Thomson & Anor v. Kohn (as executrix of the will of Paul James Thomson)

[2009] QDC 12

[2009] QDC 12

DISTRICT COURT

CIVIL JURISDICTION

JUDGE EVERSON

Application No 309 of 2007

KATHLEEN MARY THOMSON and RIKKI-LEE THOMSON	Applicants
and
GEORGA KOHN (AS EXECUTRIX OF THE WILL OF PAUL JAMES THOMSON DECEASED)	Respondent

CAIRNS

..DATE 23/01/2009

JUDGMENT

HIS HONOUR:  This is an application brought by the solicitors

on the record for the first respondent Georga Kohn (as

executrix of the Will of Paul James Thomson, deceased) for

leave to withdraw from the record pursuant to rule 990 of the

Uniform Civil Procedure Rules 1999.

It's clear from the material that has been put before me that

their client has failed to respond to any attempts by them to

contact her and otherwise correspond with her since the

commencement of this proceeding.  It is also clear to me that

they are incapable of exerting any influence over their client

to induce her to comply with previous orders of this court.

On behalf of the applicants, Mr Todd submits that the utility

of them remaining on the record is that he has an address for

service.  He concedes that otherwise the solicitors on the

record do not appear to be instructed or be in a position to

influence the actions of the person they purportedly

represent.  In all of the circumstances, there does not appear

to be any utility to their remaining on the record and I

propose to grant the application.

In order to ensure that Mr Todd's concerns that an address for

service are met, I intend to order that documentation in this

proceeding be served upon the last known address for the first

respondent at RL 123 Main Street, Tolga, Queensland, which is

the address, I'm informed, of her parents.

Accordingly, the court orders as follows:

(1) that Lee Turnbull & Co be granted leave to withdraw

as solicitors on the record for the first respondent;

(2) that the address for service for the first respondent

in this proceeding be RL 123 Main Street, Tolga,

Queensland.

...

HIS HONOUR:  I order that the first respondent pay the first

and second applicants, Kathleen Mary Thomson and Rikki-Lee

Thomson's costs of and incidental to this application,

on the standard basis.  And I also order that she pay the

costs of Lee Turnbull & Co of and incidental to the

application on the standard basis.

...

HIS HONOUR:  I amend the order I made earlier to record the

address as Marion Street, not Main Street.

...

HIS HONOUR:  This is an application seeking the lifting of the

stay of a notice requiring third party disclosure which was

issued out of this Registry on 23 September 2008.  The notice

requiring third party disclosure was issued following an order

made by me on 22 August 2008, freezing the assets of the first

respondent in this proceeding, who is the executrix of the

Will of Paul James Thomson (deceased).  The notice of third

party disclosure required the Commonwealth Bank to produce

documentation relating to an account held by the first

respondent in an endeavour to locate funds, which are the

proceeds of the estate of the above named deceased.  The

proceeding itself is an application for family provision,

which was brought by way of an originating application filed

on 23 March 2007 in Innisfail.

The Commonwealth Bank takes the point that as the proceeding

is an originating application, there is no obligation to

comply with the notice of third party disclosure as pursuant

to rule 242 (1)(a).  There can be no documentation relevant to

an allegation in issue in the pleadings because of the nature

of the proceeding.  To put it simply, an originating

application does not require pleadings, and there are no

pleadings in a conventional sense in this proceeding.

The definition of pleading includes what might be termed

conventional pleadings and is found in Schedule 4 of the

Uniform Civil Procedure Rules. It also includes, inter alia,

"an affidavit ordered to stand as a pleading".

The bank also takes the point that there is no issue with

respect to the location of the money, as the first respondent

has not ever taken any steps to file any material disputing

anything in this proceeding.  In fact, what has occurred is

that the first respondent has received the proceeds of the

estate, which appear to have been forwarded to her in error by

her former solicitors, and disappeared with the money.

The originating application seeks, in paragraph 1, that

adequate provision be made for the proper maintenance and

support of the first and second applicants out of the estate

of the above named deceased.  There are affidavits filed on 23

March 2007 on behalf of the second applicant and 27 March 2007

on behalf of the first applicant supporting their entitlement,

the subject of the originating application.  An affidavit has

also been filed on 7 November 2007 by Mr Todd, who appears

before me on behalf of the first and second applicants,

deposing to the release of the proceeds of the estate to the

first respondent while this proceeding was pending.  It is

therefore most evident to me that the location of the proceeds

of the estate of the above named deceased is clearly directly

relevant and in issue in this proceeding in order for adequate

provision to be made for the proper maintenance and support of

the first and second applicants out of the estate.

I make an order that the affidavits referred to above stand as

pleadings in this proceeding.

I further order that the stay that has been effected by the

objection of the Commonwealth Bank of Australia to the notice

of third party disclosure accordingly be lifted.

...

HIS HONOUR:  The final order of the court is that each party

bear their own costs of and incidental to this application.

-----