for family provision in the Supreme Court of Queensland – where the executors are the respondents to an application in the Family Court of Australia for property orders by the first wife - where the application in Family Court of Australia and the application in the Supreme Court of Queensland materially concerns the same property – whether the Family Court of Australia has accrued jurisdiction – whether an application ought to be made to the Family Court of Australia for the transfer of the Family Court proceedings to the Supreme Court of Queensland to allow proceedings to be adjudicated in the same forum.

EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY - PETITIONS OR SUMMONS FOR ADVICE - where the applicants executors seeks directions under s 96 Trusts Act 1973 - whether the applicants should apply for leave to transfer proceedings from the Family Court of Australia to the Supreme Court of Queensland

Family Law Act 1975 (Cth), s 75(2), 79
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)
Trusts Act 1973 (Qld), s 96
Succession Act 1981 (Qld), ss 6, 41
Uniform Civil Procedure Rules (Qld), r 640, 668(1)(b)

Re Atkinson deceased [1971] VR 612 cited
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 applied
Bishop v Bishop (2003) 175 FLR 10 cited
Finlayson v Finlayson (2002) 147 FLR 165 cited
Lewis v Rayhill (2006) FLRC 93-278 cited
Loughlan v McConnel [2006] QSC 359 cited
Smith v Smith (No 3) (1986) 161 CLR 217 considered
Re Wakim; Ex parte McNally (1999) 198 CLR 511 applied
Warby v Warby (2001) 166 FLR 319 cited
Young v Lalic [2006] NSWSC 18 cited

COUNSEL:

T Quinn for the applicants/executors
G Page SC for the respondent Prudence Stott
DJ Morgan for the respondent Nadao Stott

SOLICITORS:

de Groots for the applicants/executors
Nicol Robinson Halletts for Prudence…

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 Stott v. Lyons and Stott (as executors)

Details

AGLC: Stott v Lyons and Stott (as executors) [2007] QSC 87
Case: [2007] QSC 87
Decision Date: 14 April 2007

CaseChat Overview and Summary

In the case of Stott v. Lyons and Stott, the executors of a deceased's estate, the Lyons, were involved in a dispute with two of the deceased's former spouses. The proceedings arose from applications for family provision and property orders related to the deceased's estate. The Supreme Court of Queensland was handling an application from the second wife, while the Family Court of Australia was managing an application from the first wife concerning property orders. Both applications involved the same property, leading to questions about the jurisdiction of the Family Court of Australia and whether proceedings should be transferred to the Supreme Court of Queensland.

The central legal issue before the court was whether the Family Court of Australia had accrued jurisdiction over the proceedings and whether it was appropriate to transfer the Family Court proceedings to the Supreme Court of Queensland. This required an examination of the cross-vesting legislation that governs the transfer of proceedings between different Australian courts. The court needed to determine if the applications in the two courts were materially connected and if consolidating them in one forum would serve the interests of justice.

The court found that the applications in the Family Court of Australia and the Supreme Court of Queensland indeed concerned the same property and were materially connected. Given this, the court held that the Family Court of Australia had accrued jurisdiction over the proceedings. It was in the interests of justice to consolidate the proceedings in the Supreme Court of Queensland to avoid duplication and potential conflicts in decision-making. Consequently, the executors were directed to commence proceedings in the Family Court of Australia seeking a transfer of the Family Court proceedings to the Supreme Court of Queensland. Additionally, the executors and the respondents' costs of the executors' application were to be paid out of the estate on an indemnity basis.

This decision underscores the importance of considering the nature of the disputes, the connection between them, and the potential benefits of consolidating proceedings in one court when determining jurisdiction and the transfer of proceedings under cross-vesting legislation.

Orders

Orders of the court

1. The executors can and ought commence proceedings in the Family Court of Australia at its Brisbane registry seeking the transfer of proceedings BRF 3761/2004 to the Supreme Court of Queensland to be heard and determined with proceedings BS 10019/05.

2. The executors and the respondents’ costs of the executors’ application be paid out of the estate on the indemnity basis.

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:	Nadao Stott v Lyons and Stott (as executors) [2007] QSC 087
PARTIES:	NADAO STOTT (under Part IV, sections 40-44, Succession Act 1981) (applicant) AND GEOFFREY MICHAEL LYONS and GREGORY FRANCIS STOTT (as executors of the will of PATRICK JOHN STOTT deceased) (respondents)
FILE NO/S:	BS 10019/05
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	16 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	22 March 2007
JUDGE:	White J
ORDER:	1. The executors can and ought commence proceedings in the Family Court of Australia at its Brisbane registry seeking the transfer of proceedings BRF 3761/2004 to the Supreme Court of Queensland to be heard and determined with proceedings BS 10019/05. 2. The executors and the respondents’ costs of the executors’ application be paid out of the estate on the indemnity basis.
CATCHWORDS:	PROCEDURE - COURTS AND JUDGES - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS - TRANSFER OF PROCEEDINGS UNDER CROSS-VESTING LEGISLATION - TRANSFER OF PROCEEDINGS BETWEEN FAMILY COURT OF AUSTRALIA AND OTHER COURTS - where the applicants are the executors of the deceased's will – where the second wife has an application for family provision in the Supreme Court of Queensland – where the executors are the respondents to an application in the Family Court of Australia for property orders by the first wife - where the application in Family Court of Australia and the application in the Supreme Court of Queensland materially concerns the same property – whether the Family Court of Australia has accrued jurisdiction – whether an application ought to be made to the Family Court of Australia for the transfer of the Family Court proceedings to the Supreme Court of Queensland to allow proceedings to be adjudicated in the same forum. EQUITY - TRUSTS AND TRUSTEES - APPLICATIONS TO THE COURT FOR ADVICE AND AUTHORITY - PETITIONS OR SUMMONS FOR ADVICE - where the applicants executors seeks directions under s 96 Trusts Act 1973 - whether the applicants should apply for leave to transfer proceedings from the Family Court of Australia to the Supreme Court of Queensland Family Law Act 1975 (Cth), s 75(2), 79 Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) Trusts Act 1973 (Qld), s 96 Succession Act 1981 (Qld), ss 6, 41 Uniform Civil Procedure Rules (Qld), r 640, 668(1)(b) Re Atkinson deceased [1971] VR 612 cited ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 applied Bishop v Bishop (2003) 175 FLR 10 cited Finlayson v Finlayson (2002) 147 FLR 165 cited Lewis v Rayhill (2006) FLRC 93-278 cited Loughlan v McConnel [2006] QSC 359 cited Smith v Smith (No 3) (1986) 161 CLR 217 considered Re Wakim; Ex parte McNally (1999) 198 CLR 511 applied Warby v Warby (2001) 166 FLR 319 cited Young v Lalic [2006] NSWSC 18 cited
COUNSEL:	T Quinn for the applicants/executors G Page SC for the respondent Prudence Stott DJ Morgan for the respondent Nadao Stott
SOLICITORS:	de Groots for the applicants/executors Nicol Robinson Halletts for Prudence…