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Roberts v Bourke[2017] QDC 91

DISTRICT COURT OF QUEENSLAND

CITATION:

Roberts v Bourke & Anor [2017] QDC 91

PARTIES:

STEPHANIE JANE ROBERTS
(applicant)

v

AARON VINCENT BOURKE and GENE LITHGOW ELLIOTT
(respondents)

FILE NO/S:

2572/16

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Ex tempore reasons given 13 April 2017

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2017

JUDGE:

Kefford DCJ

ORDER:

  1. Pursuant to s 41(8) of the Succession Act 1981 the time for commencing the application is extended to 4 July 2016.
  1. Further and better provision be made for the proper maintenance and support of the Applicant, Stephanie Jane Roberts by reading and construing the will of Rosslyn Leila Elliott, as if clause 3.1 to 3.5 were deleted and the following clauses were inserted:
  1. “3.1
    I GIVE my 50 per cent share of the property at 24 Wardoo Street, Ashmore, Queensland, to my friend Stephanie Jane Roberts absolutely.
  1. 3.2
    I GIVE the sum of $150,000 to my friend Stephanie Jane Roberts.”
  1. The Applicant pay her own costs of the proceedings.
  1. The Respondents’ costs of the proceedings be paid from the estate on the indemnity basis.

CATCHWORDS:

SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – where the applicant was the de facto partner of the deceased – whether a life interest in the deceased’s 50 per cent share in the property was proper maintenance and support for the applicant

Succession Act 1981 (Qld), s 41

Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286, followed

Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309, applied

Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40, followed

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11, followed

White v Barron (1980) 144 CLR 431; [1980] HCA 14, followed

COUNSEL:

G R Dickson for the applicant

No appearance for the respondents

SOLICITORS:

Purcell & Associates for the applicant

No appearance for the respondents

  1. [1]
    HER HONOUR: This is an application for final orders to give effect to the compromise of the family provision application made under part 4 of the Succession Act 1981 (Qld) in the estate of Rosslyn Leila Elliott. Stephanie Jane Roberts is the applicant. She was the de facto partner of the deceased from 1985 until her death on 5 March 2015. Aaron Vincent Bourke and Gene Lithgow Elliott and the applicant are the executors of the deceased’s will. The last will was dated 26 December 2014. Probate was granted on 24 November 2015.
  1. [2]
    By way of background, the deceased and the applicant met in 1982, when they both were working in Canberra, and they became close friends. In early 1983, the applicant moved back to Perth, where she had resided prior to moving to Canberra, and the deceased returned to live on the Gold Coast. On 4 January 1985, the applicant moved to Queensland. Soon after arriving they rented a duplex at Bundall, and, shortly after, the deceased moved into the duplex to live with the applicant. In July 1990, the deceased and the applicant purchased the property at 24 Wardoo Street, Ashmore, as tenants in common, and they lived there as a couple on a genuine domestic basis until the deceased’s death. The deceased never married and did not have any children.
  1. [3]
    Pursuant to the terms of the deceased’s will, the deceased’s 50 per cent share of the Wardoo Street property was to be held on trust to allow the applicant to continue residing in the property and for it not to be sold before the applicant’s death, provided she complied with her obligations in clause 3.3 of the will or gave a notice that she no longer wished to hold her interest in the property. Clause 3.6 of the will gave the residue of the estate to the deceased’s nephew, Gene Lithgow Elliott, who is the second respondent. The deceased’s estate, assets and liabilities at the date of her death were, in terms of the assets, a half-share of 24 Wardoo Street, Ashmore, valued at $250,000; $49,849.95 in a Suncorp Bank account; $13,284.15 being the value of Suncorp shares; and refunds and dividends of $1,640.82. Her liabilities were a Westpac MasterCard, with a liability of $900.08; an account for preparation of the will, of $3,021.45; and reimbursement of car insurance, $519.56. The net estate is valued at $310,303.83.
  1. [4]
    In addition, the deceased had a superannuation account with Sunsuper, which had a balance of $515,794.95 at the date of her death. On 30 August 2016, the trustees of Sunsuper decided to pay the whole of the deceased’s superannuation account to the applicant, as the deceased’s dependent. The second respondent disputed the decision of the trustees of Sunsuper and sought a review of that decision. On 4 July 2016, the applicant filed the originating application, pursuant to s 41 of the Succession Act 1981 (Qld), seeking adequate provision to be made for her proper maintenance and support from the deceased estate.
  1. [5]
    Section 41 of the Succession Act 1981 (Qld) relevantly provides that if a person dies, and, in terms of the will, adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application, order that such provision as the court thinks fit shall be made out of the estate of the deceased person. As the applicant is not seeking to be awarded provision from the estate with a value that exceeds $750,000, this court has jurisdiction to make an order, pursuant to s 68(1)(b)(x) of the District Court Act 1976 (Qld).
  1. [6]
    The determination of family provision claims involve a two-stage process, as outlined in Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] HCA 40. It was said, at 208, that:

“The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased’s estate for the applicant.”

