Thompson v Cyati - [2024] QDC 205

DISTRICT COURT OF QUEENSLAND

CITATION:

Thompson v Cyati [2024] QDC 205

PARTIES:

Emma Narelle Cathryn Thompson

(Applicant)

v

Julene Frances Cyati as executor of the Estate of Francis Thompson, deceased.

(Respondent)

FILE NO:

BD 1202 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

29 November 2024.

DELIVERED AT:

Brisbane.

HEARING DATES:

28 - 30 May 2024 and 3 June 2024.

JUDGE:

Byrne KC DCJ

ORDERS:

1. The application is refused.

2. I will hear the parties as to costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicant and the respondent are the children of the deceased – where the deceased appointed the respondent as the executor of the estate and expressly excluded the applicant from benefiting under the Will and required the executor to collect a previous loan from the applicant – where the applicant was not dependant on the deceased and had a strained relationship with him - where the applicant applies for provision from the estate – where the application is contested – where eight years has passed between the filing of the application and the hearing – where the applicant’s financial position has deteriorated in that time - where an issue arises as to the correct date on which the value of the estate is to be calculated - whether the provision for the applicant’s proper maintenance and support from the estate was inadequate.

LEGISLATION:

Bankruptcy Act 1966 (Cth) s. 60.

Evidence Act 1977 (Qld) s. 59(2).
Succession Act 1981 (Qld) ss. 33E, 33J, 41.

CASES:

Blore v Lang (1960) 104 CLR 124.

Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494.
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134.
In re Sinnott [1948] VLR 279.
Lazenby & Anor v McDermott & Anor [2000] TASSC 121.
Manicaros v Commercial Images (Aust) Pty Ltd (in liq) [2024] QCA 40.
Niebour-Pott & Anor v Pott [2020] QSC 7.
Panagopoulos v Panagopoulos [2022] NSWSC 1151.
Singer v Berghouse (1994) 181 CLR 201.
The Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9.
Thompson v Cyati [2021] QDC 15.
Vigolo v Bostin (2005) 221 CLR 191.

COUNSEL:

The applicant was self-represented.

Ms. A. Rae for the respondent.

SOLICITORS:

The applicant was self-represented.

Bridge Brideaux Porta Lawyers for the respondent.

Table of Contents

Introduction and statement of issues

Chronology

Index to affidavit material read on the hearing.

General Credit Findings

Was the provision for the applicant’s proper maintenance and support from the estate inadequate?

The test to be applied.
What is the date at which the first stage question should be determined?

What was the size of the estate at the time of the deceased’s death?
What real estate should be included in the deceased’s estate?
How should the loans to both…

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 Thompson v Cyati

Details

AGLC: Thompson v Cyati [2024] QDC 205
Case: [2024] QDC 205
Decision Date: 29 November 2024.

CaseChat Overview and Summary

The matter before the court was an application by the applicant, Thompson, seeking provision from the estate of their deceased father, Cyati, on the basis that they were inadequately provided for. The respondent, also a child of the deceased, was appointed as executor of the estate and had been directed by the deceased's will to exclude the applicant from any benefit and to collect a previous loan from the applicant. The applicant contended that they were not adequately maintained and supported by the estate, despite not being dependent on the deceased and having a strained relationship with him.

The court was required to consider several legal issues, including whether the applicant was left with sufficient provision under the will, whether the applicant's financial position had deteriorated significantly since the application was filed, and the correct date for valuing the estate. The court needed to balance the applicant's claim for adequate maintenance and proper support against the deceased's clear intention, as expressed in the will, to exclude the applicant from any benefit. The court also had to consider the appropriate date for valuing the estate given the delay between the filing of the application and the hearing.

The court found that the applicant had not demonstrated that they were inadequately provided for, despite the deterioration in their financial position over the years. The court held that the applicant was not dependant on the deceased and that the deceased's intention, as expressed in the will, to exclude the applicant from any benefit should be respected. The court also determined that the value of the estate should be calculated as of the date of the deceased's death, rather than the date of the hearing. Accordingly, the application was dismissed, and the court reserved decision on the issue of costs.

Orders

Orders of the court

1. The application is refused.

2. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Thompson v Cyati [2024] QDC 205
PARTIES:	Emma Narelle Cathryn Thompson (Applicant) v Julene Frances Cyati as executor of the Estate of Francis Thompson, deceased. (Respondent)
FILE NO:	BD 1202 of 2017
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	29 November 2024.
DELIVERED AT:	Brisbane.
HEARING DATES:	28 - 30 May 2024 and 3 June 2024.
JUDGE:	Byrne KC DCJ
ORDERS:	1. The application is refused. 2. I will hear the parties as to costs.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION – CLAIMS BY CHILDREN – where the applicant and the respondent are the children of the deceased – where the deceased appointed the respondent as the executor of the estate and expressly excluded the applicant from benefiting under the Will and required the executor to collect a previous loan from the applicant – where the applicant was not dependant on the deceased and had a strained relationship with him - where the applicant applies for provision from the estate – where the application is contested – where eight years has passed between the filing of the application and the hearing – where the applicant’s financial position has deteriorated in that time - where an issue arises as to the correct date on which the value of the estate is to be calculated - whether the provision for the applicant’s proper maintenance and support from the estate was inadequate.
LEGISLATION:	Bankruptcy Act 1966 (Cth) s. 60. Evidence Act 1977 (Qld) s. 59(2). Succession Act 1981 (Qld) ss. 33E, 33J, 41.
CASES:	Blore v Lang (1960) 104 CLR 124. Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494. Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134. In re Sinnott [1948] VLR 279. Lazenby & Anor v McDermott & Anor [2000] TASSC 121. Manicaros v Commercial Images (Aust) Pty Ltd (in liq) [2024] QCA 40. Niebour-Pott & Anor v Pott [2020] QSC 7. Panagopoulos v Panagopoulos [2022] NSWSC 1151. Singer v Berghouse (1994) 181 CLR 201. The Pontifical Society for the Propagation of Faith v Scales (1962) 107 CLR 9. Thompson v Cyati [2021] QDC 15. Vigolo v Bostin (2005) 221 CLR 191.
COUNSEL:	The applicant was self-represented. Ms. A. Rae for the respondent.
SOLICITORS:	The applicant was self-represented. Bridge Brideaux Porta Lawyers for the respondent.