Sweaney v Bailie

Case [2017] QDC 295

DISTRICT COURT OF QUEENSLAND

CITATION:

Sweaney & Another v Bailie [2017] QDC 295

PARTIES:

JON EDGAR SWEANEY & JAN ELIZABETH SWEANEY
(applicants)

v

MICHAEL TRAVIS BAILIE (as Executor of the Will of the deceased)
(respondent)

FILE NO.:

4900 of 2016

DIVISION:

Civil

PROCEEDING:

Application

DELIVERED ON:

8 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2017

JUDGE:

Rosengren DCJ

ORDER:

1.   Pursuant to s 41 of the Succession Act 1981 (Qld), further and better provision for the proper maintenance and support of the applicant, Jon Edgar Sweeney, be made out of the estate of Ronald Ross Sweaney, deceased (the “deceased”) by the deceased’s Will dated 4 January 2016 (the “Will”) being read and construed as follows:

“3. I give the whole of my estate to my Trustee upon trust to pay my just debts. I give the whole of the residue of my estate to my son, Jon Edgar Sweaney.”

2.   The respondent’s costs of and incidental to the proceeding be paid out of the estate on an indemnity basis and be capped at $45,000.

3.   The applicants’ costs of and incidental to the proceeding be paid out of the estate on an indemnity basis and be capped at $45,000.

4.   The parties have liberty to apply.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – CLAIMS BY ADULT CHILDREN - where the applicant applied pursuant to s 41 Succession Act 1981 (Qld) for proper maintenance and support out of the deceased’s estate – where the parties came to an agreement as to the applicant’s claim for further and better provision of the deceased’s estate – where an order of the court is required to finalise the proceedings - significance of agreement between the parties as to orders

SUCCESSION – FAMILY PROVISION ORDER - COSTS – HOW BURDEN OF COSTS OF THE PROCEEDINGS TO BE BORNE – where the estate is modest - whether costs should follow the event or some other order should be made - whether costs for both parties should be capped or fixed

Legislation

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 687, r 700A, r 703(3)
Succession Act 1981 (Qld), s 41

Cases

Singer v Berghouse (1994) 181 CLR, cited
Abrahams v Abrahams [2015] QCA 286, cited
Affoo v Public Trustee of Queensland [2011] QSC 309, cited
Watts v Public Trustee of Queensland [2010] QSC 410, cited
Manly v the Public Trustee of Queensland [2008] QCA 198, cited
Collett & Anor v Knox & Anor [2010] QSC 210, cited
Underwood & Anor v Sheppard [2010] QCA 76, cited
Jackson v Riley (Unreported, Supreme Court of New South Wales, Cohen J, 24 February 1989), cited
Gill v Smith [2007] NSWSC 832, cited
Underwood v Underwood [2009] QSC 107, cited
Jones v Jones [2012] QSC 342, cited
DW v RW (No 2) [2013] QDC 189, cited
Cerneaz v Cerneaz & Anor (No 2) [2015] QDC 73, cited
COUNSEL:

D Kelly…

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AGLC
Sweaney v Bailie [2017] QDC 295
Case
[2017] QDC 295
Decision Date

CaseChat Overview and Summary

In the matter of Sweaney v Bailie, the applicant, Jon Edgar Sweaney, sought further and better provision for his maintenance and support from the estate of his deceased father, Ronald Ross Sweaney, pursuant to section 41 of the Succession Act 1981 (Qld). The application was made on the basis that the estate provided inadequate maintenance and support for the applicant, and the court was required to determine the appropriate orders to finalise the proceedings. The respondent, Bailie, who was the executor of the deceased's estate, did not contest the application but did seek an order that costs should follow the event.

The primary legal issue before the court was the appropriate way to finalise the proceedings, including the form of any order for further and better provision, and the allocation of costs between the parties. The court had to consider the significance of the agreement between the parties regarding the order for further and better provision, and whether the modest nature of the estate warranted a specific order regarding costs. The court was also required to determine whether costs should follow the event or if some other order should be made, and whether costs for both parties should be capped or fixed.

The court found that the agreement between the parties provided a clear basis for the order of further and better provision. Given the modest nature of the estate, the court ordered that the costs of the proceedings be borne by the estate on an indemnity basis, and capped the costs for each party at $45,000. The court held that the agreement between the parties regarding the form of the order and the costs provided a fair and appropriate resolution of the proceedings.

The court made an order that the deceased's will be read and construed to provide for the applicant's proper maintenance and support, and that the respondent's and applicant's costs be paid out of the estate on an indemnity basis, capped at $45,000 each. The parties were granted liberty to apply.

Orders

Orders of the court

1. Pursuant to s 41 of the Succession Act 1981 (Qld), further and better provision for the proper maintenance and support of the applicant, Jon Edgar Sweeney, be made out of the estate of Ronald Ross Sweaney, deceased (the “deceased”) by the deceased’s Will dated 4 January 2016 (the “Will”) being read and construed as follows:

“3. I give the whole of my estate to my Trustee upon trust to pay my just debts. I give the whole of the residue of my estate to my son, Jon Edgar Sweaney.”

2. The respondent’s costs of and incidental to the proceeding be paid out of the estate on an indemnity basis and be capped at $45,000.

3. The applicants’ costs of and incidental to the proceeding be paid out of the estate on an indemnity basis and be capped at $45,000.

4. The parties have liberty to apply.

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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