Day v Peake (No 2) [2023] QDC 200 (2023) 3 QDCR 301

DISTRICT COURT OF QUEENSLAND CITATION: Day v Peake [No 2] [2023] QDC 200 PARTIES: LLOYD GORDON DAY (Applicant) v ROSEMARY MAY PEAKE as personal legal representative in the estate of DESMOND GUNSTON DAY (deceased) (Respondent) FILE NO: 53 of 2021 DIVISION: Civil PROCEEDING: Order ORIGINATING COURT: District Court at Rockhampton DELIVERED ON: 3 November 2023 DELIVERED AT: Gladstone HEARING DATE: On the papers; oral submissions on 1 November 2023 JUDGE: Clarke DCJ ORDER: 1. Order made as per draft, as amended CATCHWORDS: SUCCESSION – FAMILY PROVISION – Order for vacant possession of estate property - Costs LEGISLATION: Civil Proceedings Act 2011 (Qld) s 15 District Court Act 1967 (Qld) ss 68, 69 Uniform Civil Procedure Rules 1999 (Qld) r 658, 681, 700A Succession Act 1981 (Qld) ss 6, 41, 59 Trusts Act 1973 (Qld) ss 5, 96 CASES: Herrod v Johnston [2013] QCA 184, cited Sochorova v Commonwealth of Australia [2012] QCA 152, cited Fenton-Anderson & Anor v Power & Anor (No 3) [2020] QDC 317, considered -- 1 of 5 -- 2 Lorenz v McGreevy & Anor [2022] QDC 212, considered REPRESENTATIVES: Mr L.M. Kennedy of counsel instructed by MBA Lawyers for the Respondent [1] On 4 October 2023 orders were made where the application for further provision was dismissed, not having been granted leave to proceed out of time.1 At the time of judgment delivery, I invited submissions about the issues raised at paragraph [53] of the reasons for decision, including as to costs. There has been no effort by the unsuccessful applicant to make further submissions. [2] The further orders required only relate to compelling Lloyd Day to vacate the estate properties, and as to costs. Accordingly, there is no need for orders to address the issues at points 2 – 8 inclusive of paragraph [53] of the original judgment. Order for vacant possession [3] The respondent, as personal representative of her late father’s estate, has the legal power to dispose of the estate properties, relying on the provisions in the Succession Act 1981 (Qld) and Trusts Act 1973 (Qld). The respondent relevantly confirms that following the determination made on 4 October, there is no application for administration of the estate. [4] The issue about the limited power this court has to make orders to in respect of trust and succession matters has been the subject of previous consideration by other judges of this court. In Fenton-Anderson & Anor v Power & Anor (No 3)2 Porter KC DCJ confirmed that only the Supreme Court enjoyed the grant of general jurisdiction in estate matters by s 6 of the Succession Act 1981 (Qld). I am respectfully persuaded to agree with his Honour’s finding that the various specific provisions in s 68 of the District Court Act 1967 (Qld) (and on reliance upon the conferred power in s 69) govern the relevant jurisdiction in estate matters. In that case, his Honour was not minded to make the order sought because the power to order vacant possession was erroneously said to come from s 41 of the Succession Act 1981 (Qld), and there was no clear evidence the property 1 See Day v Peake [2023] QDC 178. 2 [2020] QDC 317. -- 2 of 5 -- 3 valuation sum came within the monetary limit of this Court. That situation does not prevail here. [5] I have also had regard to his Honour’s obiter comments in Waters v Odell 3. Further assistance is derived from considering the discussion about the jurisdiction of the District Court in an action for the administration of an estate by Loury KC DCJ in Lorenz v McGreevy & Anor4. In that case her Honour dismissed an application for a Beddoe Order because the action brought involved or arose out of the administration of an estate; her Honour was not satisfied that s 68 (1)(b)(vii) or section 69 of the District Court Act 1967 (Qld) conferred jurisdiction. That is not the type of order sought here. [6] In the circumstances of this case, in addition to confirming that no impediment arises because of the power the court is being asked to exercise, there is unchallenged evidence that the valuation of the Calliope properties falls within the monetary limit. [7] Here, I am prepared to accept the respondent’s submission: that s 6 of the Succession Act 1981 (Qld) only confers powers upon the Supreme Court; the District Court’s powers in respect of trust and succession matters are limited to that which is conferred by specific provisions of s 68 of the District Court Act 1967 (Qld); s 69 of