Strain v Walsh - [2011] QDC 165

DISTRICT COURT OF QUEENSLAND

CITATION:

Strain v Walsh [2011] QDC 165

PARTIES:

In the matter of the Succession Act 1981

And

In the matter of the Will of DAVID STRAIN late of 8 Cassia Court Palm Beach in the State of Queensland formerly of 3/168 Musgrave Road, Red Hill, Brisbane in the State of Queensland

And

In the matter of an Application by KATHLEEN WALSH (also known as KAY STRAIN) of 8 Cassia Court, Palm Beach in the State of Queensland under Part IV of the said Act

FILE NO/S:

D475/98

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

12 August 2011

DELIVERED AT:

Southport

HEARING DATE:

1 August 2011

JUDGE:

Newton DCJ

ORDER:

1.    With respect to the application dated 20 June 2011, filed on behalf of the applicant Ms Walsh, I order that Shirley Kathleen Stapleton as executrix of the estate of the late Kathleen Walsh be substituted as the applicant in this proceeding and that there be no order as to costs.

2.    With respect to the application dated 21 November 2008, filed on behalf of the applicant Ms Walsh, I order that the application be dismissed and that there be no order as to costs.

3.    With respect to the application dated 19 May 2011, filed on behalf of the respondent executor for the estate of David Strain, I order that:

(1)     leave to proceed be granted;

(2)     the order of her Honour Judge Dick SC dated 12 January 2009 be set aside;

(3)     the matter proceed to hearing before this Court as to the quantum of award (if any) Ms Walsh would have been entitled to in respect of the period between the date of Mr Strain’s death, 17 October 1997, and the date of the death of Ms Walsh, 8 November 2008; and

(4)     the costs of and incidental to the application as between Solicitor and own client be assessed and paid out of the estate of David Strain.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Application for further provision from deceased estate – applicant dies before determination of application – Court not notified of applicant’s death when orders made for further provision – effect of death of applicant prior to Court order being made.

The Succession Act 1981 (Qld)

The Uniform Civil Procedure Rules 1999 (Qld)

Albany v Albany [2010] NTSC 25 (24 May 2010)

Hills v Chalk & Anor (as executors of the estate of Chalk (deceased)) [2008] QCA 159

Groser v Equity Trustees [2008] VSC 163

King & Anor v Condon & Anor [2009] QSC 67

Underwood v Underwood [2009] QSC 107

COUNSEL:

Mr DJ Morgan for the executor of the estate of David Strain.

Mr MJ Campbell for the executrix of the estate of Kathleen Walsh.

SOLICITORS:

Robbins Watson for the executor of the estate of David Strain.

O’Neills Solicitors for the executrix of the estate of Kathleen Walsh.

Kathleen Walsh (also known as Kay Strain) brought an application in this Court[1] seeking an order that adequate…

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 Strain v Walsh

Details

AGLC: Strain v Walsh [2011] QDC 165
Case: [2011] QDC 165
Decision Date: 12 August 2011

CaseChat Overview and Summary

In Strain v Walsh, the court addressed issues concerning family provision and maintenance applications arising from the estate of David Strain. The deceased, David Strain, died on 17 October 1997, leaving behind an estate. Kathleen Walsh, the applicant, had filed applications for further provision from the estate, which were initially considered. Walsh died on 8 November 2008, prior to the final determination of these applications. The court was tasked with resolving the effect of Walsh's death on the pending applications and the implications for the estate.

The primary legal issues before the court were the status of the applications filed by Walsh for further provision from Strain's estate and the impact of her death before the applications were decided. Specifically, the court had to determine whether the applications could proceed posthumously and, if so, how they should be handled in light of Walsh's death. Additionally, the court needed to address the executor's application to set aside an earlier order and determine the quantum of any award that Walsh might have been entitled to.

The court found that the application dated 20 June 2011, filed on behalf of Walsh, could not proceed posthumously as Walsh had died before any orders were made. Consequently, Shirley Kathleen Stapleton, as executrix of Walsh's estate, was substituted as the applicant. However, the application dated 21 November 2008 was dismissed as Walsh had already died before it could be decided. Regarding the executor's application, the court granted leave to proceed and set aside an earlier order, scheduling a hearing to determine the quantum of any award Walsh might have been entitled to for the period between Strain's death and Walsh's death. Costs for the executor's application were to be borne by Strain's estate.

