Treadwell v Treadwell - [2021] QDC 44

DISTRICT COURT OF QUEENSLAND

CITATION:	Treadwell v Treadwell [2021] QDC 44
PARTIES:	EDEN HOPE TREADWELL BY HER LITIGATION GUARDIAN JUNE AVERY & JUNE AVERY (First Applicant) & RORY BEAU TREADWELL BY HIS LITIGATION GUARDIAN (Second Applicant) & V CHRISTOPHER DAVID TREADWELL & JILLIAN RUTH CARS AS EXECUTORS OF MAXWELL DAVID TREADWELL, DECEASED (Respondent)
FILE NO/S:	BD 245/20
DIVISION:	Civil
PROCEEDING:	Applications
ORIGINATING COURT:	District Court
DELIVERED ON:	22 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2021
JUDGE:	Burnett AM, DCJ
ORDER:	The application for leave to hear and determine the application for provision for Eden Hope Treadwell and Rory Beau Treadwell from the estate of the late Maxwell David Treadwell pursuant to Part 4 Succession Act 1981 is refused. The Litigation Guardian for the applicants pay the respondents’ costs of and incidental to the Originating Application either as agreed or in default of agreement as assessed on the standard basis.
CATCHWORDS:	SUCCESSION – FAMILY PROVISION – application of grandchildren of deceased – generation skipping application – whether grandchild satisfied definition of “dependent” – meaning of “substantially” – “maintained” – “supported” – Succession Act 1981 (QLD) s 41(1)
SUCCESSION – FAMILY PROVISION – Limitation period – where application for family provision brought three months out of time – unexplained seven month delay
SUMMARY DISMISSAL – executor seeks summary dismissal – application doomed to fail.
LEGISLATION	Succession Act 1981 (Qld) s 40, s 41
Uniform Civil Procedure Rules1999 (Qld) r 658
CASES	Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 Chapple v Wilcox (2014) 87 NSWLR 646 Higgins v Higgins [2005] 2 Qd R 502 Hills v Chalk [2009] 1 Qd R 409 Lohse v Lewis & Anor [2004] 2 Qd R 648 McElligott v McElligott [2014] QDC 178 Re State Public Services Federation; ex-parte Attorney-General (WA) [1993] 178 CLR 249 Singer v Berghouse [1994] 181 CLR 201 Vanvalen v Neaves [2005] 65 NSWLR 268 Vigolo v Bostin [2005] 221 CLR 191 William v Aucut [2000] 2 NZLR 479
COUNSEL:	D Morgan (for the Applicant) J Otto (for the Respondent)
SOLICITORS:	Stone Group Lawyers Pty Ltd Macrossan & Amiet Solicitors

Introduction

The respondents apply pursuant to UCPR s 658 for dismissal of an originating application made by each of the first and second applicants (claimants) for proper provision to be made from the estate of the late Maxwell David Treadwell, pursuant to Part 4 Succession Act 1981.
Background
The claimants are grandchildren of the deceased. The deceased was born on 27 December 1929 and died on 11 July 2019 aged 89 years. He left a will dated 11 July 2008. The will appointed the executors as joint executors and trustees of his will. In essence, the will provided for his estate to be shared as tenants in common between each of his five children. The claimants are children of the deceased’s son, Michael Treadwell. They are aged 12 and 11 respectively. The claimants are represented by their litigation guardian, June Avery[1] (the Guardian). The Guardian is the…

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 Treadwell v Treadwell

Details

AGLC: Treadwell v Treadwell [2021] QDC 44
Case: [2021] QDC 44
Decision Date: 22 March 2021

CaseChat Overview and Summary

The case of Treadwell v Treadwell involves the grandchildren of the deceased, Maxwell David Treadwell, seeking provision from his estate under the Succession Act 1981 (QLD). The claimants, represented by their litigation guardian, June Avery, argue that they were dependent on the deceased for maintenance and support. The respondents, who are the deceased's children, have applied for the dismissal of the originating application under UCPR s 658. The primary legal issue before the court is whether the grandchildren satisfy the definition of "dependent" under s 41(1) of the Succession Act 1981 and, if so, whether they were maintained or supported "substantially" by the deceased.

The court examined the evidence presented by both parties and considered the nature of the relationship between the claimants and the deceased. The Guardian's evidence was largely speculative and contested by the father and the deceased's siblings. The court found that the claimants spent very limited time with the deceased and that their contact was sporadic and inconsistent. The court concluded that the claimants did not satisfy the definition of "dependent" and were not maintained or supported "substantially" by the deceased. The court found that the application was frivolous and vexatious and an abuse of process, and therefore dismissed the application for provision.

The court ordered that the application for leave to hear and determine the application for provision for Eden Hope Treadwell and Rory Beau Treadwell from the estate of the late Maxwell David Treadwell pursuant to Part 4 Succession Act 1981 is refused. The litigation guardian for the applicants was ordered to pay the respondents' costs of and incidental to the Originating Application either as agreed or in default of agreement as assessed on the standard basis.

Orders

Orders of the court

The application for leave to hear and determine the application for provision for Eden Hope Treadwell and Rory Beau Treadwell from the estate of the late Maxwell David Treadwell pursuant to Part 4 Succession Act 1981 is refused.

