Pierpoint v Liston[2012] QCA 199

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Margaret Wilson J's reasons for allowing this appeal.  It is in the best interests of the infant beneficiaries to remove the respondent as administrator and trustee and replace her with the Public Trustee of Queensland. 

[2] I also agree with Margaret Wilson J's proposed orders.

[3] WHITE JA: I have read the reasons for judgment of Margaret Wilson J and agree with those reasons and the orders proposed by her Honour.

[4] MARGARET WILSON J: Sherri-Ann Buchanan was killed in a motor vehicle accident on 30 June 2009, when she was aged 25 years.  She was survived by two children – a daughter who was born on 20 January 2003 and a son who was born on 26 October 2004.  She died intestate.

[5] The appellant Allan Wayne Pierpoint is the father of the children.  He and Ms Buchanan entered into a de facto relationship in about June 2001, when he was 23 years old and she was 17.

[6] The respondent Lenora May Liston is Ms Buchanan’s mother and the administrator of her estate pursuant to letters of administration granted by the Court.

[7] By an originating application filed on 7 July 2010 and amended on 19 October 2010, the appellant sought a declaration that he was Ms Buchanan’s de facto partner, orders that the letters of administration granted to the respondent be revoked and a grant made to him, alternatively an order that the respondent be removed as the administrator and or as trustee of the estate, and an order that the Public Trustee be appointed as trustee for the children.

[8] On 27 October 2011 a Judge of the Trial Division dismissed the application.

[9] The parties made written submissions on costs.  The appellant asked for his costs out of the estate on the standard basis.  This was opposed by the respondent.  The respondent asked for an order that the appellant pay her costs of and incidental to the application on the standard basis.  On 15 December 2011 they made oral submissions.  As her Honour observed, the respondent as trustee was entitled to recover her costs from the estate without the need for an order.  She ordered that the appellant’s costs of the hearing on that day be paid from the estate, and that otherwise there be no order for costs of the proceeding.  She gave leave to appeal against the costs order.

[10] The appellant has appealed against both the dismissal of his substantive application[1] and the costs order.[2]

The estate

[11] The respondent deposed that Ms Buchanan’s estate was comprised principally of superannuation death benefits paid by Colonial First State in the amount of $375,000.  In addition approximately $12,000 was received from Lumley Insurance.  There was a small amount in a Commonwealth Bank account, and household and personal effects.

[12] According to the respondent’s affidavit sworn on 5 November 2010 –

“32.There is a second superannuation fund, AGEST, which has made a decision to pay a further $230,000 in death benefits to [her] as trustee for [the daughter] and [the son], as a result of an application made by [her] on their behalf. However, the [appellant] has objected to this decision.”

Entitlement to the estate

[13] The distribution of the estate of an intestate is provided for in part 3 division 2 and Schedule 2 of the Succession Act 1981 (Qld).

(a)If the applicant was Ms Buchanan’s spouse within the meaning of that Act, he is entitled to $150,000, the household chattels, and one-third of the then remaining residuary estate. Each child is entitled to one-third of the then remaining residuary estate.

(b)If he was not her spouse, then the children are entitled to the whole estate in equal shares.

To whom letters of administration might have been granted

[14] Section 6 of the Succession Act 1981 (Qld) provides (relevantly) –

“6Jurisdiction

(1)Subject to this Act, the court has jurisdiction in every respect as may be convenient to grant and revoke probate of the will or letters of administration of the estate of any deceased person, to hear and determine all testamentary matters and to hear and determine all matters relating to the estate and the administration of the estate of any deceased person; and has jurisdiction to make all such declarations and to make and enforce all such orders as may be necessary or convenient in every such respect.

…

(3)A grant may be made to such person and subject to such provisions, including conditions or limitations, as the court may think fit.

(4)Without restricting the generality of subsections (1) to (3) the court has jurisdiction to make, for the more convenient administration of any property comprised in the estate of a deceased person, any order which it has jurisdiction to make in relation to the administration of trust property under the provisions of the Trusts Act 1973.”

