Brown, Re; Re Brown, Brown, Brown & Brown [1991] QSC 338

.;,}' ' ,>' ............ TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor,, Tne Law Courts, George Street, BRJSBANE, 0. 4000 'fel. (07f·227.436Q (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 CHAMBERS WHITE, Master OS No 949 of 1991 REVISED COPIES ,ISSUED i Cou~t Reporting Bureau I . ., Date: /t.f- I// !.:...V,. = ·-- IN THE MATTER OF the Succession Act 1981 - 1987 and IN THE MATTER OF the Estate of William Moreton Brown also knownas William Morton Brown late of 11 Forest Avenue, Molendinar in the State of Queensland, Businessman, Deceased Intestate and IN THE MATTER OF an Application by Russell Peter Brown, Debra Ann Brown, James Morton Brown andRodney William Brown under Part IV of the said Act BRISBANE .. DATE 12/11/91 JUDGMENT 1 -- 1 of 10 -- 10 20 30 40 50 60 121191 JUDGMENT MASTER: An application has been brought by the four adult children of the deceased William Moreton Brown who died intestate in the ·Philippines on 3 July 1991. The deceased was first married to the mother of the applicants in 1948 at Boonah in Queensland. She died in 1989, and he married a Filipino National in the Philippines on 9 May 1991. He had made a will after his wife's death in 1989 in which the four applicants were his beneficiaries equally, but by operation of law, on his subsequent marriage, that ceased to have effect. It is submitted by Mr Kelly on behalf of the Public Trustee as administrator of the deceased's estate and by Mr Halliday, ' .. who appears for the widow, that a prima facie case has not been made out and that the application ought to be dismissed at this point, this being the first return date of the summons. The situation of each of the applicants is set out in his/her respective affidavit. In their early years their parents lived on farm properties in the Boonah/Beechmont/Beaudesert areas. The children and their mother were all involved in the hard farming work that took place and eventually in house building on farm property and then, on sub-division work on those properties., By 1962 the deceased had acquired house property assets by inheritance and commenced to acquire the rental properties which are the basis of his estate which has been estimated Govt. Printer, Old. 2 Ii 10 zo 30 40 50 60 -- 2 of 10 -- lU 30 _§_Q_ __ 121191 JUDGMENT to be about $700,000. The first wife, the mother of the applicants, left an estate of $45,000 to be shared equally amongst her four children. All properties acquired during the marriage were apparently in the deceased's name. . " ,,..,. After his first _wife died his daughter, Debra Brown, deposes to the deceased being lone 1 y and engaging in a series of quite unsatisfactory relationships with various women culminating in the marriage to the respondent. Nothing is clearly known about the respondent except what must be doubtfully admissible material. She is a woman said to be about 40 years of age who lives in the Philippines and may be a nurse. Each applicant's situation is as follows: James Morton .,· Brown lives in New South Wales and is described as self-employed. He states that he is presently divorced from his wife and has one dependent child aged five years. His income is derived as follows: a defence ~orces pension of $267 per week; a disability pension of $10.20 per week; and rental received from a house property of $185 per week. He deposes to having personal living expenses which amount to approximately $200 per week for food, accommodation, petrol and other necessities, and pays $50 per week maintenance for his child. He owns a trucking business which he deposes is not operating profitably. He has exhibited a statement of assets and liabilities to his affidavit which shows that he has an apparently unencumb.ered house property worth about $180,000, and a number of trucks 50 _________________________________ ___,! 60 Govt. Pcintor, Old. 3 -- 3 of 10 -- 10 30 40 50 60 121191 JUDGMENT and trailers which are either owned with mortgages on them or are the subject of leases which amount to several hundreds of thousands of dollars. He also shows that he has sundry creditors in the sum of $224,470.48, and 0wes subcontractors $22,000 and $32,000 respectively in New South Wales and Western Australia. He has substantial mortgages on those trucks, but it is not at all plain as to how those mortgages are serviced since, apart from his pension moneys, he does not reveal what income he earns from the trucking business. As was submitted, if it were so unprofitable it is surprising that he is a.ble to maintain the leases and mortgage payments. I !Q Russell Brown is aged 38 years and is an employee of the Western Australian Government. He sets out his assets and , liabilities in paragraph 5 of his affidavit. He owns his ! home jointly with his.wife,. which is valued at $11O,OOO.and which has a mortgage liability of $16,000. He owns a car, a utility, and has $7,000 in a property trust and $1,000 in a bank account. He has a modest number of household goods which he owns with his wife. Rodney Brown is unmarried and works as a Commonwealth Public Servant with a salary of $31,150. He owns a residential property valued at $95,000, with a loan of $21,000 outstanding over that property. He has a late model motor effects I i vehicle with a $12,000 loan outstanding on it. He has some cash j_n a building society and has personal and furniture valued at $20,000 and superannuation of $8,000. JGe,,~. r.,,.tnter, Qld. 4 .:: (j 50 60 -- 4 of 10 -- 30 50 , 121191 JUDGMENT Debra Brown is aged 30 years and unmarried. She is employed by the Gold Coast City Council. She deposes in paragraphs 6 and. 7 of her affidavit to living in a house property which she owns with her boyfriend who appears to be a person with no substantial means. She values that property at $90,000 and it appears that there is probably nothing owing on that property. She owns a modest motor vehicle and has apparently purchased a unit valued at $82,000 over which there is a loan of $43,000, which is described as a 20-year loan. That unit is presently unrented., She has about $4,000 in a bank account. All applicants are apparently in good health. It is plain that on the intestacy provisions of the succession Act the widow takes one third and the applicant ., children share the remaining two thirds of the property; that is, they will each receive in the vicinity of $110,000 from tha est~te of their father. I have been referred by Mr Applegarth, who appears for the applicants, to a number of authorities where the testator, or intestator in this case, has left a large estate. He referred me to the decision of Re Anderson (Deceased) unreported decision of Kelly J, as he then was, delivered on 30 May 1984 (OS No 414 of 1981) where His Honour has collected together the authorities which are relevant to large estates. The net effect of those authorities is to suggest that a Court in considering the position of an adult applicant child where a large estate is involved may look further than the II 60 ~'-=---I-···-·--·---··. in circumstance~_] Govt flrinter, Qld. 5 10 3C 5C 60 -- 5 of 10 -- I.-----~------------------------------------------.---- 121191 JUDGMENT bare needs of the applicant and set a higher figure for the standard of maintenance and comfort of that applicant child. It is ~erhaps worth noting that in Re Anderson, the estate was a very large one, something in excess of two million dollars 10 10 20 30 40 50 and the provision made for the applicant children in that case was $75,000. It is necessary to recall the words of the Statute for it is only the Statute which gives the applicants any standing at , all to bring this application for provision out of the intested estate of their deceased father. succession Act 1981 provides in subs (1): Section 41 of the '.' If any person ( hereinafter called 'the deceased, person') dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate,,, provision i is not made from the estate for the proper maintenance ' 30 and support of the deceased person's spouse, child or dependant, the Court may, in its discretion, on appllcation by or on behalf of the said spouse, child or dependant, order that such provision as the Court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant ... " If the positions of the applicants are considered, bearing in 40 mind that a Court may not rewrite the will, even on an intestacy, ( since it may be supposed that a deceased person may be content to allow the intestacy rules to govern the disposition of his estate), to reflect what the Court thinks is right and proper, the sum which each of the applicants will receive will leave each of them in a relatively comfortable position and give them a guard against those unfortunate winds of life to which some of the earlier cases relating to large estates refer. Therefore, I form the view that it is not 50 60 60 -Govt. Printer, Old. 6 -- 6 of 10 -- 10 30 40 r191 likely that even in a prima facie way the applicants would JUDGMENT I succeed in their application. It must be said t~at not all of J lhe applicants are in identical circumstances. t appears that the applicant daughter, Debra, probably had a I greater moral claim upon the estate of her father for the I closer relationship she had with him, particularly assisting I during her mother's last illness and assisting her father j after her death. i ~he question then arises as to whether I have jurisdiction to i dispose of the application at this stage of the proceedings. J1 ractice Direction No 7/1982 QdR p 770 provides as fol~ows: i l ''l. Applications under the above Part are made by I originating summons. On the first return date, by the practice of the Court, that summons is treated as a summons for directions and must in Brisbane be brought before a Master in Chambers. The consent of all parties is not required under O 86, r l(a)(x) as it is not a 'hearing and determination' of the application itself: see O 64, rr 1(11), lC, lD, 2. 2. The applicant should show a prima facie case that he or she is an 'applicant' as defined and is otherwise entitled to bring the application ... " In Glover v. The Executor of the Estate of Marstella ( 1988) Jos 831/1987 decision 24 November 1988), the Full Court of the 50 I Supreme Court considered the jurisdiction of a Master to hear lnd determine an application under s 41 of the Succession Act I pursuant to para 2 of the Practice Direction. McPherson J, as Ifue then was, set out the provision of the Practice Direction ~o which I have just referred, and he held that the applicant 60 ·Govt. Printer, Old. 7 10 20 30 40 50 60 -- 7 of 10 -- 10 20 30 40 50 60 121191 JUDGMENT must show a prima facie case that he or. she is an applicant as defined and is otherwise entitled to bring the q~plication. In the matter the subject of the appeal before Their Honours the Master had held that the applicant had no standing to bring the application; that is, that he was not an applicant as defined, and the summons was therefore dismissed. The Master's decision was upheld on appeal. The Full Court did not deal with the question of whether a prima facie case must also be made out with respect to the substance of the application. However, it seems to me that since the Practice Direction requires that the applicant must show that he or she is otherwise entitled to bring the application it must mean that, having established that he or she falls within the definition, the applicant would be likely in a prim3 facie way to be successful on an application. McPherson J dealt with the question of the power of a Master to dispose of an application on the first return date. His observations, it seems to me, apply to the whole of para 2 of the Practice Direction and I will quote them: "The question of his (Master) power to do so was debated before us. His jurisdiction in that behalf was ascribed in para 2 of the Practice Note itself. It may be doubted whether a Practice Direction not having the status of a Rule of Court can confer or take away jurisdiction; at least that would, one might expect, be so as regards the final determination of a proceeding in this Court. In saying this, I am speaking generally, and specifically leave aside the question whether para 2 of the Direction may be authorised by O 86, r 1 ( k) of the Rules of the Supreme Court. Apart from that provision, the only basis for determining the eligibility of an 'applicant' upon summons for directions appears to be O 22, r 31, or possibly, if.the appropriate steps have been taken, 0 22, r 28. -Govt Printer, Qld. 8 10 20 30 40 50 60 -- 8 of 10 -- 10 30 40 50 60 121191 JUDGMENT Order 22, r 31 enables a Judge to strike out a pleadin as disclosing no reasonable cause of action. The word 'pleading' r.-: defined in the Judicature Act of 1876 a~ including ~ summons and 'action' as meaning a civil proceeding commenced by writ 'or in such other manner a~ may be prescribed by Rules of Court' . The applicant's 1o summons in this matter is therefore a 'pleading' in an 'action'. Other definitions ins 1 of the Act show that the applicant is, for the purpose of the Rules, thEi 'plaintiff' in that action and that the respondents ar~ the 'defendants' . See generally on the application of the Rules to an originating summons, Re Fawsett (1885) I 30 ChD 231; Re Verd6n's Trust (1885) 55 LJCH 259. Thd definitions in s 1 of the Judicature Act are expressly incorporated by O 1, r 1, of The Rules of the SupremeI Court. I 20 The Master has by virtue of O 86, r l(a) power to exercise the jurisdiction which by virtue of the RuleE:! may be exercised by a Judge sitting in Chambers. H~ therefore had power under O 22, r 31 to strike out the applicant's pleading, meaning his summons. However, suctt an order under that Rule would be interlocutory and no~ final ... " ! _,· I Accordingly, I have formed the view that as an exercise irli I striking out, which seems to be the proper approach to take orl I an application of this kind, no reasonable cause of action has I been revealed by the applicants in their affidavit materialJI 30 I therefore would strike out their pleadings. me to be the proper course to take. That seems tJ 40 I I must say that I should like to order the costs in favour o, your client, Mr Applegarth, but I would fear that mY: discretion would miscarry should I so do. It really is noJ 50 quite the same as a case which has moved forward as a primJ facie case and, in those circumstances, it is ordered thaJ I there will be no orders as to the costs of and incidental td the summons of the applicants or of the respondent Rosalinda 60 -Govt. Printer, Old. 9 -- 9 of 10 -- -----,--------------------- ---------------------------~-------- 1 21191 rown who is separately represented but further order that the I JUDGMENT costs of and i¼:-;idental to the summons and the appearance here loday of the Public Trustee be paid out of the estate on a JO I solicitor and client basis. 20 30 40 50 60 I order that a copy of my reasons be made available to the I I t' par ies. -Govt. Printer, Old. 10 10 30 40 50 60 -- 10 of 10 --