McElligott v McElligott
[2014] QCA 54
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- McElligott v McElligott[2014] QCA 54
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McElligott v McElligott[2014] QCA 54
McElligott v McElligott[2014] QCA 54
SUPREME COURT OF QUEENSLAND
PARTIES: | ADRIAN EDWIN McELLIGOTT as executor of the estate of JOYCE ALICE McELLIGOTT |
FILE NOS: | Appeal No 169 of 2014 SC No 6651 of 2013 |
Court of Appeal | |
PROCEEDING: | Miscellaneous Application – Civil |
ORIGINATING COURT: | |
DELIVERED EX TEMPORE ON: | 24 March 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 March 2014 |
JUDGES: | Holmes JA |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – OTHER MATTERS – where the appellant, a bankrupt, sought to appeal a decision of a trial division judge regarding declarations as to the interests of two of her children under a will and the vesting of her share of the residuary estate in the Official Trustee in Bankruptcy – where the Public Trustee was litigation guardian for the children – where the property of a bankrupt, including a chose in action, vests in the Official Trustee – where the appellant was not a party to the proceedings and has no interest arising from the will – where the appeal was improperly instituted – whether the notice of appeal should be struck out |
COUNSEL: | S F Downes for the applicant The first respondent appeared on her own behalf R T Whiteford for the second respondent S G Muller (sol) for the fourth respondent No appearance for the third, fifth and sixth respondents |
SOLICITORS: | Koolik & Associates for the applicant The first respondent appeared on her own behalf The Official Solicitor to the Public Trustee for the second respondent Rodgers Barnes & Green for the fourth respondent No appearance for the third, fifth and sixth respondents |
HOLMES JA: The first respondent to this appeal, Adrian McElligott, executor of the estate of the late Joyce McElligott, has applied for the striking out of the notice of appeal filed by the first respondent to the application, Lorain McElligott. Ms McElligott has sought to appeal a decision of a trial division judge, by which he made declarations as to the interests of two of her children under the will of Joyce McElligott and the vesting of Ms McElligott’s share of the residuary estate in the Official Trustee in Bankruptcy.
Ms McElligott was made bankrupt shortly before the will of the testatrix was executed, hence the declaration to the effect that her share vested in the Official Trustee in Bankruptcy. Under s 58 of the Bankruptcy Act 1966, the property of a bankrupt is vested in the Official Trustee. The definition of “property” in s 5 of that Act expands considerably what might in ordinarily parlance be considered to be property. It is quite clear that it would extend to a chose in action.
Ms McElligott seems to have appeared on the making of the application for declarations, but she was not named as a party to it. Her notice of appeal was filed out of time, not having been filed within the 28 days prescribed by rule 748 of the Uniform Civil Procedure Rules. Ms McElligott did raise the terms of the practice direction number 3 of 2013 as expanding that period, but the practice direction is concerned with time periods for the purposes of the practice direction itself and does not, in my view, have any bearing on the requirements of the Uniform Civil Procedure Rules. She has now sought an extension of time.
More importantly, as the executor and the Public Trustee and the Official Trustee in Bankruptcy point out, Ms McElligott was not a party to the proceedings. Any interest as a residuary beneficiary in the estate was not hers, but that of the Official Trustee, and any right of appeal has similarly vested in the Official Trustee. The Public Trustee has taken the further point that, so far as the notice of appeal concerns the declaration as to the interests of Ms McElligott’s children, it, as litigation guardian, is the party with locus standi to appeal. And the Official Trustee makes a similar point, that, having no interest in the residue of the deceased’s estate, Ms McElligott has no locus standi.
Ms McElligott argues that the judge at first instance should have found that she was under a legal disability, so that a trust contemplated by one of the clauses of the will would take effect. That particular provision reads:
If any person under the age of 18 years or under a legal disability is entitled to any gift under the provisions of my will, then, and in each case, my trustee shall hold in trust for such person the share to which they are entitled under my will.
As the trial judge observed, Ms McElligott’s beneficial interest, if she were under a legal disability, would also have vested in the Official Trustee. It is quite clear that Ms McElligott has personally no interest arising from the will. It has vested in the Official Trustee. That interest to date consists of a chose in action, rather than actual property; but nonetheless, it exists and it has vested. She was properly, therefore, not regarded as a party at first instance, and she has no interest which would give her standing to bring this appeal.
Section 44(2) of the Supreme Court of Queensland Act 1991 gives a Judge of Appeal the power to make an order or give a direction concerning the institution of an appeal or other proceeding in the Court of Appeal. It seems to me that in an instance where an appeal has been improperly instituted, that power extends to the striking out of the notice of appeal. Accordingly, I strike out the notice of appeal filed by Ms McElligott. Now, what are the submissions as to costs?
...
HOLMES JA: I’ve concluded that the fourth respondent should have its costs out of the estate. It has been brought here because of the issues entailing the estate; I appreciate that difficulty that causes, because the estate no doubt is shrinking steadily. But it seems to me that the Official Trustee is entitled to seek those costs and to be awarded them.
So the order I’ll make as to costs is that the fourth respondent should have his costs out of the estate of the late Joyce Alice McElligott; that the applicant and the second respondent should have their costs paid by the first respondent, Lorain McElligott; and also that Lorain McElligott should pay the costs of the estate so far as they were incurred in relation to the order regarding the fourth respondent.
Is there any further order?
MS DOWNES: Yes, I’ll send those orders through to your Honour’s associate. The basis upon which the fourth respondents costs are indemnity standard?
HOLMES JA: Well, the usual practice is indemnity, so, yes, I think it has to be an order on the indemnity basis. Thank you.