[15] Rule 610 of the Uniform Civil Procedure Rules 1999 (Qld) contains a descending order of priority of persons to whom the Court may grant letters of administration on intestacy.  But the Court is not bound by the prescribed order of priority: it may make a grant to any person in priority to a person mentioned in the list.  So far as presently relevant, the order of priority prescribed in sub-rule (1) is –

(a)surviving spouse;

(b)children;

(d)parent/s;

(j)anyone else the court may appoint.

Letters of administration

[16] The respondent instructed ATSI Legal Service of Charleville to obtain letters of administration.  She duly advertised her intention to apply for a grant of letters of administration, but the appellant was unaware of it.

[17] On 9 September 2009 letters of administration were granted to the respondent –

“As Litigation guardian of [the daughter] and [the son] children of the deceased and for the use and benefit of the said children and until they shall become adults.”

[18] The appellant learnt of the grant a few days after it was made, when the solicitors he consulted about Ms Buchanan’s superannuation and death benefit policies with Colonial First Estate (Ryan Lawyers of Gatton) conducted a relevant Supreme Court search.

[19] The appellant impugned the grant on the grounds –

(a) that it should have been made to him as the surviving spouse; and

(b) that it should have been made to him as the parent of the children.

Administration of the estate

[20] The respondent retained Russell Creevey Lawyers [sic] in relation to estate matters in late 2009 or early 2010.  From about early May 2010, she retained de Groots Wills & Estate Lawyers.[3]

[21] The appellant claimed to be entitled to share in the estate as Ms Buchanan’s de facto spouse, in accordance with the intestacy provisions in the Succession Act.

[22] On 18 June 2010 de Groots wrote to the appellant’s solicitors advising that their client intended making a final distribution of the estate to the children on 5 July 2010.  On 6 July 2010 they advised that unless the appellant filed and served his application in the meantime, the respondent would distribute the estate at 4 pm the next day.

[23] The appellant sought the removal of the respondent as administrator because of misconduct in the administration.  He made the application in his capacity as the children’s surviving parent [sic].

Was the appellant Ms Buchanan’s spouse?

[24] Section 5AA of the Succession Act provides –

“5AAWho is a person's spouse

(1)Generally, a person's spouse is the person's -

…

(b)de facto partner, as defined in the Acts Interpretation Act 1954 (the AIA), section 32DA; or

…

(2)However, a person is a spouse of a deceased person only if, on the deceased's death -

…

(b)the following applied to the person–

(i)the person was the deceased's de facto partner, as defined in the AIA, section 32DA;

(ii)the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased's death; or

(ba)the person was the deceased's registered partner; or

…

(3)Subsection (2) applies–

(a)despite the AIA, section 32DA(6) and section 36, definition spouse; and

(b)whether the deceased died testate or intestate.

[25] Section 32DA of the Acts Interpretation Act 1954 (Qld) provides –

“32DAMeaning of de facto partner

(1)In an Act, a reference to a de facto partner is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

(2)In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances–

(a)the nature and extent of their common residence;

(b)the length of their relationship;

(c)whether or not a sexual relationship exists or existed;

(d)the degree of financial dependence or interdependence, and any arrangement for financial support;

(e)their ownership, use and acquisition of property;

(f)the degree of mutual commitment to a shared life, including the care and support of each other;

(g)the care and support of children;

(h)the performance of household tasks;

(i)the reputation and public aspects of their relationship.

(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

(4)Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.”

[26] The appellant contended that the primary judge’s finding that he had failed to show that he and Ms Buchanan lived together as a couple on a genuine domestic basis within the meaning of s 32DA(2) of the Acts Interpretation Act for a continuous period of two years ending on her death was against the evidence and the weight of the evidence, and wrong.

[27] The relationship between the appellant and Ms Buchanan was volatile, marked by separations and reconciliations.  At least in the early period to November 2004, it was affected by domestic violence and drug and alcohol abuse.  It was also affected by his mental illness.

[28] The primary judge undertook a very thorough and careful analysis of the evidence by reference to the matters listed in s 32DA(2).  That evidence consisted not only of the appellant’s narrative account of the relationship, but also evidence from others who observed them, including the respondent, the appellant’s mother, friends and neighbours, a mental health nurse, and exhibits such as school records, tax returns, etc.