the District Court Act 1967 (Qld) confers the powers and authorities of the Supreme Court on the District Court for the purposes of exercising the jurisdiction conferred under section 68 of that Act;5 the District Court is not a “Court” within the meaning of ss 5 and 96 of the Trusts Act 1973 (Qld).6 [8] On a consideration of those cases and legislative provisions, I am satisfied there is a power to seek the order sought here to recover possession of land, pursuant to s 68(1)(b)(xi) of the District Court Act 1967 (Qld), (and relying upon the implied power in s 69). The order sought is also consistent with r 5 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) and is permissible under r 658. [9] The applicant Lloyd Day has been given sufficient notice of the personal representative’s intention to have him vacate the Calliope properties so they could be sold for distribution 3 [2023] QDC 44. 4 [2022] QDC 212. 5 Ibid [18]. 6 Ibid [17]. -- 3 of 5 -- 4 of the estate. Notice was given on 26 August 2021 and 24 September 2021, and again prior to and after the trial of his claim for further provision. He has failed to do so. [10] I am satisfied, consistent with the findings of fact I made at the trial, that Lloyd Day simply continued to live at his parent’s place rent free for many years because of that familial relationship. No lease or licence of occupancy has consequently arisen. [11] Further to that, I made findings the unsuccessful applicant had benefitted from expenses being paid out of his father’s bank account (while he was being cared for in a nursing home and after he had died), and permitting the devaluation of the properties rather than improving them. I also found he had engaged in unconscionable conduct, including by obstructing the efforts of the personal representative to administer the estate. [12] The unsuccessful applicant could not be said to be taken by surprise. His brother Scott Day has agreed to vacate the properties consequent to his decision to withdraw his claim. Lloyd Day has not participated further in the proceeding following the delivery of judgment. [13] I consider it appropriate and in the interests of justice to make the order sought and to give Lloyd Day a period of fourteen (14) days from the publication of this order to vacate. Ancillary orders will be made in respect of personally owned goods and chattels left at the property. Costs [14] The discretionary statutory power to award costs is provided by s 15 of the Civil Proceedings Act 2011 (Qld) and given effect by Chapter 17A UCPR, specifically r 681 and r 700A. [15] I accept the argument advanced by counsel for the personal representative. The discretion to award costs is unfettered but must be exercised without caprice and having regard to only the relevant considerations.7 The basis of a costs order is compensatory, not punitive in nature. Therefore, the fact that an unsuccessful party is not legally represented or is impecunious or otherwise disadvantaged, is not of itself a ground for 7 Herrod v Johnston [2013] QCA 184 at [24]. -- 4 of 5 -- 5 refusing to make a costs order in favour of the successful party.8 The rules of the court also provide that a trustee (which includes a personal representative) may be entitled to have the costs of the proceeding that are not paid by someone else paid out of the fund held by the trustee.9 [16] Here, in addition to the issues identified at paragraphs [10] and [11] of these reasons, the original application was completely unmeritorious. Adverse findings were made about the failure to assist in the determination about the value of the estate property, that he withheld financial information, and otherwise unnecessarily incurred costs by adopting an obstinate position about his entitlement to all of the estate, to the exclusion of all other beneficiaries. [17] I am prepared the accept the opinion of the costs assessor, assessing an amount of $42,004.17 attributable to the unsuccessful applicant. [18] I find it appropriate to order costs against Lloyd Day in that amount, to be offset against his entitlement under the intestacy. The remainder will fall rateably to the residuary of the estate on sale of the properties, consistent with s 59 of the Succession Act 1981 (Qld). [19] I make the orders in terms of the draft, as amended. 8 Sochorova v Commonwealth of Australia [2012] QCA 152 at [17]. 9 Uniform Civil Procedure Rules r 700; Shaw v Tane (No 2) [2023] QSC 19 at [4]. -- 5 of 5 --