Tesch v Knight

[2014] QDC 14

DISTRICT COURT OF QUEENSLAND

CITATION:

Tesch v Knight & Anor [2014] QDC 14

PARTIES:

TANIA MAREE TESCH
(Applicant/Plaintiff)

v

YVONNE KNIGHT and ANOTHER
(Respondent/Defendant)

FILE NO/S:

3286 of 2006

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane Registry

DELIVERED ON:

31 January 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2014

JUDGE:

Reid DCJ

ORDER:

1.   The Originating Application by the applicant Tania Maree Tesch filed 9 November 2006 be dismissed for want of prosecution.

2.   The applicant Tania Maree Tesch pay the respondent’s costs of the proceedings to be agreed, or failing agreement, to be assessed on a standard basis.

CATCHWORDS:

Want of prosecution – delay – estate – claim by daughter – entitlement of de-facto to long relationship – prejudice

Collett & Anor v Knox & Anor [2010] QSC 132 applied

Hollyander Pty Ltd v Mike O’Regan & Associates Pty Ltd & Anor [2011] QSC 164 considered

Tyler v Custom Credit Corporation Limited [2000] QCA 178 considered

COUNSEL:

T. Tesch (applicant) in person

J.F. Curran for the respondent

SOLICITORS:

D.J Allard for the respondent

Introduction

1. This is an application (by the respondent to a claim by the applicant in proceedings for further and better provision out of an estate) for an order that the proceedings be dismissed for want of the prosecution.  The respondent opposes such an order and submits that she should, pursuant to r. 389(2) of the Uniform Civil Procedure Rules 1999 (Qld), be given leave to proceed with her action.

Background

1. I shall refer to the applicant in the proceedings, Ms Tesch, as the applicant, and to Ms Knight, who was the original applicant before me but the respondent in the proceedings, as the respondent.  The applicant commenced proceedings in November 2006 following the death of her father on the 15 February 2006.

2. Under his Will, the applicant’s father left the whole of his estate to the respondent who was, it seems, his de-facto partner for some 22 years.  The applicant was born in about 1971 and so would have been about 13 years old when they commenced that relationship.  The applicant contests that the respondent and her father were in a de-facto relationship.  But beside the evidence of the respondent, the fact of that relationship is also attested to by Ronald Johns who, in his affidavit of 12 September 2008, describes himself as one of the deceased’s closest friends for 20 years prior to his death.  The Will itself probably also lends support to the evidence of that relationship. 

3. Indeed, in the affidavit material, the applicant says that she accepts that the respondent lived at the property at Brownhill Street, Logan, with the deceased for about 22 years but says she does not know whether she and the respondent had a sexual relationship.  The applicant told me that she was approximately 13 years of age went the relationship between her father and the respondent appeared to have commenced and that after she first met her father when she was about 18, she had an on-again,…