[29] In October 2007 a protection order under the Domestic and Family Violence Protection Act 1989 (Qld) was made against the appellant.  It included a condition prohibiting him from going to, entering or remaining on premises where Ms Buchanan resided or worked,  except for the purpose of contact with the children as set out in a written agreement between them or as permitted by an order under the Family Law Act 1975 (Cth).  In September 2008 the protection order was varied on Ms Buchanan’s application to remove the second condition.

[30] The appellant applied for a disability pension in July 2006 on the basis that he was single.  He never notified Centrelink of any change in his status while Ms Buchanan was alive.  In the affidavit he swore in the burial proceeding, the applicant described himself as Ms Buchanan’s de facto spouse.  But during the course of that proceeding he abandoned reliance on that allegation after receiving advice that he risked criminal prosecution for claiming Centrelink benefits as a single person.

[31] The appellant’s tax returns for 2006, 2007 and 2008 were prepared by Gatton accountants and showed his home address as his parents’ address.  In relation to the Medicare surcharge, it was only for the 2007 tax year that he showed two dependent children.

[32] A Medicare Private card for private health insurance issued on 15 August 2006 listed Ms Buchanan as number 1, the appellant as number 2, and the children as numbers 3 and 4.  There was no other evidence adduced to show that private health insurance as a family group including the appellant was maintained.

[33] The trial judge analysed the evidence of the relationship essentially in a chronological fashion, making findings in resolution of conflicting evidence as she went.  Her Honour was satisfied that the de facto relationship had ended before Ms Buchanan’s death.  In the last two years, there were two separations.  The first was not permanent: it lasted for about six weeks from when Ms Buchanan returned to Charleville after the January 2008 flood.  Her Honour was satisfied that Ms Buchanan intended that the second separation, from early May 2009, be permanent, and that although there was some ongoing contact between her and the applicant, principally in the interests of the children, there was no mutual intention to resume the de facto relationship.

[34] After surveying the evidence, her Honour said –

“Was the applicant the de facto partner of Ms Buchanan for the purpose of the Act?

[69]The applicant concedes that there were periods of separation during the two years that preceded the death of Ms Buchanan, but asserts that there was never any period of permanent separation, as the separations occurred to enable him to deal with the medication for his schizophrenia without affecting his ongoing relationship with Ms Buchanan.  The applicant submits that the public aspects of their relationship were ‘clouded’ by Ms Buchanan’s receipt of the single parenting payment from Centrelink.

[70]The respondent submits that even if the applicant and Ms Buchanan were still in a de facto relationship two years prior to her death, that relationship had ceased permanently in early 2008 when Ms Buchanan moved to Charleville or when the parties separated in early 2009.  The respondent submits that the evidence of communications between the applicant and Ms Buchanan in the two years prior to her death have to be considered in the context that Ms Buchanan was facilitating contact between the applicant and their children. 

[71]The parties have made submissions by reference to each of the circumstances set out in s 32DA(2) of the AIA.  I will set out my findings in relation to each of these circumstances to the extent that they are relevant in determining the issue in this matter.

[72]There was not a common residence for the applicant and Ms Buchanan for at least the period of six weeks when she relocated to Charleville after the floods in January 2008 and from the time they separated in early May 2009.  Although there was evidence of increasing contact between the applicant and Ms Buchanan in June 2009, in the absence of evidence of reversal by Ms Buchanan of her public notification of their separation which was confirmed in the telephone call with Ms Bowater as late as 18 June 2009, I am not satisfied that the applicant has shown that the parties had resumed living together before her death.  The fact that the applicant stayed overnight with the applicant (sic) and the children on 29 June 2009 is equivocal, as he was helping them prepare for the journey on 30 June 2009.

[73]Their relationship covered the period from June 2001 until 30 June 2009 with periods of separation.

[74]A sexual relationship existed throughout that period when the parties were staying in the same residence. 

[75]After November 2004, the applicant and Ms Buchanan maintained separate finances.  It is a relevant, though not a decisive circumstance, that their respective communications with Centrelink and the Taxation Office were on the basis that each maintained a single status.

