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Wilkinson v Wilkinson

Wilkinson v Wilkinson

Case [2009] QSC 191 14 July 2009

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[2009] QSC 191

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DOUGLAS J

No 6204 of 2009

FIONA JEAN WILKINSON	Applicant
and
JEAN GWYNETH WILKINSON	Respondent

BRISBANE

..DATE 14/07/2009

ORDER

HIS HONOUR: This is an unusual application for pre-litigation disclosure and pre-litigation interrogatories.

The application arises out of an agreement to compromise proceedings between the applicant and the respondent which was entered into in December 2003. The respondent pursuant to that deed, agreed to accept not less than $1.6 million as a distribution or a franked dividend from the winding up of some companies and trusts referred to in the deed. She also agreed to make certain investments to the value of $1.6 million and to refrain from giving gifts in excess of $10,000 per annum to her son and other people listed in clause 5.4 of the deed. She also agreed to make a will in terms of annexure B to the deed, which gives certain items of personalty to the applicant, her daughter, and bequeaths the rest and residue of her estate as to one half for her son and the other half for her daughter, who is as I have said, the applicant in these proceedings.

The deed, unfortunately, did not include any mechanism by which the respondent would advise the applicant that the terms had been carried out. It is now five and a-half years, approximately, since the deed was executed and there have been several attempts by the applicant through her solicitors, to verify that the terms of the compromise have been carried out. Recently the respondent has confirmed by a letter of 7 July 2009 that she used apparently professional advice to construct an investment portfolio of shares and securities in 2004, but she has not provided any documentary evidence of what she did there, nor has she provided responsive answers to other questions raised with her by the applicant's solicitors. For example, on 19 February 2007, the solicitors asked her to confirm that she had used the monies paid to her under the Deed of Compromise, to purchase investments in accordance with it, for details of the investments acquired to compile her portfolio envisaged by the deed, the name and address of the investment professional whom she engaged and details of the investments presently held in the portfolio. Some of that information was provided in the recent letter received on 8 July 2009 and dated 7 July 2009. But other documents sought pursuant to a letter of 24 April 2009 including correspondence between the respondent and the body called, "The Investment Professionals" or documents in relation to those investments, and a codicil to her will dated 11 December 2003 and copies of any new will or wills made by her after 11 December 2003 were not provided.

The solicitors also provided a draft set of interrogatories in respect of the performance by the respondent of her obligations under the deed. They remain unanswered and the documentary information sought also remains unprovided.

The applicant's legitimate concern…

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 Wilkinson v Wilkinson

Details

AGLC: Wilkinson v Wilkinson [2009] QSC 191
Case: [2009] QSC 191
Decision Date: 14 July 2009

CaseChat Overview and Summary

In the Supreme Court of Queensland, Fiona Jean Wilkinson, the applicant, filed an application against Jean Gwyneth Wilkinson, the respondent, seeking pre-litigation disclosure and interrogatories. The case arises from an agreement to compromise proceedings executed in December 2003, where the respondent agreed to accept a certain sum as a distribution or dividend and make specific investments. The applicant seeks to verify whether the respondent has fulfilled her obligations under the deed, as there has been insufficient communication from the respondent regarding the investments made and other terms of the agreement.

The court was required to determine whether the applicant had a legitimate need for the pre-litigation disclosure and interrogatories and if the application was not merely a fishing expedition. The court considered the urgency of the situation, given the potential impact of limitation periods and the respondent's age, and whether the application fell within the equitable jurisdiction of the court to grant discovery. Additionally, the court needed to assess whether the pre-litigation interrogatories were permissible under the rules of court.

The court found that there was sufficient urgency to warrant the pre-litigation disclosure, considering the passage of time since the execution of the deed and the lack of information provided by the respondent. The court also determined that the application was not a fishing expedition but a genuine attempt to verify the respondent's compliance with the deed. The court granted the application for pre-litigation disclosure and interrogatories, noting that the applicant needed the information to determine whether to commence a proceeding based on a potential breach of the deed. The court also considered it appropriate to make an order for costs, as the respondent did not attend the hearing.

The court ordered that the respondent provide the documents identified in the correspondence from the applicant's solicitors dated 24 April 2009, and deliver answers to the interrogatories within 21 days. The order also specified that the interrogatories should be transcribed into the form of the order and attached to it for clarity, especially considering the respondent's age. The court further directed the applicant's solicitor to email an amended draft order to the court's associate, incorporating the suggested changes.

Orders