Carlton v Eassie & Ors [2012] QDC 282

DISTRICT COURT OF QUEENSLAND CITATION: Carlton v Eassie & Ors [2012] QDC 282 PARTIES: COLLEEN MARGARET CARLTON (Applicant / Respondent in these proceedings) v HELEN MICHELLE EASSIE (First Respondent / Applicant in these proceedings) And ROBYN BEVERLEY O'NEILL (Second Respondent / Applicant in these proceedings) And LESLIE COLIN EASSIE (Deceased) FILE NO: 1640/2012 DIVISION: PROCEEDING: Application ORIGINATING COURT: Brisbane DELIVERED ON: 23 August 2012 DELIVERED AT: Brisbane HEARING DATE: 23 August 2012 JUDGE: Samios DCJ ORDER: 1. Application dismissed. CATCHWORDS: Atthow v. McElhone (2010) QSC 177 Singer v. Berghouse (1994) 181 CLR 208 Sylvester v. Sylvester (2010) QSC 331 COUNSEL: R. Whiteford for the First and Second Respondents (Applicants in these proceedings). R. Clutterbuck for the Applicant (Respondent in these proceedings) SOLICITORS: Hall Payne Lawyers for the First and Second Respondents (Applicants in these proceedings). Piper Craig Henry Lawyers for the Applicant (Respondent in these proceedings). -- 1 of 6 -- 2 [1] Leslie Eassie died on 7 August 2011. He was survived by six children including Mrs Colleen Carlton. Mrs Carlton has brought an application for adequate provision to be made from the deceased estate for her proper maintenance and support. [2] The deceased made his will on 25 November 2009. A probate of his will was granted on 25 October 2011. His will appointed two of the children as executors and trustees. He divided the estate equally between his six children, save that Mrs Carlton's share is to be held by the executors and trustees on discretionary trust to pay the income and capital thereof to her for life and on her death to pay the remaining capital to her children. It is accepted that the estate consists of cash of about $388,329. Some $462,400 has already been distributed. [3] The application before me today is brought by the executors and trustees. It is an application to dismiss Mrs Carlton's proceedings on the grounds that she has not complied with the practice direction and/or she has no reasonable prospects of success and/or the proceedings are an abuse of the process of the Court. [4] It is correct that when Mrs Carlton filed her application on the 27th of April 2012 she did not file then supporting affidavits. The executor and trustees' solicitors actively sought that there be compliance with the practice direction. Affidavits have been filed by Mrs Carlton and by her husband on 14 August 2012. Further, today, Mrs Carlton's solicitor, Mr Piper, has sworn an affidavit which has also been filed by leave. [5] I would not dismiss Mrs Carlton's application in this case because of the failure to file supporting affidavits at the same time as the originating application was filed on -- 2 of 6 -- 3 27 April 2012. In my view what has occurred is an irregularity and does not leave me persuaded that in the circumstances I should dismiss her application on this ground. I therefore refuse to do so. [6] However, the question of prospects of success is another matter that has to be resolved. I have noted the authorities that are referred to in the submissions. Clearly Singer v. Berghouse (1994) 181 CLR 208 at 208 and 209 refers to this two- stage inquiry being a determination of whether the applicant has been left with adequate provision for her proper maintenance, education, and advancement, and then a second stage which only arises if that determination be made in favour of the applicant requires the Court to decide what provision ought to be made out of the deceased estate for the applicant. The first stage has been described as a jurisdictional question. [7] In this matter, I also note that in Sylvester v. Sylvester (2010) QSC 331, Justice Mullins, referring to Higgins v. Higgins, indicated that an applicant for family provision has an evidentiary burden on an application for summary dismissal of the proceeding. However, Justice Applegarth in Atthow v. McElhone (2010) QSC 177 at paragraph 19 noted that as in any application for summary dismissal of a proceeding, one should proceed with caution and not grant summary judgment unless it is clear that the application cannot possibly succeed. [8] The applicant, who was born on 10 September 1950, will soon be 62 years of age. She has three children and lives with her husband on a farm near Grafton. There is no dispute the farm is operated by her husband, son and daughter. However, she suffered a stroke on 11 July 2009 and the evidence would indicate that she has significant speech impairment and has suffered paralysis of part of her body. -- 3 of 6 -- 4 [9] When she filed these affidavits, her affidavit and her husband's affidavit in support of the application she brings, she did not depose to a number of transactions