Kachel v Horrocks
[2012] QDC 328
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- Unreported Judgment
- Kachel v Horrocks[2012] QDC 328
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Kachel v Horrocks[2012] QDC 328
Kachel v Horrocks[2012] QDC 328
[2012] QDC 328
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 4829 of 2011
JOHN EDWARD KACHEL | Applicant |
and | |
GLENDA EVA HORROCKS and JAMIE KACHEL and KATHLEEN McNEISH and PETER O'KEEFFE and DANIEL QUALISCHEFSKI and | |
TORI QUALISCHEFSKI | Respondents |
BRISBANE
DATE 19/10/2012
ORDER
CATCHWORDS | Succession Act 1981 s 41 Applications by adult sons - whether court has jurisdiction to give effect to a compromise in their separate proceedings |
HIS HONOUR: The court makes orders in terms of an initialled draft which resolve two separate proceedings for further provision in the estate of Darryl Edward John Kachel by adult sons.
One was commenced in the Supreme Court, but by consent order of the parties made under rule 666 has been transferred to the District Court to become 1626 of 2012.
The value of the estate is uncertain, depending essentially on what the market will make of a property at Fordsdale. As Mr Robinson, who appears for the executors, who are respondents in both proceedings, says, there’s not a similar uncertainty affecting the value of two town blocks in Gatton.
The estate may or may not be worth in excess of $1 million. It still may be accounted modest when the likely inroads made by the covering of costs of two applicants, whose interests do not coincide, and of the executors and other respondents, being beneficiaries under the will who stand to lose, are considered. The jeopardy which future costs of contested proceeding would place the estate in is clear.
The parties are to be commended for their efforts in participating in a mediation before Mr Whitney, whose experience and skills appear to have been telling on the occasion in achieving a compromise of the proceedings.
The fourth respondent in 4829 of 2011 is a minor, whose interests are taken care of by a litigation guardian. Given the uncertainty as to the value of the estate, it is appropriate that the distribution agreed on in the compromise be in terms of percentages of the residual estate. That happens to be particularly appropriate because it's the method adopted by the testator himself.
By the terms of the compromise the distribution of the residuary estate would be to John Edward Kachel 14.6 per cent, to David Bruce Kachel, the other applicant, 27.7 per cent, to Kathleen Elizabeth McNeish, their sister, 20 per cent, to granddaughter Ebony Kachel 20 per cent, grandson Tori Qualischefski 3.85 per cent, grandson Jamie Qualischefski 3.8 per cent, to grandson Daniel Qualischefski 10 per cent.
The distributions according to the will were five per cent to John Edward Kachel, 22.5 per cent to David Bruce Kachel, 22.5 per cent to Kathleen Elizabeth McNeish, 20 per cent to Ebony Kachel and 10 per cent to each of the three grandsons.
It can be seen that it is the forgoing of interests under the will by the testator's daughter and by two of the grandchildren that increased provision is made for the two applicants. The shares of the other grandchildren are unaffected by the compromise, so this is not an occasion on which the court is asked for its sanction on the basis that the interests of a person under a disability are involved pursuant to rule 98. There was any question of Ebony Kachel or Daniel Qualischefski gaining greater provision than the will makes. Neither of them was an applicant.
The significance of the sanction lies in the discretion which the court has, provided there is jurisdiction in an application of the present kind under section 41 of the Succession Act 1981. That depends on the court being persuaded to the opinion that under the will of the testator adequate provision is not made from the estate for the applicant.
Jones J's decision in Watts v The Public Trustee of Queensland [2010] QSC 410 refers to two New South Wales decisions which, at least in one case, appear to indicate that parties are not able to confer jurisdiction on the court simply by making some rearrangement of the terms of the will that seems to them suitable, assuming them all to be of age and absolutely entitled.
Windeyer J in Hore v Perpetual Trustee Company Pty Ltd (unreported NSWSC 8 June 1995) said that such circumstances have nothing whatever to do with the jurisdiction under the relevant Act. "There is no doubt now that for the Court to assume jurisdiction the provisions must be satisfied. The Court cannot by consent assume a wider jurisdiction. Parties cannot by consent confer power upon the Court to make orders which the Court lacks power to make."
On the other hand, in Hadley v McNamara - estate of Mary Anne McNamara (unreported NSWSC 7 December 2005) Young J referred to circumstances in which parties agree to settle proceedings, opining that where there was no other interest involved "ordinarily the Court should merely make the orders in accordance with the terms of settlement. There will, of course, be the odd exception, although it clearly appears upon the face of it that there is no jurisdiction in the sense that the plaintiff has no need of provision."
The last word, according to the extract from Watts set out in Ms Briese's helpful outline of submissions which Mr Whitehill obtained leave to read and file, is a reference to Schaechtele v. Schaechtele‑‑‑‑‑
MR LOVE: I have that reference now, your Honour. It's a 2008 Western Australian Supreme Court single Judge decision, page 148, 25th of July 2008.
HIS HONOUR: All right. I'd like the reporters to take that reference in.
There at paragraph 18 LeMiere J said at paragraph 18, "This Court cannot make an order giving effect to the proposed settlement unless the Court thinks that such provision should be made out of the estate of the deceased for the proper maintenance or support of the plaintiff; that does not mean that the Court is, in effect, to hear the matter as if it were a contested application and then to give, or withhold orders to give effect to the settlement by comparing the settlement with the judgment which the Court would have given. The Court must give proper consideration to the evidence before it. The Court should be aware of the risks of litigation in an area in which reasonable people can reasonably reach different conclusions and give proper weight to the fact that the parties wish to effect the settlement. If the Court is satisfied that the settlement falls within the bounds of a reasonable exercise of discretion then the Court should make orders to give effect to that settlement."
That passage creates a useful test. The circumstances here are ones in which the applicants have combinations of health and financial problems, which make it easy for the court to be satisfied that the jurisdictional requirements established by sections 40 to 44 of the Act are satisfied.
It's not appropriate or necessary here to rehearse the differences that the members of the family have experienced over the years following the break-up of the testator's marriage which, perhaps not on its own but in combination with other circumstances, caused many problems it seems - and estrangements. There's been nothing shown or alleged, in my opinion, which would amount to what used to be called disentitling conduct in the circumstances.
The parties' agreement extends to quantifying the costs of the parties, excluding those of the executors, who are respondents. The executors’ costs are still to be assessed and, of course, paid from the estate.
Order as per initialled draft.