Burton v Spencer
[2014] QCA 204
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- Unreported Judgment
- Appeal Determined (QCA)
- Burton v Spencer[2014] QCA 204
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Burton v Spencer[2014] QCA 204
Burton v Spencer[2014] QCA 204
SUPREME COURT OF QUEENSLAND
PARTIES: | DAPHNE BURTON |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | Application for Security for Costs |
ORIGINATING COURT: | |
DELIVERED ON: | 22 August 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 August 2014 |
JUDGE: | Gotterson JA |
ORDERS: | 1. Pursuant to r 772 of the Uniform Civil Procedure Rules the appellant provide security for the costs of the appeal in the sum of $10,000 in a form approved by the Registrar.2. Such security be provided on or before 24 October 2014.3. Until the security is given, no party to the appeal take any further step in it without the leave of a judge of the Court of Appeal.4. Each party’s costs of this application be costs in the appeal. |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where the deceased died intestate – where the respondent claimed that he and the deceased were in a de facto relationship – where the respondent obtained Letters of Administration – where the applicant (the deceased’s mother) filed an application seeking the Letters of Administration to be revoked – where the learned trial judge revoked the Letters of Administration on the basis that the respondent had not proven that he and the deceased lived “together as a couple on a genuine domestic basis” – where the respondent appeals the decision of the learned primary judge – where the respondent has sworn that he is impecunious and has no assets of significant value – whether the appeal has prospects of success – whether there should be security for costs Acts Interpretation Act 1954 (Qld), s 32DA Succession Act 1981 (Qld), s 5AAUniform Civil Procedure Rules 1999 (Qld), r 772 Perry v Killmier [2014] QCA 64, cited |
COUNSEL: | D B Fraser QC for the applicant S J Keim SC for the respondent |
SOLICITORS: | Connolly Suthers for the applicant Purcell Taylor for the respondent |
[1] GOTTERSON JA: On 23 June 2014, reasons for judgment were delivered in proceedings in which the principal issue was whether at the date of death of Sharon Ann Burton on 6 July 2012, Kent Richard Spencer had been her de facto partner as that term is defined in s 32DA of the Acts Interpretation Act (Qld) 1954 for a continuous period of at least two years ending on the date of death. Any entitlement he had to share in her estate upon an intestacy as a spouse under s 5AA of the Succession Act 1981 was dependent upon an answer in his favour on the principal issue. However, the issue was resolved against him.[1]
[2] On 10 July 2014, Mr Spencer, as appellant, filed a notice of appeal against the judgment. The respondent to the appeal is Daphne Burton. Sharon Burton was her daughter. She was the applicant below. She had applied for a declaration against Mr Spencer on the principal issue and for revocation of letters of administration which had been granted to him on 14 August 2012.
[3] An application for security for costs pursuant to r 772 of the Uniform Civil Procedure Rules was filed by Ms Burton on 14 August 2014. Security is sought in the amount of $55,000. An estimate of her costs for defending the appeal is set out in the affidavit of Esetia Jane Cox sworn on 8 August 2014. The estimate is for $48,200. On 30 July 2014, Ms Cox wrote to Mr Spencer’s solicitors in terms from which it is clear that this is an indemnity cost-based estimate. On a standard basis, her estimate of the respondent’s costs is “not less than $20,000”.
[4] The application is made promptly. Two factors dominate my consideration of the application. One is the merits of the appeal. The other is Mr Spencer’s asserted impecuniosity.
Merits
[5] The decision which the learned primary judge was required to make was whether Mr Spencer and the deceased had been “living together as a couple on a genuine domestic basis” as contemplated by s 32DA during the two years immediately prior to her death. To make that decision required first that factual findings be made concerning the couples’ circumstances including some eight types of circumstance which are listed in the section.
[6] Despite findings of closeness and intimate affection, and of at least lengthy periodic co-habitation during the 13 years prior to death, the learned primary judge concluded that within the last two years, there was not such a degree of mutual commitment as the section envisages. He was influenced to that view particularly by evidence that Mr Spencer was then carer for Centrelink purposes of his mother who lived at another address, and that he was running his own business. That, his Honour thought, left “precious little time” for a committed relationship with the deceased.
[7] The other highly influential circumstance in his Honour’s assessment was that the two had never owned property jointly and did not have a joint bank account. The deceased had owned a house in her name. Mr Spencer had carried out work on it. Neither that house nor property successively owned by the deceased after it was sold was ever transferred to joint ownership.
[8] The notice of appeal nominates some 12 grounds of appeal. A number of them challenge findings of fact which were credit-based. The learned primary judge had found Mr Spencer to be an unimpressive witness. Challenges of this kind have their obvious difficulties.
[9] However, other arguable themes can be detected within the grounds of appeal. One is that the ultimate finding on the lack of sufficiency of mutual commitment is irreconcilable with findings made by his Honour as to the closeness of the enduring relationship. Another is that undue weight was given to the circumstances of how property was owned and to the absence of a joint bank account. A parallel was drawn with the decision in Perry v Killmier[2] in which it was held by this Court that too great a role was given to financial and property matters in determining whether the plaintiff was a de facto partner of the deceased who had been killed in a motor vehicle accident.
[10] Overall, my necessarily tentative impression is that whilst this may be a difficult appeal for Mr Spencer to win, it cannot be said that he is destined to fail. He has some, but no better than modest, prospects of success.
Impecuniosity
[11] Mr Spencer has sworn that he is impecunious. He has no land or other assets of significant value. I was unimpressed with the suggestion that this was largely due to looking after the deceased in the last few months of her life. She died more than two years ago now. I was also unimpressed by his failure to restore to the estate some $97,000 which he withdrew from it for his own purposes whilst grantee of the letters of administration.
[12] Despite these matters, his appeal should not be stifled by a crippling order for security for costs. Any security that is ordered ought to be at a level which is reasonably within his capacity to muster. He retains his income earning capacity. At the hearing of the application, his counsel indicated that, given time, he could get together $5,000 or, at most $10,000, by way of security.
Conclusion
[13] The facts that Mr Spencer has had his day in court and lost and that Ms Burton will have to incur costs in defending the appeal persuade me that this is a case in which security for costs should be ordered. Given the modest prospects, Ms Burton is at a real risk of having the benefit of a costs order on the appeal which Mr Spencer cannot pay.
[14] I fix the amount of security for costs at $10,000. I would allow a generous period of two months for the security to be provided. No further step should be taken in the appeal until the security is given.
[15] The orders of the Court are: