WXW v KZY

Case [2025] QSC 138

SUPREME COURT OF QUEENSLAND

CITATION:

WXW v KZY [2025] QSC 138

PARTIES:

WXW

(applicant)

v
KZY

(first respondent)

JZV

(second respondent)

FILE NO:

693 of 2024

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 June 2025

DELIVERED AT:

Brisbane

HEARING DATES:

2 June 2025 and 6 June 2025

JUDGE:

Muir J

ORDERS:

1.   The declarations sought in paragraphs [1] and [2] of the Amended Originating Application filed 14 March 2025 (“Amended Originating Application”) are refused.

2.   The Court declares that, on a proper construction of clause 6 of the Will of the deceased made 10 September 2001, no right of residence was created.

3.   The application for the appointment of statutory trustees in paragraphs [3] to [8] of the Amended Originating Application is adjourned to a date to be fixed.

4.   There be no order as to costs.

CATCHWORDS:

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – where the applicant and respondents are registered co-owners of a property as tenants in common in equal shares pursuant to the terms of their father’s will – where the applicant and respondents are elderly siblings – where the applicant and first respondent agreed, as a matter of fact, that they had a right to reside in the Property under the Will – where the proper construction of the Will is a matter of law to be determined by the Court – whether, as a matter of construction, the Will grants the applicant and first respondent a right to reside in the Property

SUCCESSION – CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS – CONSTRUCTION GENERALLY – ASCERTAINMENT OF TESTATOR’S INTENTION – GENERALLY – where the applicant and first respondent lived harmoniously at the Property for 40 years – where the first respondent was convicted and punished for assaulting the applicant and causing him bodily harm – where the applicant seeks a declaration that it was an implied condition of a right to reside in the Will that the first respondent permit the applicant to peacefully reside and enjoy the Property, and that the first respondent would not disturb or otherwise interfere with the applicant’s possession, occupation and enjoyment of the Property – where the applicant seeks a declaration that by reason of the assault, the first respondent’s right to reside has been terminated – whether the declarations should be made

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – GENERALLY – where the applicant seeks an order that statutory trustees for the sale be appointed under s 38(1) of the Property Law Act 1974 (Qld) – whether statutory trustees for sale should be appointed over the Property

Domestic and Family Violence Protection Act 2012 (Qld)
Property Law Act1974 (Qld), s 38
Succession Act 1981 (Qld), s 33C
Uniform Civil Procedure Rules 1999 (Qld), r 150

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered
Banque Commerciale SA (in liq) v Akhil Holdings Ltd

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AGLC
WXW v KZY [2025] QSC 138
Case
[2025] QSC 138
Decision Date

CaseChat Overview and Summary

The case of WXW v KZY involved a dispute between siblings, WXW and KZY, who were co-owners of a property as tenants in common. They sought various declarations and orders in relation to the property, which they had inherited from their father. The central issues revolved around the interpretation of their father's will, specifically whether the will granted them a right to reside on the property, and if so, whether it was a joint or joint and several right. Furthermore, WXW sought a declaration that KZY's right to reside had been terminated due to an assault he had committed against WXW.

The court had to determine whether the will contained a right for the applicants to reside on the property, and if such a right existed, whether it was a joint or joint and several right. The court also had to consider whether the assault by KZY had terminated his right to reside on the property. The court considered the language of the will, the circumstances surrounding its execution, and the history of the relationship between the siblings.

The court found that the will did not contain a right for the applicants to reside on the property. The court also found that even if such a right existed, it would be a joint right, not a joint and several right. Furthermore, the court found that KZY's assault on WXW did not terminate his right to reside on the property. The court adjourned the application for the appointment of statutory trustees for sale of the property to a later date.

In conclusion, the court refused the declarations sought by WXW and found that there was no right of residence created by the will. The court also found that KZY's right to reside on the property had not been terminated by his assault on WXW. The application for the appointment of statutory trustees for sale of the property was adjourned to a later date. There was no order as to costs.

Orders

Orders of the court

1. The declarations sought in paragraphs [1] and [2] of the Amended Originating Application filed 14 March 2025 (“Amended Originating Application”) are refused.

2. The Court declares that, on a proper construction of clause 6 of the Will of the deceased made 10 September 2001, no right of residence was created.

3. The application for the appointment of statutory trustees in paragraphs [3] to [8] of the Amended Originating Application is adjourned to a date to be fixed.

4. There be no order as to costs.

Background

Background to the litigation

Before turning to the issue of the implication of rights, it is clear that the preliminary issue for this Court is, on a proper construction of the Will: (a)Does clause 6 contain a right for the applicant and the first respondent to reside at the Property; and(b)If such a right exists, is it a joint right or a joint and several right.Relevant facts I turn firstly to the terms of the Will and the known circumstances leading up to the execution of the Will. The Property was purchased by the deceased sometime after he returned from serving in World War II. He built the house that currently stands on the Property, and the family resided at the Property from that time. It is not entirely clear, but it seems that the children left home at various times. The deceased and his wife (the mother of his three children who are the parties to this proceeding) divorced in about 1981. As part of the property settlement, the deceased was required to pay his ex-wife an amount equal to 75% of the value of the Property. The deceased did not have these funds and was unable to obtain a loan in his own name, so each of his children became co-borrowers on the loan to assist. In about 1981, the first respondent started living at the Property on a permanent basis following his own divorce and a period of working away. The applicant also moved back to the Property and resided in the flat under the house. The deceased, the applicant and first respondent each paid one-third towards the repayment of the loan over the Property. This took five years to repay. The men also equally shared the rates, insurance and utilities for the Property, although I note that the first respondent contends he and the deceased also completed and paid for all of the maintenance and general upkeep of the Property. In 1994, the first respondent suffered a workplace accident which resulted in a permanent brain injury, deafness in one ear, a back injury and mild nerve palsy on the left side of his face. The applicant and the first respondent resided with the deceased at the Property from 1981 until around 2007, when their father was moved into a nursing home. The brothers remained at the Property and continued to live there together after their father’s death in 2009. The applicant and the first respondent both understood that each had a right of residence by the provisions of their father’s Will. Together, they paid the rates, insurance and maintenance costs for the Property in equal shares. They shared these expenses until the applicant moved out in November 2021. The first respondent has paid the full cost of these outlays since. The first respondent resides on the upper floor of the house on the Property and the applicant (formerly) resided on the ground floor. Both men shared access to the house by a side door and shared laundry facilities in a bathroom on the ground floor. That bathroom also provided access to the applicant’s bedroom by a doorway. As a result of the altercation between the brothers in November 2021 and the consequential Protection Order, the first respondent now accesses the upper floor by the front door.The assault

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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