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Tomarra v Tomarra

Tomarra v Tomarra

Case [2019] QDC 72 10 May 2019

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DISTRICT COURT OF QUEENSLAND

CITATION:

Tomarra v Tomarra [2019] QDC 72

PARTIES:

SALLY ANN TOMARRA

(Applicant)

v

ERNEST KARL TOMARRA (Executor of the Estate of the late David John Tomarra)

(Respondent)

FILE NO/S:

59/2018

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

10 May 2019

DELIVERED AT:

Mackay

HEARING DATE:

29 April 2019

JUDGE:

Smith DCJA

ORDER:

1. That pursuant to s 41 of the Succession Act 1981 (Q) adequate provision be made for the proper maintenance and support of Sally Ann Tomarra out of the estate of the late David John Tomarra by transfer to her of the ½ interest owned by the deceased in the house and land at 168 McIntyre Street, Calen in the State of Queensland more particularly described as Lot 3 on Registered Plan 708420 in the County of Carlisle, Parish of St Helens being Title Reference 20349173.

2. The Registrar of Titles is entitled to execute the transfer- Form 1 transferring the interest in the property to the applicant.

3. I make no order as to costs.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – whether applicant left with insufficient provision.

Succession Act 1981 (Q) s 41.

Bladwell v Davis [2004] NSWCA 170

Clifford v Mayr [2010] NSWCA 6

Coates v National Trustees Executors andAgency Co Ltd (1956) 95 CLR 494

Collins v McGain & Anor [2003] NSWCA 190

Collins v Mutton [2012] NSWSC 548

Ellis v Leeder (1951) 82 CLR 645

Grey v Harrison [1997] 2 VR 359

Luciano v Rosenblum [1985] 2 NSWLR 65

Manly v Public Trustee ofQld [2008] QCA 198

Marshall v Carruthers [2002] NSWCA 47

O’Loughlin v O’Loughlin [2003] NSWCA 99

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9

Re Bourke deceased [1968] 2 NSWR 453

Re Fulop (1987) 8 NSWLR 679

Singer v Berghouse (No 2) (1994) 181 CLR

Vigolo v Bostin (2005) 221 CLR 191

Yeomans v Yeomans and Anor [2011] QSC 344

COUNSEL:

Solicitors for the applicant

Self-represented respondent

SOLICITORS:

Macrossan & Amiet for the applicant

Self-represented respondent

Introduction

This is an application[1] by the applicant pursuant to s 41(1) of the Succession Act 1981 (Q) for adequate provision to be made for her maintenance and support from the estate of David John Tomarra.
[1]Exhibit 1.

Applicant’s evidence

The applicant relies on two affidavits. One filed 24 August 2018[2] and one filed 23 April 2019.[3]
[2]Exhibit 2.
[3]Exhibit 3.

The deceased died on 3 May 2018. He was survived by the applicant (his wife), eight children from his first marriage (including the executor), and five children from the applicant’s first marriage.

The applicant commenced a relationship with the deceased on 26 September 1991. In about November 1991 the deceased and his five children (from a previous marriage) moved in with the applicant and her youngest daughter, Vivienne.

The applicant cared for the deceased’s children and raised them until they were adults. The applicant married the deceased on 22 July 1995 and they remained married…

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 Tomarra v Tomarra

Details

AGLC: Tomarra v Tomarra [2019] QDC 72
Case: [2019] QDC 72
Decision Date: 10 May 2019

CaseChat Overview and Summary

In the case of Tomarra v Tomarra, the applicant, Sally Ann Tomarra, sought provision from the estate of her deceased husband, David John Tomarra. The dispute centred on whether Sally was left with insufficient provision for her maintenance. The matter was heard in the Queensland Magistrates Court. The legal issues the court had to address were whether Sally was left with inadequate provision for her maintenance and support, and if so, whether the Family Provision Act 1969 (Q) applied to grant her a larger share of the estate.

