Elsden, Re [1990] QSC 291

10 30 40 50 60 !N THE SUPREME COURT OP QUEENSLAND CIVIL JURISDlCTION BEFQRE MR, JUSTICE KNEIPP ,TOWNSVILLE, 22 AUGUST 1990 9.s. No, 74 of 1988 (Copyright in this transcript is .vested in the crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,court Repcrting ~ureau.) IN THE MATTER OF the "Succession Act 1981 to 1984" -and- IN THE MATTER OF the Will of GEOFFREY WILLIAM ELSDEN late of 16 Baukina Street, Gatton in the State of Queensland, Farmer, deceased -and- IN THE MATTER OF an application under the said Act by JOHN GEOFFREY ELSDEN, the lawful son·of the abovenamed deceased. JUDGMENT HIS HONOUR: It would appear that the amount that will be available from the estate for distribution will be something over $200,000. I was actually given a figure of $198,000, but this reflected an estimate of.costs which by reference to estimates which I have been given in like cases, would be far too high. However, that will be a matter for the Taxing Officer. On a distribution it seems that the applicant and the widow of the deceased will receive some $400 each. The executor, Mrs. Gordon, a daughter of the deceased, will receive $50,000, and each of the seven beneficiaries, grandchildren of the deceased, will receive something over $20,000. The applicant, as the son of the deceased, was a G 214-Go,:. Pnnter. Ola. 1 10 20 30 40 · 50 60 -- 1 of 5 -- 10 20 30 potential claimant on the decaased's testamentary bounty. The other potential claimants were the widow, who was an applicant tor further provision but who has now withdrawn her application, and Mrs. Gordon. The applicant has not been shown to have been guilty of any disentitling conduct. He assisted the deceased in his youth by workin9 on the deceased's property or properties. The excess of his assets over his liabilities at all relevant times has been comparatively modest. He has never had liquid assets of any significance, except briefly before the payment of debts. In his first affidavit he estimated the excess of his assets over his liabilities to be some $30,000, and he was then receiving a net wage of $232. It was submitted that the current excess of assets over liabilities would be of the order of $75,000, and his income including a pension for a war disability, is $483 net per week. A submission was made based on the operation of a bank account of the applicant and his mother which was operated under the name of Lijo Building Consultants. A firm of that name was registered in September 1987. The applicant 10 20 30 40 40 50 60 said that the account was opened solely for use in connection with the building of a house at Gordonvale for his mother. Mrs. Elsden on the other hand has said in evidence that she and the applicant agreed to comi~ence business as builders and building consultants. Apparently she was to contribute the capital and the applicant to carry on the business, the agreement being that they share profits equally. In the result, according to Mrs. Elsden, no projects of great significance were embarked on, but a large amount of money, upwards of $200,000, went into and G 214-Govl Pnnter, Old 2 50 60 -- 2 of 5 -- 10 30 40 50 60 out of this account. Numerous drawings ware for tha benefit of the applicant, but he said ~hat he repaid all of them. Me said disbursements, amounting to over $160,000 in all, were disbursements in relation to the-building of. ❖ the • house for·"'"··--· 0 ·,· his mother. The respondents called a valuer whose opinion was that the value of the house, apart from the land, was only some $80,000. A submission was made that the inference should be drawn that a large part of the $160,000 was diverted to the use of the applicant, whether by way of gift from his mother or otherwise, and that these gifts have not been disclosed to the court. I must say that I felt uneasy about the evidence of the applicant during his cross-examination on this subject and I reject his statement that the account was opened solely for the purpose of being used in connection with the building of his mother's house. Her evidence that they did agree to embark on a business is strongly supported by the name given to the account. If the account was to be used solely for the purpose of building a home for the mother, it is difficult to understand why the name of the account included the words "building consultants". However, there is no direct evidence that any part of the $160,000 was diverted to the use of the applicant. Although he was cross-examined as to various drawings, it·was never put to him directly that he had benefited from the use of the account, except by way of temporary borrowings. Moreover, the mother was called to give.evidence about .the agreement to commence the building, but she was not·asked anything· about the operation of the account and, in ·particular, G 214-Govt. Pnntec. Old. 3 10 20 30 40 50 60 -- 3 of 5 -- 10 20 30 40 so 60 whether ahe or whether the applicant had benefited from that operation except in relation to temporary borrowings, If it be the fact that the house is worth only $80,000, this of course does not necessarily mean that no more than that was spent on its construction. If it be the fact that not all of the $160,000 was spent on the house, then of course it is at least a possibility that it was used by the mother for other purposes. In the result, I do not think that I am justified in refusing to accept the evidence of the applicant to the effect that he derived no lasting benefit from the operation of the account, and I reject this submission. So far as the positions of the beneficiaries are concerned, Mrs. Gordon seems to be in comfortable circumstances. Of the seven residuary beneficiaries, two are university students who plainly would be living frugally at the present time, but one would think that their prospects are good. The remainder are all in comparatively modest circumstances, but none of them seems actually to be in needy circumstances. In the end result, taking into account all relevant considerations, including the fact that the applicant is a.~ adult capable of supporting himself and that he was independent of the deceased for many years, I think that he has shown that at all relevant times he has been in need, as that expression is understood in this context, and I think that the discretion should be exercised in his favour. An appropriate amount to award him in addition to the amount of his benefit under the .will is in my opinion $40,000. The fact that it would seem that what would be G Z14-Govt. Printer. Qld. 4 10 20 30 40 50 60 -- 4 of 5 -- 10 30 40 50 60 received by Mrs. Gordon will be much the same is coincidental. I think that there should not be any special order as to the incidence of the amount awarded. It will therefore be borne rateably by the whole of the estate. I order that the application of the applicant Lilly Elsden be dismissed. I order that further provision be made out of the estate of the deceased Geoffrey William Elsden for the applicant John Geoffrey Elsden by the payment to him, in addition to the amount to which he is entitled under the will of the said deceased, of the sum of $40,000. I order that the costs of all parties, including the costs of the applicant Lily Elsden and of the executors as such, be taxed as between solicitor and own client and paid out of the estate of the said deceased. G 214-Govt. ?rmter, Qld 5 10 20 30 40 50 60 -- 5 of 5 --