Culpitt ATF The Estate of Leanoard James Culpitt v Funnell [2015] QCAT 372

CITATION: Culpitt ATF The Estate of Leanoard James Culpitt v Funnell [2015] QCAT 372 PARTIES: Eric John Culpitt ATF The Estate of Leanoard James Culpitt (Applicant) v Wayne Funnell (Respondent) APPLICATION NUMBER: MCDO844-14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: On the papers HEARD AT: Southport DECISION OF: Adjudicator Mewing DELIVERED ON: 3 August 2015 DELIVERED AT: Southport ORDERS MADE: 1. The application by the Respondent for claim 844/14 to be dismissed is refused. CATCHWORDS: Other minor civil dispute matters – application to dismiss APPEARANCES and REPRESENTATION (if any): This application was heard on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] These written reasons for the Tribunal’s decision of 3 August 2015 to refuse the Respondent’s Miscellaneous Matters application to dismiss claim 844/14 are provided pursuant to a request for reasons. [2] On 17 November 2014 the Applicant filed an Application for Minor Civil Dispute – Minor Debt at the Southport Registry of QCAT, seeking an Order that the Respondent pay $14,000.00 to the Applicant. -- 1 of 2 -- 2 [3] The Respondent filed a formal response to the claim on 17 February 2015, and both parties participated in mediation on 24 March 2015 but without resolution. [4] On 3 July 2015 the Respondent filed an Application for Miscellaneous Matters with the Tribunal, seeking to have the claim against him dismissed on grounds that the Applicant had “misled the Tribunal in giving false information and has wasted allot [sic] of the courts [sic] time as well as my time, money and has created allot [sic] of unnecessary stress not only to myself, but to my wife and children.” [5] The Respondent’s allegation that the Applicant has misled the Tribunal appears to be based on the time it has taken the Applicant to obtain a grant of probate in this matter from the Supreme Court. [6] A grant of probate in the Estate of Leonard James Culpitt is required before the Tribunal can deal with the matters the subject of the originating Application in this matter. The Respondent’s Miscellaneous Matters application accuses the Applicant of failing to probate the will of Leonard Culpitt within the time agreed with the Tribunal. On evidence provided by the Applicant to the Tribunal in response, it was clear that the probate process was well underway, and that the Applicant had done nothing to delay the process. [7] The basis for the Respondent’s application to dismiss this claim fails to recognise the time it takes in the usual course to obtain a grant of probate. In assessing the merits of the Respondent’s application to dismiss against all material provided by the Applicant both in response to that application and throughout the matter, the Tribunal was not satisfied that the claims made by the Respondent were made out. If the Respondent believes he has legitimate defence to the debt claim he can present his evidence at the hearing. [8] It is for these reasons that the Respondent’s application of 3 July was refused. -- 2 of 2 --