The court considered the evidence presented by both parties, including financial statements, and assessed the needs of Sally in light of the assets available in the estate. The court noted that Sally had limited financial resources and was reliant on Centrelink payments, while David had accumulated a significant estate, including a house and land in Calen. The court determined that Sally was left with insufficient provision and granted her an order for adequate maintenance and support. It was decided that Sally should receive the ½ interest in the property owned by David, located at 168 McIntyre Street, Calen. The court did not make any order regarding costs.

The court's decision was based on the assessment of Sally's needs and the assets available in the estate. The court found that Sally's financial situation was precarious, and she relied on government assistance to make ends meet. The property in question was considered a significant asset that could provide Sally with the necessary financial security. The court was satisfied that the transfer of the ½ interest in the property to Sally would provide her with adequate provision for her maintenance and support. The court also noted that it was not necessary to make any order as to costs.

Orders

Orders of the court

1. That pursuant to s 41 of the Succession Act 1981 (Q) adequate provision be made for the proper maintenance and support of Sally Ann Tomarra out of the estate of the late David John Tomarra by transfer to her of the ½ interest owned by the deceased in the house and land at 168 McIntyre Street, Calen in the State of Queensland more particularly described as Lot 3 on Registered Plan 708420 in the County of Carlisle, Parish of St Helens being Title Reference 20349173.

2. The Registrar of Titles is entitled to execute the transfer- Form 1 transferring the interest in the property to the applicant.

3. I make no order as to costs.

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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Citations

Tomarra v Tomarra [2019] QDC 72

Cases Citing This Decision

No citing cases yet.

Cases Cited

Andrew v Andrew [2012] NSWCA 308
Citation 1 (Para 1)

…ient to permit her to live in the style to which she is accustomed, and to provide her with a fund to meet any unforeseen contingencies.”[20] [19](1985) 2 NSWLR 65. [20]See also O’Loughlin v O’Loughlin [2003] NSWCA 99 at [20]-[22] per Davies AJA.…
Collins v Mutton [2012] NSWSC 548
Citation 2 (Para 1)

…tionship with the deceased, financial circumstances, the environs to which he or she is accustomed and mobility.”[11] [11] Collins v Mutton [2012] NSWSC 548 at [59].…
Yeomans v Yeomans [2011] QSC 344
Citation 3

…NSWR 453 Re Fulop (1987) 8 NSWLR 679 Singer v Berghouse (No 2) (1994) 181 CLR Vigolo v Bostin (2005) 221 CLR 191 Yeomans v Yeomans and Anor [2011] QSC 344 COUNSEL: Solicitors for the applicant Self-represented respondent SOLICITORS: Macrossan & Amiet for the applicant Self-represented respondent Introduction…
Clifford v Mayr [2010] NSWCA 6
Citation 4 (Para 1)

…The Luciano principle was restated in Clifford v Mayr. [22] [22][2010] NSWCA 6 at [142-143].…
Manly v The Public Trustee of Qld [2008] QCA 198
Citation 5

…] NSWSC 548 Ellis v Leeder (1951) 82 CLR 645 Grey v Harrison [1997] 2 VR 359 Luciano v Rosenblum [1985] 2 NSWLR 65 Manly v Public Trustee of Qld [2008] QCA 198 Marshall v Carruthers [2002] NSWCA 47 O’Loughlin v O’Loughlin [2003] NSWCA 99 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR…
Vigolo v Bostin [2005] HCA 11
Citation 6

…s (1962) 107 CLR 9 Re Bourke deceased [1968] 2 NSWR 453 Re Fulop (1987) 8 NSWLR 679 Singer v Berghouse (No 2) (1994) 181 CLR Vigolo v Bostin (2005) 221 CLR 191 Yeomans v Yeomans and Anor [2011] QSC 344 COUNSEL: Solicitors for the applicant Self-represented respondent SOLICITORS: Macrossan & Amiet for the applicant Se…
Bladwell v Davis [2004] NSWCA 170
Citation 7 (Para 1)

…o be inconsistent with Singer’s case (see Bryson JA), ordinarily the needs of a widow would be given primacy (see Ipp JA at [2] and Stein AJA). [21][2004] NSWCA 170.…
Collins v McGain [2003] NSWCA 190
Citation 8 (Para 1)