[76]Ms Buchanan rented solely each property in which she resided after November 2004 and the applicant maintained this [sic] parents’ address as his address.  The applicant had the use of Ms Buchanan’s household goods when he resided with her. 

[77]The degree of commitment to a shared life with Ms Buchanan was affected by the applicant’s medical and associated personal problems.  I accept that during the two years’ preceding the death of Ms Buchanan the applicant was involved in his children’s activities and shared with the applicant the joys of their experiences, as shown by the photographs and videos.  In view of my finding, however, that there were two periods of separation during that period of two years, the key to determining whether the applicant and Ms Buchanan remained in a de facto relationship, despite the separations, is whether the separations had the quality of permanence in the sense referred to in S v B[4] at [48].

[78]The effect of a separation of parties who were in a de facto relationship must be judged objectively by the parties’ conduct at the time of the separation in the context of their relationship.  A subsequent reconciliation of the parties does not necessarily mean that the separation was not intended by at least one of the parties to be permanent when it occurred.  A repeated pattern of separation followed by reconciliation, however, might affect how the separation should be viewed.

[79]While Ms Buchanan remained in Gatton between 2005 and October 2007, there was a pattern of conflict between the applicant and Ms Buchanan, the applicant leaving the home in which Ms Buchanan resided and staying with his parents, and then returning to live with Ms Buchanan.

[80]The move by Ms Buchanan from Gatton to Charleville in January 2008 after obtaining the protection order on 10 October 2007 broke that pattern.  At the time Ms Buchanan intended that relocation to be a permanent break and communicated that to the applicant by her unequivocal actions at the time.  The break lasted at least six weeks.  I am satisfied that in the circumstances of the history of their relationship, it brought any de facto relationship to an end.  It does not affect this conclusion that the applicant may have wanted the relationship to continue.  The subsequent reconciliation did not obliterate the effect of this permanent separation.

[81]The separation that was notified in May 2009 by Ms Buchanan also broke the pattern of the earlier Gatton separations.  It was publicly notified at the time it occurred and subsequently confirmed to Ms Bowater.  Ms Buchanan also attempted to deal with the consequences of the separation for their children.  Any de facto relationship that still subsisted by May 2009 was brought to an end by the uncompromising position taken by Ms Buchanan in May 2009 and that position did not change before her death.

[82]The applicant has failed to show that he and Ms Buchanan had lived together as a couple on a genuine domestic basis within the meaning of s 32DA(2) of the AIA for a continuous period of two years ending on Ms Buchanan’s death.” [5]

[35] This appeal is by way of rehearing.[6]  In order to succeed the appellant must show that the decision appealed from was the result of some legal, factual or discretionary error.[7]  Where a finding of fact depends on a view taken of conflicting testimony, a trial judge has an advantage in observing witnesses give their evidence.  In such a case error is established only –

(a) where the trial judge failed to use or palpably misused this advantage; or

(b) where incontrovertible facts or uncontested testimony demonstrate that the trial judge’s conclusions were erroneous; or

(c) where the appellate court concludes that the decision at trial was glaringly improbable or contrary to compelling inferences.[8]

[36] Counsel for the appellant pointed to only one matter as being an error in the trial judge’s fact finding.  He submitted that Her Honour erred in saying that his client had conceded that on 8 May 2009 Ms Buchanan had reported to the police that she had separated from him.[9]  The relevant exchange in cross-examination was as follows –

“On the 5th of August 2008 you were convicted in Gatton in the Gatton Magistrates Court of breaching a domestic violence order?-- Yes.

And you were sentenced to one month imprisonment suspended for nine months?-- Yes.

On the 8th of May 2009-----?-- Yes.

-----Sherri-Ann reported to the police that she had recently separated from you?-- Yes.

And, in fact, that was correct. On the 8th of May 2009 she had in fact recently separated from you?-- 8th of May 2009, no. That is not correct.

So you are saying that she lied to the police?-- Yes. See, if I can answer this the way that it is, Sherri-Ann - we'd have heated arguments and if she was starting to lose the argument, she would call the police, ‘get out, get out.’ These - all these domestic violence, they were not physical.

Well, let's go back. On the 27th-----?-- Excuse me, I hadn't finished. Sorry, your Honour, but I was-----

HER HONOUR: No, finish?-- Early on, yes, there was physical involved, but as soon as the drugs and all that were gone, the violence - the physical violence and it turned to more verbal.” [10]

[37] As I interpret this evidence, the appellant conceded that Ms Buchanan had reported to police that she had recently separated from him, but denied that there had in fact been a separation.  Her Honour did not err in finding that the appellant conceded that on 8 May 2009 Ms Buchanan had reported to the police that she had separated from him.

[38] I have reviewed the evidence.  The trial judge made proper use of the advantage she had in seeing and hearing the witnesses give evidence.  The objective evidence, although limited, was not inconsistent with her Honour’s finding.  Nor was her Honour’s finding glaringly improbable or contrary to compelling inferences.

[39] In short, the appellant has not demonstrated any error in her Honour’s fact finding or reasoning.  He has not demonstrated that she erred in not finding that he was Ms Buchanan’s spouse within the meaning of s 5AA of the Succession Act.

Relations between appellant and respondent

[40] At least since Ms Buchanan’s death, relations between the appellant and the respondent have been hostile, with very little effective communication between them.

[41] The appellant was diagnosed with schizophrenia in 2001.  There have been times when his illness has been in remission and other times when it has been florid.  He has been prescribed medication to help control the symptoms.  At times he has suffered side effects from the medication; at other times he has failed to take it as prescribed, and suffered relapses.  In addition, he has abused alcohol and taken illicit drugs. 

[42] In 2006 the appellant started to receive a disability support pension.  From time to time he had some employment in labouring positions.

[43] The respondent is an Indigenous woman who was aged 46 at trial.  Her home is in Charleville, where Ms Buchanan went to school.  In 2005 the respondent separated from her husband (Ms Buchanan’s step-father), and moved to Gatton with another daughter.  She and her daughter returned to Charleville in 2008, where she ran a mowing business.

[44] The respondent applied for a declaration that she was entitled to possession and control of Ms Buchanan’s body for the purpose of burial in the Charleville cemetery.  The application came before JS Douglas J on 15 July 2009, when the respondent was represented by ATSI Legal Service and the appellant was represented by Caxton Legal.  His Honour made the declaration sought.

[45] Soon after Ms Buchanan’s death, the respondent applied to the Federal Magistrates Court for an order that the children live with her.  She expressed concern for their welfare, given the appellant’s drug and alcohol abuse and what she alleged was a history of violence by him towards Ms Buchanan and the children.  By the time of trial, there had been several hearings before the Federal Magistrates Court.  The children were still living with the appellant, although she was having some contact with them.

Power to remove respondent as administrator and trustee

[46] The court has power to revoke a grant of probate or letters of administration pursuant to s 6(1) of the Succession Act 1981 (Qld).

[47] Generally, the Court will revoke a grant of probate only on application by a person with an interest or the possibility of an interest under the will,[11] although it can act on its own motion to revoke a grant made per incuriam or even on false premises.[12]  In principle, the court should adopt a similar approach to an application to revoke letters of administration.

[48] It may be that the appellant’s claim to be Ms Buchanan’s surviving spouse was sufficient to give him standing to apply for revocation of the letters of administration, even though that claim was not ultimately established.  His counsel relied in the alternative on his being the guardian of the infant children, who clearly had an interest in the estate and a higher priority than the respondent in the list set out in r 610(1) of the Uniform Civil Procedure Rules 1999 (Qld) of persons to whom letters of administration might be granted.  The better view seems to be that, in order to bring the application on behalf of the children, he needed to become their litigation guardian pursuant to rr 93 – 95 of the UCPR.

[49] On an application to remove a personal representative, the Court’s ultimate concern must be with the due administration of the estate in the interests of creditors and beneficiaries.  Generally, it will not remove a personal representative in the absence of actionable misconduct.

Should the respondent be removed as administrator and trustee?

