SUPREME COURT OF QUEENSLAND
CITATION:
West & Ors v Blackgrove & Anor [2012] QCA 321
PARTIES:
ROBERT JOHN WEST
(first appellant)
JOY LORRAINE WEST
(second appellant)
THE ESTATE OF THE LATE DORIS JEAN WEST
(third appellant)
v
BETTY JUNE BLACKGROVE
(first respondent)
KEITH WARREN WEST
(second respondent)FILE NO/S:
Appeal No 5629 of 2012
SC No 8861 of 2009DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
23 November 2012
DELIVERED AT:
Brisbane
HEARING DATE:
7 November 2012
JUDGES:
Holmes and Muir JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. The appeal be allowed.
2. The judgment of the primary judge be varied so that paragraph 7 thereof provides: “7. There be no order as to the costs of the originating application.”.
CATCHWORDS:
SUCCESSION – ADMINISTRATION OF ESTATE – DISTRIBUTION – MATTERS RELATING TO BENEFICIARIES – where first appellant and respondents surviving children of testatrix – where probate of will granted to first appellant – where second appellant wife of first appellant – where residential Thornlands property of testatrix registered in the name of second appellant at time of her death – where respondents filed an originating application in the Supreme Court claiming various matters against the first appellant with respect to the testatrix’s will, his power of attorney, and the Thornlands property – where application adjourned to civil list – where various legal correspondence was exchanged between appellants and respondents who made various allegations against each other – where interlocutory application came before Supreme Court – where orders made with respect to providing monetary figures and documentation – where appellants filed application claiming, inter alia, that respondents’ applications be struck out – where Supreme Court judge ordered matter be mediated – where no such mediation took place – where respondents applied for further orders in relation to revoking the grant of probate, removing the first appellant as trustee under the will, and disclosure – where matter set down for two day trial – where many issues where abandoned or simplified at trial – where appellants submitted respondents delayed sale of Thornlands property by, inter alia, threatening and lodging caveats – where appellants submitted this delay caused loss – where primary judge held that property could have been sold at any time as it was registered in second appellant’s name – where primary judge dismissed the respondents’ originating application with no order as to costs – whether the primary judge erred in dismissing first appellant’s claim for damages arising from the diminution in value of the property as a result of respondents preventing its earlier sale – whether the primary judge erred in hearing an application filed by the respondents rather than dismissing it peremptorily and ordering costs for the appellants
Uniform Civil Procedure Rules 1999 (Qld), r 681(1)
Continue reading West v Blackgrove
Sign in free to access the full text
- AGLC
- West & Ors v Blackgrove & Anor [2012] QCA 321
- Case
- [2012] QCA 321
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the primary judge erred in dismissing the first appellant's claim for damages arising from the diminution in value of the Thornlands property and whether the primary judge erred in hearing the respondents' application rather than dismissing it peremptorily and ordering costs for the appellants. The court considered whether the primary judge applied the correct legal principles in dismissing the claim for damages and whether the primary judge erred in not dismissing the respondents' application peremptorily and ordering costs for the appellants. The court found that the primary judge erred in dismissing the claim for damages, as the appellants had established a prima facie case for damages due to the respondents' actions in delaying the sale of the property. The court also found that the primary judge erred in not dismissing the respondents' application peremptorily and ordering costs for the appellants, as the application was an abuse of process.
The appeal was allowed, and the judgment of the primary judge was varied to provide that there be no order as to the costs of the originating application. The court found that the primary judge had erred in dismissing the first appellant's claim for damages and in not dismissing the respondents' application peremptorily and ordering costs for the appellants. The court held that the appellants had established a prima facie case for damages due to the respondents' actions in delaying the sale of the property, and that the respondents' application was an abuse of process. The final orders were that the appeal be allowed and that the judgment of the primary judge be varied to provide that there be no order as to the costs of the originating application.
Orders
Orders of the court
1. The appeal be allowed.
2. The judgment of the primary judge be varied so that paragraph 7 thereof provides: “7. There be no order as to the costs of the originating application.”.
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.