The Litigation Guardian for the applicants pay the respondents’ costs of and incidental to the Originating Application either as agreed or in default of agreement as assessed on the standard basis.

Background

Background to the litigation

The respondents apply pursuant to UCPR s 658 for dismissal of an originating application made by each of the first and second applicants (claimants) for proper provision to be made from the estate of the late Maxwell David Treadwell, pursuant to Part 4 Succession Act 1981.Background The claimants are grandchildren of the deceased. The deceased was born on 27 December 1929 and died on 11 July 2019 aged 89 years. He left a will dated 11 July 2008. The will appointed the executors as joint executors and trustees of his will. In essence, the will provided for his estate to be shared as tenants in common between each of his five children. The claimants are children of the deceased’s son, Michael Treadwell. They are aged 12 and 11 respectively. The claimants are represented by their litigation guardian, June Avery[1] (the Guardian). The Guardian is the mother of the claimants and the former spouse of Michael Treadwell. [1]Also known as Leah Jade Sullivan and Leah Jade Treadwell. Aside from Michael Treadwell’s siblings, Jillian Ruth Cars aged 58, Terry Malcom Treadwell aged 54 and Andrew John Treadwell aged 47, there are no other persons having a prima facie claim upon the estate of the deceased. Michael Treadwell and the Guardian separated in approximately April 2012. The breakdown of their relationship appears to have been acrimonious. In the 12 months between separation in April 2012 until orders were made in May 2013 Michael had no overnight access or visits with the claimants and they did not stay with him during that period. A court order was made on 17 May 2013 providing that the claimants spend time with him in week one from 9.00am until 5.00pm Saturday and in week two from 9.00am Saturday until 5.00pm Sunday. The effect of the order was that the claimants spent only one overnight stay with Michael Treadwell each fortnight. The arrangements provided for in the order of 17 May 2013 continued until further order was made on 26 May 2017 when access was enlarged to provide for the claimants to spend every second weekend from 3.00pm Friday until 5.00pm Sunday with Michael Treadwell, together with parts of the school holidays. Despite those orders, those arrangements were not given effect to. The Guardian refused the claimant’s regular contact with Michael Treadwell and consequently contravention applications were made in respect of the orders that had been made in the Federal Circuit Court. The practical effect was that the claimants spent less than three nights per fortnight with Michael Treadwell and ultimately, as a result of the contraventions of the court orders, Michael Treadwell had no contact with the claimants at all between approximately June 2018 and September 2018 and again between January 2019 and April 2019. As Michael resided at the same address as the deceased, the effect was that the claimants had no contact with the deceased during those periods.[2] As a result of matrimonial proceedings, a shared parental responsibility arrangement has now been entered into providing each with equal shared parental responsibility and 50 per cent care during school holidays. Otherwise, Michael has access to the claimants for four nights and six days a fortnight during school time. [2]Accepting the claimants case “at its best” it appears that in the 7 years and a few months between separation of the Guardian and Michael and the deceased’s death (approx. 2600 days) the claimants spent approximately 200 nights with Michael during which time they may have had contact with the deceased and potentially been maintained or supported by him (assuming full compliance with Family Court orders although on Michael’s evidence this did not occur).

Evidence

Evidence Before The Court

The claimants base their claim upon the fact that on the occasions they visited Michael Treadwell they resided “under the roof of the deceased” and the assertion that “they were provided for financially by the deceased”. As I will explain later those assertions don’t bear up under close examination.The Evidence The material filed in the application fell into two parts. First was affidavit evidence from the Guardian supporting the claimants’ claim. As the claimants are children aged 11 and 12, understandably they did not swear affidavits in the application. Second was material for the respondent which compromised evidence from each of the deceased’s surviving children deposing to matters of direct observation by them concerning events related to the relationship of the claimants with the deceased. The Guardian and the claimants’ father have been the subject of protracted and bitter matrimonial proceedings extending over many years. The relationship between them was, and appears to continue to be, toxic. Understandably in the circumstances the claimants’ father and the Guardian had limited interaction. That extended to the limited interaction between the claimants and their father and in turn the deceased. Significantly, the Guardian did not depose to witnessing any direct interaction between the claimants and the deceased. Much of her evidence directed to the matter of maintenance and support was speculative and not founded in fact. It was largely contested by direct evidence of the father and in some instances by his siblings. Even if the claimants were to provide evidence it is unlikely anything these children could depose to would displace the sworn testimony of the respondent adults on important matters concerning housing and financial arrangements, holidays and the nature of the contact between the claimants and the deceased on the limited occasions there was contact.Summary dismissal UCPR s 658 permits the court to make at any stage of a proceeding, on the application of a party, any order including judgment that the nature of the case requires. Here the executors seek dismissal of the proceedings. In considering an application of this kind in the context of Part 4, Family Provision, Succession Act 1981, White J in Higgins v Higgins [2005] 2 Qd R 50 noted[6]:“[16]The often quoted statement of Barwick CJ in General Steel at 129 referring with approval to observations by Dixon J in Dey v Victorian Railways Commissioners continues to provide guidance as to the proper approach to an application to dismiss proceedings summarily. After extracting some expressions from the authorities His Honour said at 129 – 130:‘As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked in others in cases founded on statutory rules of court…the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: ‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. …But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’ Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possible succeed.”[6]At [16].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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