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  • Unreported Judgment

Taylor v Hatfield

 

[2008] QSC 347

 

SUPREME COURT OF QUEENSLAND

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application heard on the papers

DELIVERED ON:

19 December 2008

DELIVERED AT:

Supreme Court, Brisbane

JUDGE:

Wilson J

ORDERS:

1. That the applicant be authorised to deal with and distribute the estate without regard to the claim by the respondents;

2. That the applicant’s costs of and incidental to this application be paid out of estate on the indemnity basis. 

SOLICITORS:

North Coast Law for the applicant

[1] Wilson J:  The applicant is the executor of the Will of the late Merle Lorraine, also known as Merle Lorraine Airey, who died on 13 August 2007. 

[2] The deceased resided at Unit 1, 5 Hill Street, Pomona, in premises rented from the respondents pursuant to a General Tenancy Agreement under the Residential Tenancies Act 1994.  She died at the premises as a result of an explosion which occurred on or about 13 August 2007.

[3] On 20 August 2007 the applicant received a facsimile from the solicitors for the respondents advising that their client had a potential claim against the estate for the damage to the unit.  On 20 September 2007 the applicant’s solicitors acknowledged receipt of that facsimile and advised that the applicant (the principal of the firm North Coast Law) was the sole executor under the Will. 

[4] On 10 January 2008 the applicant wrote the respondent in the following term:-

 

“RE:  NOTICE TO CLAIMANT PURSUANT TO SECTION 68 OF THE TRUSTS ACT 1973 ESTATE OF LATE MERLE LORRAINE (a.k.a. MERLE LORRAINE AIREY)

 

I, Alan Graham Taylor, Solicitor of 7 Margaret Street, Palmwoods in the State of Queensland hereby notify you as follows:-

 

1. I am the sole Executor pursuant to Grant of Probate No. S11421 of 2007 issued by the Supreme Court of Queensland and I attach a copy of such Grant evidencing my appointment.

 

2.By way of letter from Neilson, Stanton and Parkinson addressed to North Coast Law, PO Box 251, Pomona Qld 4568, you have intimated that you have a potential claim against the Estate. 

 

3.I hereby give you notice pursuant to Section 68(1) of the Trusts Act 1973 that unless you take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence within a period of six (6) months from the date of service of this notice upon you then I will exercise my rights as Trustee pursuant to Section 68(2) of the Trusts Act 1973.

 

4.My address for service is C/- North Coast Law, Solicitors, 7 Margaret Street, Palmwoods Qld 4555.”

[5] On 29 February 2008 the respondent’s solicitors wrote to the applicant’s solicitors as follows:-

 

“We refer to your letter dated 10 January 2008.

 

We advise that our clients’ insurer, CGU Insurance, has paid to our client insurance proceeds to cover the cost of the damage to the unit at 1/5 Hill Street, Pomona.

 

We have supplied the insurer with a copy of your letter to our clients dated 10 January 2008 should our clients’ insurer wish to exercise their rights to subrogation against the estate.”

[6] Meanwhile by Notice of Claim addressed to the deceased and dated 26 September 2007 the Residential Tenancies Authority advised that it had received a refund of Rental Bond Form 4 regarding the premises, directing that $600.00 be paid to the respondents for repairs.  The deceased’s family provided that to the applicant on 30 October 2007.  By then the expiry date for objection had expired, and the applicant took no steps to object to the claim for the bond under the rental agreement. 

[7] The applicant has not received any further notice of a claim upon the estate by the respondents or their insurer and he is not aware of any action taken by the respondents or their insurer.  Accordingly he has applied for orders:-

 

“1.  That the claim of the Respondents against the estate be for all purposes barred.

 

2. Alternatively, that the Applicant be authorised to deal with and distribute the estate without regard to the claim by the Respondents.

 

3.Such other order/s as the Court deems appropriate.

 

4.That the Applicant’s costs of this Application be payable by the estate on an indemnity basis.”

[8] The application was served on respondents on 13 October 2008.  There has been no appearance by the respondents. 

[9] Pursuant to section 68 of the Trusts Act 1973:-

 

68 Barring of claims

 

(1) Where a trustee wishes to reject a claim (not being a claim in respect of which any insurance is on foot, being insurance required by any Act) which has been made, or which the trustee has reason to believe may be made —

 

(a) to or against the estate or property which the trustee is administering; or

 

(b) against the trustee personally, by reason of the trustee being under any liability in respect of which the trustee is entitled to reimburse himself or herself out of the estate or property which the trustee is administering;

 

the trustee may serve upon the claimant or the person who may become a claimant a notice calling upon the claimant, within a period of 6 months from the date of service of the notice, to take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence.

 

(2) At the expiration of the period stipulated in a notice served under subsection (1), the trustee may apply to the court for an order under subsection (3), and shall serve a copy of the application on the person concerned.

 

(3) Where, on the hearing of an application made under subsection (2), the person concerned does not satisfy the court that the person has commenced proceedings and is prosecuting them with all due diligence, the court may make an order —

 

(a) extending the period, or barring the claim, or enabling the trust property to be dealt with without regard to the claim; and

 

(b) imposing such conditions and giving such directions, including a direction as to the payment of the costs of or incidental to the application, as the court thinks fit.

 

(4) Where a trustee has served any notices under this section in respect of claims on 2 or more persons, and the period specified in each of those notices has expired, the trustee may, if the trustee thinks fit, apply for an order in respect of the claims of those persons by a single application, and the court may, on that application, make an order accordingly.

 

(5) This section applies to every claim therein mentioned, whether the claim is or may be made as creditor or next of kin or beneficiary under the trust or otherwise; but it does not apply to any claim under the Succession Act 1867, part 5 and no order made under this section shall affect any application for revocation of any grant of probate or of letters of administration, whether that application is made before or after the order.

 

(6) Where any person beneficially entitled to the estate or property is not made a party to an application by a trustee under this section an order made by the court on the application shall not affect the right of that person to contest the claim of the trustee to be entitled to indemnify himself or herself out of the estate or property.

 

(7) Any notice or application which is to be served in accordance with the provisions of this section may be served —

 

(a) by delivering it to the person for whom it is intended or by sending it by prepaid registered letter addressed to that person at the person’s usual or last known place of abode or business; or

 

(b) in such other manner as may be directed by an order of the court.

 

(8) Where a notice is sent by post as provided by this section, it shall be deemed to be served at the time at which the letter would have been delivered in the ordinary course of post.”

[10] There is no evidence of the size of the deceased’s estate nor, is there evidence of the extent of the explosion in which she died and the damage done to the respondent’s property. The limitation period for bringing a claim against the estate has not expired. 

[11] More than 16 months have passed since the explosion and the deceased’s death. The beneficiaries of her estate are her children.  In all the circumstances I consider that the administration of the estate and the distribution of it ought not to be further delayed by the potential claim. 

[12] Accordingly I order –

1.That the applicant be authorised to deal with and distribute the estate without regard to the claim by the respondents;

2.That the applicant’s costs of and incidental to this application be paid out of estate on the indemnity basis. 

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Editorial Notes

  • Published Case Name:

    Taylor v Hatfield

  • Shortened Case Name:

    Taylor v Hatfield

  • MNC:

    [2008] QSC 347

  • Court:

    QSC

  • Judge(s):

    Wilson J

  • Date:

    19 Dec 2008

Litigation History

No Litigation History

Appeal Status

No Status