In conclusion, the court ordered that Stapleton be substituted as the applicant in the 2011 application, dismissed the 2008 application, granted leave to proceed with the executor's application, set aside a previous order, and scheduled a hearing to determine the quantum of any award Walsh might have been entitled to. Costs for the executor's application were to be paid out of Strain's estate.

Orders

Orders of the court

1. With respect to the application dated 20 June 2011, filed on behalf of the applicant Ms Walsh, I order that Shirley Kathleen Stapleton as executrix of the estate of the late Kathleen Walsh be substituted as the applicant in this proceeding and that there be no order as to costs.

2. With respect to the application dated 21 November 2008, filed on behalf of the applicant Ms Walsh, I order that the application be dismissed and that there be no order as to costs.

3. With respect to the application dated 19 May 2011, filed on behalf of the respondent executor for the estate of David Strain, I order that:

(1) leave to proceed be granted;

(2) the order of her Honour Judge Dick SC dated 12 January 2009 be set aside;

(3) the matter proceed to hearing before this Court as to the quantum of award (if any) Ms Walsh would have been entitled to in respect of the period between the date of Mr Strain’s death, 17 October 1997, and the date of the death of Ms Walsh, 8 November 2008; and

(4) the costs of and incidental to the application as between Solicitor and own client be assessed and paid out of the estate of David Strain.

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:	Strain v Walsh [2011] QDC 165
PARTIES:	In the matter of the Succession Act 1981 And In the matter of the Will of DAVID STRAIN late of 8 Cassia Court Palm Beach in the State of Queensland formerly of 3/168 Musgrave Road, Red Hill, Brisbane in the State of Queensland And In the matter of an Application by KATHLEEN WALSH (also known as KAY STRAIN) of 8 Cassia Court, Palm Beach in the State of Queensland under Part IV of the said Act
FILE NO/S:	D475/98
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	12 August 2011
DELIVERED AT:	Southport
HEARING DATE:	1 August 2011
JUDGE:	Newton DCJ
ORDER:	1. With respect to the application dated 20 June 2011, filed on behalf of the applicant Ms Walsh, I order that Shirley Kathleen Stapleton as executrix of the estate of the late Kathleen Walsh be substituted as the applicant in this proceeding and that there be no order as to costs. 2. With respect to the application dated 21 November 2008, filed on behalf of the applicant Ms Walsh, I order that the application be dismissed and that there be no order as to costs. 3. With respect to the application dated 19 May 2011, filed on behalf of the respondent executor for the estate of David Strain, I order that: (1) leave to proceed be granted; (2) the order of her Honour Judge Dick SC dated 12 January 2009 be set aside; (3) the matter proceed to hearing before this Court as to the quantum of award (if any) Ms Walsh would have been entitled to in respect of the period between the date of Mr Strain’s death, 17 October 1997, and the date of the death of Ms Walsh, 8 November 2008; and (4) the costs of and incidental to the application as between Solicitor and own client be assessed and paid out of the estate of David Strain.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Application for further provision from deceased estate – applicant dies before determination of application – Court not notified of applicant’s death when orders made for further provision – effect of death of applicant prior to Court order being made. The Succession Act 1981 (Qld) The Uniform Civil Procedure Rules 1999 (Qld) Albany v Albany [2010] NTSC 25 (24 May 2010) Hills v Chalk & Anor (as executors of the estate of Chalk (deceased)) [2008] QCA 159 Groser v Equity Trustees [2008] VSC 163 King & Anor v Condon & Anor [2009] QSC 67 Underwood v Underwood [2009] QSC 107
COUNSEL:	Mr DJ Morgan for the executor of the estate of David Strain. Mr MJ Campbell for the executrix of the estate of Kathleen Walsh.
SOLICITORS:	Robbins Watson for the executor of the estate of David Strain. O’Neills Solicitors for the executrix of the estate of Kathleen Walsh.