White v White

[2021] QDC 321

DISTRICT COURT OF QUEENSLAND

CITATION:

White v White [2021] QDC 321

PARTIES:

NICOLE MAREE WHITE by her Litigation Guardian, THE PUBLIC TRUSTEE OF QUEENSLAND under Part 4 Succession Act 1981 (Qld)

(Applicant)

v

ADAM STEVEN WHITE as Executor of the Will of Janice Marie White, Deceased

(Respondent)

FILE NO:

2245/20

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2021

JUDGE:

Porter QC DCJ

ORDER:

1.   The Application filed 3 December 2021 is adjourned for further hearing to 22 February 2022; and

2.   Costs are reserved.

LEGISLATION:

Guardianship and Administration Act 2000 (Qld), s.11, Schedule 1

Public Trustee Act 1978 (Qld), s. 59

Succession Act 1981 (Qld), s. 41

CASES:

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286

Watts v The Public Trustee of Queensland [2010] QSC 410

COUNSEL:

I. Klevansky for the Applicant

SOLICITORS:

The Official Solicitor to The Public Trustee for the Applicant

1. This is an application for the Court, pursuant to s. 59 Public Trustee Act 1978 (Qld), to sanction a settlement reached by the Public Trustee, on behalf of the applicant, of her family provision application (FPA) and for final orders of this Court giving effect to that settlement. 

2. For the purposes of making orders on Ms Whites’ FPA, the appropriate approach for a Court to take in relation to an application to sanction a compromise of the proceedings was set out in Watts v The Public Trustee of Queensland [2010] QSC 410, approved by the Court of Appeal in Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286:

   “[13]In the second case Hadley v McNamara re the Estate of Mary Anne McNamara (unreported, NSWSC, 7 December 2005) Young J pointed to the change wrought by the decision of the High Court, he said:-

   ‘In former times the court used to look at these applications as if they were discretionary matters and seek to work out whether the court had jurisdiction. It is now clear that that is the wrong approach under the Family Provision Act and that if the parties agree to settle proceedings under the Family Provision Act, and there is no other interest involved, ordinarily the court should merely make the orders in accordance with the terms of settlement. There will, of course, be the odd exception where it clearly appears on the face of it that there is no jurisdiction in the sense that the plaintiff has no need of provision.’

   [14] The point was further considered by the Supreme Court in Western Australia in Schaechtele v Schaechtele ([2008] WASC 148) where Le Miere J considered (at para 18):-

   ‘This Court cannot make an order giving effect to the proposed settlement unless the Court thinks that such provision should be made out of the estate of the deceased for the proper maintenance or support of the plaintiff. But that does…