Underwood v Underwood

Case [2009] QSC 107

SUPREME COURT OF QUEENSLAND

CITATION:

Underwood v Underwood [2009] QSC 107

PARTIES:

PETA CHANEL UNDERWOOD
(First Applicant)
DEREK JOHN UNDERWOOD
(Second Applicant)
SCOTT ANDREW UNDERWOOD
(Third Applicant)
ANNETTE MARIE SHEPPARD
(Fourth Applicant)
v
LOUIS UNDERWOOD AND MARK WEDRAT in their capacity as executors of the estate of the late
PETER CHARLES UNDERWOOD
(First Respondent)
GREGORY PETER UNDERWOOD
(Second Respondent)

FILE NO/S:

55 of 2007

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

8 May 2009

DELIVERED AT:

Cairns

HEARING DATE:

14 November 2008

JUDGE:

Jones J

ORDER:

1. From the estate of Peter Charles Underwood (deceased), I order that the respondents’ pay the sum of $61,000 to the first respondent, Annette Underwood, as administrator ad litem, to hold the said sum on trust for the benefit of the estate of Peta Underwood (deceased).  The receipt of Annette Underwood shall be sufficient discharge for the respondents.
2. The claim of the second applicant, Derek John Underwood, is dismissed.
3. The claim of third applicant, Scott Andrew Underwood, is dismissed.
4. From the estate of Peter Charles Underwood (deceased) I order that the respondents pay to the fourth applicant, Annette Marie Shepherd, the sum of $30,000.
5. That the respondents pay to the first applicant costs fixed in the sum of $16,369.66.
6. That the respondents pay to the fourth applicant costs fixed in the sum of $44,391.65.
7. That the second applicant pay to the respondents costs fixed in the sum of $10,304.70, which sum may be deducted from the second applicant’s entitlement under the will of Peter Charles Underwood.
8. That the third applicant pay to the respondents costs fixed in the sum of $10,304.70, which sum may be deducted from the third applicant’s entitlement under the will of Peter Charles Underwood.
9. For the purposes of section 52(1)(e) of the Succession Act 1981, the rate of interest payable on any legacies shall be that rate as derived from time to time by the first respondents on the investment of the proceeds of sale of the property referred to as Granadilla in paragraph 3(f) of the last will of the deceased.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION AND MAINTENANCE –INDEMNITY COSTS – whether rejection of Calderbank offer unreasonable – particular difficulties in predicting family provision claims

Succession Act 1981 s 41(1), (2), s 66
Supreme Court of Queensland Act 1991 s 114(1)
Uniform Civil Procedure Rules 1999 R 660(1)(a) and (b), R 661, R 667, R 668

Barns v Barns (2003) 214 CLR 169
Bowyer v Woods [2007] SASC 327
CAG v Public Trustee of Queensland [2008] QCA 252
Calderbank v Calderbank [1996] Fam 93
Coates v National Trustees and Executors Agency Co Ltd (1956) 95 CLR 494 (applied)
Coffee v Bennett [1961] VR 246
Dobb v Hackett (1993) 10 WAR 532
Re Findlay (1964) NZLJ 170
Kalejas v The Minister for Justice and Customs (2001) 111 FCR 442
King v Condon [2009] QSC 67
Kozak v Matthews [2007] QSC 203
Latoudis v Casey (1990) 170 CLR…

Continue reading Underwood v Underwood

Sign in free to access the full text

Details
AGLC
Underwood v Underwood [2009] QSC 107
Case
[2009] QSC 107
Decision Date

CaseChat Overview and Summary

The case of Underwood v Underwood involved multiple applicants seeking family provision and maintenance from the estate of Peter Charles Underwood, deceased. The applicants included Peta Underwood, Derek John Underwood, Scott Andrew Underwood, and Annette Marie Shepherd. The dispute centred around the distribution of the deceased’s estate and whether the applicants were entitled to additional financial support beyond what was stipulated in the will. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court included determining the appropriate family provision and maintenance payments to the applicants, assessing the reasonableness of rejecting a Calderbank offer, and addressing the particular difficulties in predicting family provision claims. The court had to balance the statutory provisions of the Succession Act 1981 against the equities of the case, particularly regarding the deceased’s intentions and the needs of the applicants.

The court held that Peta Underwood was entitled to $61,000, while Annette Marie Shepherd was awarded $30,000. The claims of Derek John Underwood and Scott Andrew Underwood were dismissed. The court also ordered that the respondents pay costs to the successful applicants and that the unsuccessful applicants pay costs to the respondents. The court reasoned that the rejection of the Calderbank offer was not unreasonable given the complexities and uncertainties involved in family provision claims. The final orders included specific monetary awards to the successful applicants, cost orders, and a determination of the interest rate applicable to any legacies.

In summary, the court provided significant financial support to two of the applicants while dismissing the claims of the other two. The decision also addressed the allocation of costs, reflecting the court’s assessment of the reasonableness of the offers and counteroffers made during the proceedings.

Orders

Orders of the court

1. From the estate of Peter Charles Underwood (deceased), I order that the respondents’ pay the sum of $61,000 to the first respondent, Annette Underwood, as administrator ad litem, to hold the said sum on trust for the benefit of the estate of Peta Underwood (deceased). The receipt of Annette Underwood shall be sufficient discharge for the respondents.

2. The claim of the second applicant, Derek John Underwood, is dismissed.

3. The claim of third applicant, Scott Andrew Underwood, is dismissed.

4. From the estate of Peter Charles Underwood (deceased) I order that the respondents pay to the fourth applicant, Annette Marie Shepherd, the sum of $30,000.

5. That the respondents pay to the first applicant costs fixed in the sum of $16,369.66.

6. That the respondents pay to the fourth applicant costs fixed in the sum of $44,391.65.

7. That the second applicant pay to the respondents costs fixed in the sum of $10,304.70, which sum may be deducted from the second applicant’s entitlement under the will of Peter Charles Underwood.

8. That the third applicant pay to the respondents costs fixed in the sum of $10,304.70, which sum may be deducted from the third applicant’s entitlement under the will of Peter Charles Underwood.

9. For the purposes of section 52(1)(e) of the Succession Act 1981, the rate of interest payable on any legacies shall be that rate as derived from time to time by the first respondents on the investment of the proceeds of sale of the property referred to as Granadilla in paragraph 3(f) of the last will of the deceased.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.