Wilson v Strzelcykowski - [2016] QCA 227

[2016] QCA 227

COURT OF APPEAL

PHILIP McMURDO JA

Appeal No 7681 of 2016
SC No 5241 of 2016
SC No 6557 of 2015

JOHN ANDREW WILSON Applicant

CHRISTINE STRZELCYKOWSKI
LIONEL STRZELCYKOWSKI
GEORGE STRZELCYKOWSKI Respondents

BRISBANE

FRIDAY, 9 SEPTEMBER 2016

JUDGMENT

PHILIP McMURDO JA: These two applications arise from litigation between the applicant Mr Wilson, and his siblings, about their late father’s estate and a house which is co-owned by the applicant, each of the three respondents and the father’s estate in equal one-fifth shares.

There are two proceedings in the trial division from which the present applications come. In BS5241 of 2016 orders were made on 6 June 2016 for the appointment of trustees for sale. The property has not yet been sold; Mr Wilson continues to live in the house as he has for many years.

The other case – BS6557 of 2015 – concerns the validity of the father’s will dated 17 January 2012 under which the residue of the estate was given to Mr Wilson. On 3 July 2015 the respondents commenced this solemn form proceeding contending that it was a will which was made in 2000 under which the estate was given to Mr Wilson and the respondents in equal shares which was the last valid will of the deceased.

Although that case was on foot, Mr Wilson applied for probate of the 2012 will and through the registry a grant was made to him in common form in September 2015. On 6 June 2016 the same judge who made the orders for the sale of the house made interlocutory orders in the solemn form proceeding. It was ordered that – amongst other things – Mr Wilson should bring into the registry the common form grant of probate and that until further order there be no further steps in the administration of the estate. There were other orders made for interlocutory steps such as pleadings, affidavits and a mediation.

In the solemn form proceeding there is an application now to the Court of Appeal seeking a stay of those orders. That application was filed on 18 August beyond the appeal period. There is no application for an extension of time to appeal. There is presently no appeal to this court and there is therefore no basis for this court to grant a stay. In any case there is nothing in Mr Wilson’s material or in what he has said which suggests any basis for an appeal and there were no circumstances suggested by him which would warrant a stay of any of these orders pending an appeal. Indeed, one of those orders – namely that for a mediation – is an order which Mr Wilson wishes to have performed by the parties but it is presently resisted by the respondents who say that they are without funds to attend a mediation. For these reasons the application in proceedings 6557 of 2015 must be refused.

In the other proceeding – that for the sale of…

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 Wilson v Strzelcykowski

Details

AGLC: Wilson v Strzelcykowski [2016] QCA 227
Case: [2016] QCA 227
Decision Date: 9 SEPTEMBER 2016

CaseChat Overview and Summary

In the case of Wilson v Strzelcykowski, the applicants, Mr. Wilson and his siblings, were involved in a dispute over their late father's estate and a house co-owned by them. The case was heard in the Court of Appeal, presided over by Justice Philip McMurdo. The applicants sought a stay of orders made in two separate proceedings concerning the estate and the house. The first proceeding involved the appointment of trustees for the sale of the house, while the second proceeding was a challenge to the validity of the father's will.

The legal issues at hand were whether the orders made in the two proceedings should be stayed and whether costs should be awarded to the parties. The Court of Appeal examined the applicants' arguments for a stay and found them to be without merit. The Court noted that until an appeal was lodged, there was no basis for granting a stay. Furthermore, the applicants' material and arguments did not suggest any tenable grounds for appeal. In the case of the house sale, the Court acknowledged that the applicants' desire to retain the house and purchase their siblings' shares should not delay the realisation of the property. Therefore, the Court refused both applications for a stay.

Regarding the costs, the Court held that the trustees were entitled to their reasonable costs and expenses incurred in relation to their appointment, to be paid from the proceeds of the sale. The Court ruled that the costs of the trustees in the application should be recoverable as costs and expenses according to the order made on 6 June 2016. In the second proceeding, the Court found that the application for a stay was without merit and that the respondent to such an application would ordinarily be given its costs. However, the Court considered the particular circumstances of the case, including the relatively small estate and the high costs of litigation. The Court concluded that it would be unjust to visit the applicants with the costs of the applications and ordered that the costs of the parties in the application be each party's costs in the proceeding.

Orders