- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
No 5011 of 2003
CATERINA ROMANO and ROCKEY NIMJIS HORAN
(AS BENEFICIARIES UNDER THE WILL OF MARJORIE OAKEY POCOCK)
CLEM LADEWIG and IAN LADEWIG (THE NEXT OF KIN OF THE DECEASED
ENTITLED TO SHARE IN THE ESTATE OF AN INTESTACY)
HIS HONOUR: By the originating summons the applicants seek construction of the will dated 20 November 1987 of the late Marjorie Oakey Pocock. The relevant parts of the will are as follows:
“3.I GIVE DEVISE AND BEQUEATH my house property and the contents of same between such one or more of my sister the said LILLIAN ETHEL STANTON BALLINGER and my half-brother JAMES SHEEHAN of 89 Buranda Street Buranda Brisbane aforesaid as shall survive me and if both so survive me then equally between them as tenants in common for their sole use and benefit absolutely
4.I GIVE DEVISE AND BEQUEATH all the rest and residue of my real and personal property of whatsoever nature and kind and wheresoever in the world the same may be situate UNTO AND TO my said Executors and Trustees UPON TRUST to sell call in and convert into money such part or parts thereof as shall not already consist of money at such time or times … and to stand possessed of the proceeds of such sale calling in and conversion and also of such parts of my estate as shall already consist of money UPON TRUST for the following purposes-
(a)To pay transfer and hand over the nett sale price of my vacant allotment of land on the left hand side of my house property situate in Palmer Street Windsor Brisbane aforesaid between such one or more of my friends CATRINA ROMANO of 14 Hawdon Street Wilston Brisbane aforesaid and ROCKEYE HORAN of 35 Chatsworth Road Greenslopes Brisbane aforesaid as shall survive me and if both so survive me then equally between them as tenants in common for their sole use and benefit absolutely.”
At the date of the will the testatrix owned four 16 perch lots. Lots 6, 7, 8 and 9 on registered plan 19287, all of which had their frontage to Palmer Street at Windsor. The house in which he resided, a substantial “old Queenslander”, was built on lot 6 and 7 with the front of the house running parallel and very close to the common boundary of lots 7 and 8. The front stairs were mainly on lot 8. The vehicular access to the house from Palmer Street was via a gate on lot 9, which led to a driveway through lot 9 opening into a circular drive on lot 8 at the front of the house.
A well-established garden with mature trees, concrete edging and garden features existed on the property and was mainly located on lots 8 and 9. To the west of and adjoining lot 6 is lot 5 on registered plan 19287. It was sold by the testatrix some 13 months prior to the date of the will. For some years the sole structure on it was a hen coop and the evidence suggests that at the time of its sale it was accurate enough to describe it as a vacant allotment. I mention also that the evidence discloses that the description of the house property which I have given was accurate at the date of the will and for many years preceding that date.
The applicant residuary beneficiaries contend that there is some ambiguity in the description of “house property” in clause 3 and “vacant allotment on land on the left-hand of my house property” in clause 4.
The main point is that, at the date of the will, the testatrix did not own lot 5. It is argued therefore that it was inappropriate to refer to lot 5 as “my vacant allotment” and that, by these words, the testatrix must have meant something else.
The contention is that those words thus refer to lots 8 and 9. Mr Somers, who appeared for the applicants, argued that not much could be made of the fact that lot 5 was to the left of the house property as one looks at it from Palmer Street.
He pointed out that, if one looks from the house property to Palmer Street, it is on the right. In my view the obvious point of orientation, when describing the location of an adjoining lot in relation to a dwelling house, is the street frontage of the house looking towards the house.
The next most likely point of orientation, one would think, is looking from the front of the house. Neither of these more obvious orientations suit the applicants' argument, but there are stronger points to be made against it.
In my view it would be remarkable if the testatrix, in referring to her house property, meant to refer to two parcels of land only which did not include the front stairs, the front gate, the vehicular access and much of the established grounds of the property.
Moreover, lots 8 and 9 cannot, with any degree of accuracy, be described as a “vacant allotment of land”, having regard to the physical features which I have described which make them an integral part of the dwelling house, its curtilage and general surrounds.
Accordingly the application cannot succeed. Plainly, in my view, the reference to “house property” in clauses 3 and 4 is a reference to lots 6, 7, 8 and 9, together with the improvements thereon.
Mr Somers invited me not to dismiss the application because there may be some argument in the future about the quantification of the moneys payable to the applicants under clause 4.
It seems to me, though, that the appropriate course is simply to dismiss the application. If there is such a dispute which cannot be determined by the parties, the same material can readily be used simply by virtue of no further material being filed or. at least, no duplicating material being filed, and this file being got up for reference on the application.
That leaves the question of costs.
HIS HONOUR: The substance of the dispute between the parties concerned the identification of the property, the subject of Clause 4; one needs only to look at the originating application to see that. It is thus appropriate, I think, to adhere to the order which I originally intimated was appropriate and I make no order as to costs.
- Published Case Name:
Caterina Romano v Clem Ladewig
- Shortened Case Name:
Romano v Ladewig
 QSC 215
20 Jun 2003
- White Star Case:
No Litigation History