regarding real estate. The submissions for the executors and trustees set out that a number of transactions occurred on the 23rd of May 2012, and one on the 28th of July 2011. [10] It seems these transactions have taken place because it is sought to consolidate the farming properties which will have benefits financially for her family. Mr Piper refers to these being intergenerational transfers which are part of an ongoing strategy being carried out with Centrelink, and the ultimate aim of the farm succession strategy is that Mrs Carlton may later be eligible for Centrelink benefits, and there is additional benefit of the farm succession planning transfers in that there will be a reduction of council rates once the lands are held in same ownership, and the family will be entitled to consolidate various land holdings for rating purposes. [11] The consequence is, though, that it has been submitted that Mrs Carlton has not been frank with the Court in her evidence to date. However, it is accepted that Mr Carlton, her husband, has disclosed in his affidavit the various farming properties, and that the farm has a nil income. The submission had been made that what Mrs Carlton had done was to give away a number of properties and was seeking to secure benefits, which I have just mentioned, and then looked to her father's estate to make up a shortfall in their funds. [12] Having heard all the submissions and considering the evidence in this matter, I am not persuaded that Mrs Carlton has deliberately sought to mislead the Court. Explanations may be forthcoming for why matters have not been set out in a more comprehensive way in her affidavit. I bear in mind that she is the victim of a stroke -- 4 of 6 -- 5 and may have difficulty giving instructions. That her husband may also be busy just trying to run the farm. He did disclose the properties and the income. It seems to me that Mrs Carlton has not done anything untoward in her approach to this application. [13] Having considered the submissions and the evidence put before me, I am satisfied that Mrs Carlton does show a prima facie case, that is, I consider it is arguable she has been left without adequate provision for her proper maintenance, education and advancement in life. It should be borne in mind that the beneficiaries have not sworn as to their circumstances. In my view, once all relevant circumstances including the beneficiaries' circumstances are considered by the Court, a judgment could be made ultimately as to what order should be made in relation to the second stage. [14] Therefore, I do not accept that the applicant has no reasonable prospects of success. On the contrary, I consider that there are reasonable prospects of success despite the transfers of property that have been engaged in. These are all matters that a testator might take into account if they're fully aware of the implications of the child's needs as they seem to be now coming to the fore. [15] It seems to me also that the decision of his Honour Judge McGill in Trim v. Day is relevant to this application. As matters stand, as I said, I am not satisfied that there are no reasonable prospects of success. On the contrary, I think the prospects of success are arguably good for Mrs Carlton. [16] Likewise, I do not accept the proceedings are an abuse of the process of the Court. I think there may be innocent explanations for why affidavits have been sworn the -- 5 of 6 -- 6 way they have at this stage. People do not appreciate exactly what they ought to depose to until argument is raised about what they have already said. As I said, I do not accept there's been any deliberate attempt to mislead the Court. [17] Therefore, I dismiss the application by the executors and trustees and I will hear the parties as to what other orders I should make. [18] Now, this is a case where the executors and trustees in my view should have their costs on the standard basis paid out of the estate. In my view, when an applicant in Mrs Carlton's position, notwithstanding she has had a stroke, brings an application she should bring her affidavits at the same time or very soon thereafter. That had not happened and in addition, when she did swear her affidavit, it wasn't as complete as Mr Piper's affidavit shows. Perhaps it should have been. [19] On the substantive application heard by me today, I've been prepared to give Mr Carlton the benefit of the doubt that he may not have been as fulsome in explaining transactions that may have been happening, and it took Mr Piper's affidavit to bring the matter around to Mrs Carlton's favour today, and I don't think the trustees and executors should be out of pocket for bringing this application but only on the standard basis. There's a bit on both sides. Yes, so there'll be no order as to costs. -- 6 of 6 --