[50] As the trial judge recorded in her reasons for judgment, the appellant impugned the grant of letters of administration to the respondent on the technical ground that it should have been made to him as the parent of the children.  He was prepared to take on the role of guardian ad litem for them in relation to the administration of their mother’s estate and to apply for the grant.  But, as her Honour said –

“[84]… While the [appellant] contended that he was the de facto partner of Ms Buchanan, his interests did not coincide with those of his children in relation to the estate and it was not appropriate for him to seek the grant on behalf of his children. It does not follow from the fact that the [appellant] is the parent of the beneficiaries that the grant should now be revoked without cause or that the [appellant] should be substituted as litigation guardian.” [13]

[51] At the trial, the misconduct alleged by the appellant against the respondent was particularised as –

(a) the respondent’s use of estate funds to pay for petrol to visit the children;

(b) purchase of a block of land in Charleville;

(c) purchase of a ride-on mower when the respondent had her own mowing business and her own mower.

Travel and accommodation expenses

[52] The respondent used estate funds to pay accommodation and fuel expenses she incurred in travelling to Toowoomba to spend time with the children in accordance with orders made in the family law proceedings in the Federal Magistrates Court.

[53] The trial judge noted the respondent’s explanation that she was confused about what expense should be paid from the estate initially, because her visits to her grandchildren were court ordered.  Her Honour said –

“[87]This proceeding is not for the purpose of taking an account in relation to the respondent’s administration. Any expenses that have not been incurred for the administration on [sic] the estate must be reimbursed by the respondent to the estate. The respondent conveyed in the course of her evidence that she better understands her role now as administrator and has obtained advice for that purpose.”[14]

Purchase of land

[54] In April 2010 the respondent used estate funds to purchase a block of vacant land in Charleville for $48,000.  It was transferred to her “as trustee”.  In her affidavit sworn on 5 November 2010 she has deposed to her intention to construct a four bedroom house on the land and rent it out as an investment.

[55] The respondent expended approximately $1,650 of estate funds in legal costs associated with the purchase of the land.

[56] The appellant was critical of that investment, asserting that the purchase was made on a falling market.  The trial judge was of the view that the evidence on which he relied did not support that assertion.  Her Honour observed –

“[88]In April 2010 the respondent as trustee purchased a block of land at Charleville for $48,000. She intends using the estate funds to build a house on the property to generate income. The applicant is critical of that investment and relies on monthly median house price figures for Charleville that he found on a site on the internet to assert that the purchase was made in a falling market. Those figures did not support that assertion. The respondent will need to keep the investment under review, as it may not be prudent to retain it as an investment, if it does not become income producing, unless capital accretion is assured.”[15]

Purchase of ride-on mower

[57] The respondent also purchased a ride-on mower with estate funds.  In the same affidavit she deposed to using it to maintain the property.

[58] The trial judge accepted the respondent’s evidence that she intended to sell the mower and pay the proceeds back to the estate when the house has been built, and that she did not use it in her business.[16]

[59] Legal fees

By 23 November 2010 the respondent had expended almost $70,000 of estate funds on legal costs.  It is not clear how much, if any, of that amount related to this litigation, which was commenced in July 2010.

[60] The trial judge noted the appellant’s criticism of these fees, but observed that this proceeding was not the forum for scrutinising them.[17]

Proposed financial management plan

[61] In her affidavit sworn on 5 November 2010 the respondent said –

“I am in the process of obtaining a financial management plan for the estate.  Once this proceeding has been determined, and the AGEST superannuation death benefits have been paid out (hopefully to the children), I will invest all of the funds (remaining after the house has been built) in a portfolio which will be kept for the children's future care, welfare and education.” [18]

The trial judge’s conclusion about the administration of the estate

[62] Her Honour said –

“[90]It seems that the applicant’s complaints against the respondent have partly arisen as a result of communication problems between them. Although other trustees may not have made the same investments that the respondent has chosen to do so at this stage, the applicant’s allegations do not amount to actionable misconduct.

…

[92]I am not satisfied that the applicant has shown that there are grounds for removing the respondent from her role as the administrator and trustee of Ms Buchanan’s estate.”[19]

Arguments on appeal

[63] Counsel for the appellant reagitated the matters of alleged misconduct argued at first instance.  He also relied on the respondent’s failure to pay the children’s school fees out of the estate.

