E Carr & Son P/L v Estate of Carr [2003] QSC 453

State Reporting Bureau \avo3~} GSC 4^2> Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE J REVISED COPIES ISSUED State Reporting Bureau Date: 10 December, 2003 No 10325 of 2003 E CARR Sc SON PTY LTD Applicant and KATHRYN ALICE HOOD AND PHILLIP EDWARD Respondent CARR AS EXECUTORS OF THE ESTATE OF THE LATE EDWARD CARR BRISBANE ..DATE 02/12/2003 JUDGMENT WARNING : The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- HER HONOUR: The applicant is a creditor of the estate of the 1 late Edward Carr. It has two directors, Mr de Blonk Smith and Mr Phillip Carr, the son of the deceased. Mr Phillip Carr holds 195 ordinary shares and one non-voting 10 preferential share in the company. Mrs Kathryn Hood, the deceased's daughter and Mr Phillip Carr's sister, holds five ordinary shares. The late Edward Carr died on the 8th of September 2000 aged 95 20 years. His wife predeceased him so that provisions in his will relating to her need not be further mentioned. 02122003 D.l T02/ZMS32 M/T 1/2003- (White J) He appointed his two children, Phillip and Kathryn, as the executors and trustees of his estate. Neither has sought probate of the will. 30 He bequeathed all his shares in the applicant company to Phillip and put in place a process whereby Kathryn should sell her shares to Phillip which in broad terms would equate to one-tenth of the value of all the shares in the company. 4 The will was executed on the 29th of December 1992. A codicil of no relevance to this application was executed on the 21st of March 1995. 50 The estate consists principally of cattle on agistment on land owned by the company, the property known as "Myravale" via Gympie, where the late Mr Carr lived and worked and where 2 JUDGMENT 60 -- 2 of 5 -- Mr Phillip Carr now lives and works. There is some $11,000 in 1 cash in a bank account derived from a policy. The amount of agistment owing is said to be almost $700,000 and that is claimed by the applicant company against the estate. 10 The late Edward Carr transferred by way of gift to his son Phillip his 180 shares in the company in about November 1998. 02122003 D.l T02/ZMS32 M/T 1/2003- (White J) Mrs Hood has commenced proceedings against her brother to set aside that transaction and to have those shares fall into the estate. 20 She has also commenced proceedings under Part 4 of the Succession Act for further provision from the estate. 30 Mrs Hood disputes with the company the number of cattle to which the estate is entitled and the amount for agistment charged by the company for the cattle. Largely for these reasons, no estate tax or business activity returns have been filed and penalties are accruing. 40 Both Mr Phillip Carr and Mrs Kathryn Hood agree that an administrator ought to be appointed to administer the will's trusts . 50 The applicant company submits that the appointment ought to be for all purposes and not limited to the matters in which it, as a creditor, has an interest for fear that the 3 JUDGMENT 60 -- 3 of 5 -- 02122003 D.l T02/ZMS32 M/T 1/2003 (White J) administrator, in effect, may need to return to the Court if < his specific powers are insufficient. Mr Phillip Carr agrees. Mrs Hood agrees only to the appointment for the purposes of getting in and disposing of the cattle, ascertaining proper 10 agistment fees to be paid by the estate to the company, and to arrange the various revenue returns. She does not want to renounce as executor. She does not want further costs to be incurred beyond what is necessary to resolve the deadlock between herself and her brother. She has not been cited but 2U if she were she would defend her right to remain an executor. There is no conduct by Mrs Hood or indeed Mr Phillip Carr which falls within section 46 of the Succession Act which would disqualify them from remaining executors of this estate. 30 I should add that the proposed administrator is Mr Bill Fletcher, an accountant, who consents to act on either an interim or a complete basis and both parties are agreeable to his appointment. The Court has jurisdiction under section 6(3) of the Succession Act to make a grant to any person subject to such provisions, including conditions or limitations, as the Court may think fit. That jurisdiction ought not, in my view, to be read as going against the general law relating to executors. 50 Section 46 of the Succession Act supports that conclusion as do the Uniform Civil Procedure Rules relating to probate business. There is no equivalent to section 116 of the English Supreme Court Act of 1981 which empowers the Court to 4 JUDGMENT 60 -- 4 of 5 -- 02122003 D.l T02/ZMS32 M/T 1/2003* (White J) pass over prior claims to a grant where it appears to the 1 Court to be necessary or expedient to appoint some other person over a person who would otherwise be entitled to a grant . 10 Had, of course, Mrs Hood been content to surrender up her executorial duties, as I understand Mr Phillip Hood is, there would be no difficulty. The litigation is appropriately constituted with Mrs Hood, as 20 the applicant and her brother the respondent as executor of the estate in the Succession Act litigation. The proceedings between Mrs Hood and her brother over the gift of shares inter vivos does not concern the estate. 30 So long as Mr Fletcher, as administrator, is given sufficiently wide powers to investigate the claims of the company and Mrs Hood, and to do all things necessary to get in the estate so far as it relates to the sale of the cattle, the value of the agistment charges and doing the returns, I accept 40 the submissions of Mr Marks for Mrs Hood that at this stage there is no basis for removing Mrs Hood as an executor. Counsel should settle a draft order. 50 5 JUDGMENT 60 -- 5 of 5 --