…oo narrowly focussed. The court must take into account present and future needs including the need to guard against unforeseen contingencies. [10][2003] NSWCA 190.…
O'Loughlin v O'Loughlin [2003] NSWCA 99
Citation 9 (Para 1)

…stomed, and to provide her with a fund to meet any unforeseen contingencies.”[20] [19](1985) 2 NSWLR 65. [20]See also O’Loughlin v O’Loughlin [2003] NSWCA 99 at [20]-[22] per Davies AJA.…
Marshall v Carruthers [2002] NSWCA 47
Citation 10 (Para 1)

…It is true though that this “broad general rule” cannot be applied without modification in every case.[23] [23] Marshall v Carruthers [2002] NSWCA 47 at [65].…
Singer v Berghouse [1994] HCA 40
Citation 11 (Para 1)

…This is an objective question of fact to be determined by the judge at the date of the hearing.[7] [7] Singer v Berghouse (No 2) (1994) 181 CLR 201 at 211.5.…
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19
Citation 12 (Para 1)

…one or other of the parties bring to the application ought to have been made.[16] [16] Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ.…
Coates v National Trustees Executors & Agency Co Ltd [1956] HCA 23
Citation 13 (Para 1)

…in effect a jurisdictional question. This is to be determined as at the date of death.[5] [5] Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494.…
Ellis v Leeder [1951] HCA 44
Citation 14

…tes v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 Collins v McGain & Anor [2003] NSWCA 190 Collins v Mutton [2012] NSWSC 548 Ellis v Leeder (1951) 82 CLR 645 Grey v Harrison [1997] 2 VR 359 Luciano v Rosenblum [1985] 2 NSWLR 65 Manly v Public Trustee of Qld [2008] QCA 198 Marshall v Carruthers [2002]…

Legislation Cited

Succession Act 1981 (Qld) 41
2 mentions (from Para 1)

CITATION:	Tomarra v Tomarra [2019] QDC 72
PARTIES:	SALLY ANN TOMARRA (Applicant) v ERNEST KARL TOMARRA (Executor of the Estate of the late David John Tomarra) (Respondent)
FILE NO/S:	59/2018
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Mackay
DELIVERED ON:	10 May 2019
DELIVERED AT:	Mackay
HEARING DATE:	29 April 2019
JUDGE:	Smith DCJA
ORDER:	1. That pursuant to s 41 of the Succession Act 1981 (Q) adequate provision be made for the proper maintenance and support of Sally Ann Tomarra out of the estate of the late David John Tomarra by transfer to her of the ½ interest owned by the deceased in the house and land at 168 McIntyre Street, Calen in the State of Queensland more particularly described as Lot 3 on Registered Plan 708420 in the County of Carlisle, Parish of St Helens being Title Reference 20349173. 2. The Registrar of Titles is entitled to execute the transfer- Form 1 transferring the interest in the property to the applicant. 3. I make no order as to costs.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION AND MAINTENANCE – whether applicant left with insufficient provision. Succession Act 1981 (Q) s 41. Bladwell v Davis [2004] NSWCA 170 Clifford v Mayr [2010] NSWCA 6 Coates v National Trustees Executors andAgency Co Ltd (1956) 95 CLR 494 Collins v McGain & Anor [2003] NSWCA 190 Collins v Mutton [2012] NSWSC 548 Ellis v Leeder (1951) 82 CLR 645 Grey v Harrison [1997] 2 VR 359 Luciano v Rosenblum [1985] 2 NSWLR 65 Manly v Public Trustee ofQld [2008] QCA 198 Marshall v Carruthers [2002] NSWCA 47 O’Loughlin v O’Loughlin [2003] NSWCA 99 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Re Bourke deceased [1968] 2 NSWR 453 Re Fulop (1987) 8 NSWLR 679 Singer v Berghouse (No 2) (1994) 181 CLR Vigolo v Bostin (2005) 221 CLR 191 Yeomans v Yeomans and Anor [2011] QSC 344
COUNSEL:	Solicitors for the applicant Self-represented respondent
SOLICITORS:	Macrossan & Amiet for the applicant Self-represented respondent