[64] Counsel for the respondent opposed the removal of her client as administrator.  Counsel informed the Court that her client’s position was that, if the Court were minded to remove her, she would support the appointment of the Public Trustee, but not the appointment of the appellant, as administrator and trustee.  She was nevertheless concerned at the extra cost to the estate which would be occasioned by the appointment of the Public Trustee.

[65] Counsel for the appellant informed the Court that the Public Trustee had consented to act, but his consent is not in the appeal record.

School fees

[66] When their mother died, the children were attending a Catholic primary school at Gatton.  Their school fees had been in arrears for some time.[20]  They continued to attend that school after her death, and by the time the originating application was heard in July 2011, the fees were in arrears to the extent of $4,070.

[67] On 29 April 2010 the appellant’s solicitors wrote to the respondent, enclosing correspondence from the school advising that the children’s school fees for the 2010 year were $2,260, and enclosing a copy of relevant correspondence from the school.  They said –

“Could you please arrange for this amount to be paid to our Trust Account so that we may attend to payment of the outstanding school fees.”

In response, de Groots wrote on 14 May 2010 –

“Our client, as administrator of the estate of her late daughter, is agreeable to paying the school fees directly upon presentation of tax invoices. Please arrange for the invoices to be sent directly to her.”

The appellant’s solicitors forwarded the invoices on 31 May 2010,[21] who responded on 18 June 2010 –

“Our client has written directly to the school and will advise you in due course.”[22]

[68] The fees were not paid from the estate.[23]  A Statement of Fees and Levies issued to the appellant on or about 5 July 2011[24] showed a balance brought forward of $3,480 together with further fees and levies of $590, making a total of $4,070.  The statement called for payment by 2 September 2011.  The fees remained unpaid when the primary judge heard the costs application on 15 December 2011.[25]

Discussion

[69] The conduct complained of fell short of the sort of actionable misconduct which would enliven the principles applicable to the removal of a personal representative.  But from a broader perspective, it is not in the best interests of the children that the respondent continue to administer the estate and that she be the trustee of their inheritance until they attain their majority.

[70] The children live with their father (the appellant) in Gatton, while the respondent lives a long way away in Charleville.  The wisdom of some of the decisions the respondent has made is questionable, even if they do not amount to misconduct or maladministration in the technical sense. It is very concerning that she failed to attend to payment of their school fees out of the estate over such an extended time.  This is symptomatic of problems inherent in the physical distance separating them in their daily lives and of ongoing bad feeling and lack of communication between the appellant and the respondent.

[71] I am unpersuaded that the appellant would be a suitable person to fill the void, given his mental health and other personal issues.

[72] Section 31(1) of the Public Trustee Act 1978 (Qld) provides –

“31Appointment of public trustee in the place of existing personal representative

(1)Where a grant of probate or of letters of administration has been made to any person and part of the estate the subject of such grant is unadministered, the public trustee or any person interested may apply to the court, on the ground that it is for the benefit of any person who is or may be found to be interested in such estate that the existing executor or administrator be removed and that the estate be administered by the public trustee, for the granting of an order to administer to the public trustee and the court may make such order on the application as it thinks fit.”

[73] An application under s 31(1) may be made by “any person interested” on the ground that it is “for the benefit of any person who is or may be found to be interested in [the] estate”.  It seems, then, that the applicant need not himself or herself have, or claim to have, an interest in the estate.

[74] In my view the appellant had the necessary standing to make an application under s 31(1).  He claimed (unsuccessfully) to be Ms Buchanan’s surviving spouse within the meaning of the Succession Act.  He was in a de facto relationship with her for some years, and was the father of her infant children, who were entitled to her estate in accordance with the intestacy rules.

[75] In Re Estate of Maschke[26] Cullinane J said of s 31(1) –

“The Court’s power, it would seem to make an order under this section, is dependent upon part of the estate being unadministered… and it being demonstrated that it is for the benefit of any person interested in the estate that the personal representative be removed and that the estate be administered by the Public Trustee.

No neglect or default or misconduct on the part of the personal representative is required. (See Re Peter James Gill.[27]) However, conduct of this kind would be relevant to the second of the matters I have referred to.

In my view, the exercise of the power to remove a personal representative and appoint the Public Trustee under the section requires the existence of substantial cause for doing so. Antipathy between the personal representative and the beneficiaries will not without more, except perhaps in special circumstances, be sufficient.”

[76] In Re Peter James Gill Master White (as her Honour White JA then was) said –

“The object of the Court is the due and proper administration of the estate and the interests of the parties beneficially entitled to it, see Halsbury 4th edition Volume 17 para 1060. When such a facultative provision as s 31(1)(a)[28] is available, in the circumstances of this application it is not appropriate to point to the passing of accounts or an action in devastavit to protect the interests of the beneficiaries with attendant great expense to this not large estate.”

[77] To the extent that the respondent may have passed from being the administrator of Ms Buchanan’s estate to being a trustee in respect of any of her property, the Court has power to remove her and to appoint a substitute trustee pursuant to s 80(1) of the Trusts Act 1973 (Qld).  Section 38(1) of the Public Trustee Act provides –

“38Public trustee may be appointed new or additional trustee

(1)The public trustee may be appointed as a new trustee or as an additional trustee in the same cases, in the same manner and by the same persons or court as if the public trustee were a private person.”

I did not understand the respondent to challenge the appellant’s standing to apply for the appointment of a new trustee in circumstances where the Court determined to remove her as administrator.

[78] In all of the circumstances, the removal of the respondent as administrator and trustee and the appointment of the Public Trustee in her stead would be for the benefit of the children.

Appeal against costs order

[79] Counsel for the appellant submitted that the trial judge ought to have ordered that his client’s costs be paid out of the estate.  His principal submission centred on his client’s contention that he was in a de facto relationship with Ms Buchanan at the time of her death, and that this was therefore a case of a genuine dispute as to the entitlement to a fund.  Further, he submitted, the case was analogous to probate proceedings, one of the matters in issue being entitlement to administer the estate.  Finally, he submitted that the presumption that each party should bear his or her own costs in property disputes between former de facto partners[29] was relevant to the exercise of the discretion as to costs in the present proceeding.

[80] Counsel for the respondent submitted that the application had not been brought to determine entitlement to a fund.  Nor was the case about who was entitled to administer the estate: that had been determined by the grant of letters of administration, against which there was no appeal.

[81] The appellant’s argument that he was Ms Buchanan’s spouse within the meaning of the Succession Act was both the foundation of his claim to share in the estate pursuant to the intestacy rules and an important part of his claim that the respondent should be removed as administrator and trustee and replaced by him.

[82] At trial, most of the evidence (both by affidavit and in oral examination) related to whether he was her spouse.  So, too, most of the submissions (both written and oral).  He was unsuccessful on that issue, and I do not consider there is any reason to disturb the trial judge’s finding.

[83] The trial judge found against him, too, in his application for removal of the respondent as administrator and trustee.  I would come to a different conclusion on that issue, but not on the basis advanced by him.

[84] Finally, I do not consider that the legislative provision about disposition of costs in a property dispute between former de facto partners relevant to the disposition of costs in this proceeding.  In that regard, I disagree with the trial judge.

[85] Costs were in the discretion of the trial judge.  I am unpersuaded that her Honour erred in the exercise of that discretion, and so I would not disturb her decision on costs at first instance.

Costs of the appeal

[86] The appellant has, on my view, had only limited success on the appeal - and then on a ground he did not argue at first instance.

[87] In the circumstances, I would not make any order as to the costs of the appeal.

Disposition

[88] I would make the following orders:

(1)   Appeal against order dismissing the application allowed.

(2)   Set aside the order dismissing the application.

(3)   Instead, order –

i.  that the respondent be removed as administrator of the estate of Sherri-Ann Buchanan, and, subject to his consent, the Public Trustee of Queensland administer the unadministered estate of the said deceased; and

ii.  that the respondent be removed as trustee of the estate of the said deceased, and, subject to his consent, the Public Trustee of Queensland be appointed trustee of the estate of the said deceased.

(4)   Appeal against costs order refused.

(5)   No order as to the costs of the appeal.