  1. [7]
    That two-stage process was confirmed in Vigolo v Bostin (2005) 221 CLR 191, at 197 [5]; [2005] HCA 11.
  1. [8]
    The issue of quantum is judged according to prevailing community standards of what is right and appropriate at the time of the trial: White v Barron (1980) 144 CLR 431 at 440; [1980] HCA 14.
  1. [9]
    In Affoo & Anor v Public Trustee of Queensland [2012] 1 Qd R 408; [2011] QSC 309, Dalton J outlined the requirements for final orders in a family provision application as follows:

“[24] The final disposition of a family provision application calls for the exercise of the Court’s discretion, it cannot be achieved by agreement or deed. The rule has its origins in the policy that a person cannot by contract exclude the jurisdiction of the Court to make a family provision order. When parties to a family provision application make an agreement as to the final orders they believe ought to be made in the proceeding, a court will have regard to that agreement as a factor, usually a significant factor, in deciding what order to make in the exercise of its discretion. Accordingly, whatever the terms of the agreement reached at mediation in this case, it could not dispose of the family provision application made by Mr Blair; an order of this Court was required to do that.”

  1. [10]
    That statement was approved by the Court of Appeal in Abrahams (by his litigation guardian The Public Trustee of Queensland) v Abrahams [2015] QCA 286 at [30]. In Abrahams at [35], the Court said:

“The appropriate approach for a court to take in relation to an application to sanction a compromise of the proceedings was set out in Watts v The Public Trustee:

‘[13] In the second case Hadley v McNamara re the estate of Mary Anne McNamara (unrecorded, NSWSC, 7 December 2005) Young J pointed to the change wrought by the decision of the High Court, he said:-

‘In former times the court used to look at these applications as if they were discretionary matters and seek to work out whether the court had jurisdiction. It is now clear that that is the wrong approach under the Family Provision Act and that if the parties agree to settle proceedings under the Family Provision Act, and there is 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 where it clearly appears on the face of it that there is no jurisdiction in the sense the plaintiff has no need of provision.

[14] The point was further considered by the Supreme Court in Western Australia, in Schaechtele v Schaechtele [2008] WASC 148 where Le Miere J considered at [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. But 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.’

I respectfully agree with this approach to the question.’”

  1. [11]
    The applicant’s circumstances are that she was born on 18 February 1955. She is now 62 years of age. She is employed as an assistant registrar by the Anglican Diocese at Brisbane. During her relationship with the deceased, they opened a joint account with Westpac Bank that they used to pay their property and living expenses. When they purchased the Wardoo Street property, the applicant used her savings for her share of the property, and the deceased borrowed funds from Westpac. Later, when the deceased borrowed money to purchase a motor vehicle, the applicant guaranteed that loan. The applicant and the deceased contributed to the purchase of whitegoods, furniture and furnishings for their home. Her income is $62,045 per annum. Her annual expenses are $35,670. In 2013, the deceased was diagnosed with endometrial cancer and from 2014, as her condition deteriorated, the applicant was the deceased’s principal and only carer, and she provided considerable assistance from then until her death.
  1. [12]
    During their relationship, the applicant and the deceased shared domestic chores, including cooking, cleaning and gardening. During their relationship as a couple, they shared a wide circle of friends, attended community functions, attended church and were accepted as having committed their lives to each other, which is confirmed by affidavits filed in support of the application. The applicant’s assets total $745,021.80. They are made up of the half-share of 24 Wardoo Street, Ashmore, as well as cash in bank accounts totalling $34,000; shares valued at $16,159.80; a 2013 Ford Focus, valued at $25,000; and a Sunsuper superannuation account valued at $419,862. Since the deceased’s death, the applicant has struggled to meet the additional costs of living and property expenses and maintenance, which were previously shared with the deceased, and her savings have been depleted by legal costs incurred in the superannuation dispute and in this application.
  1. [13]
    I am satisfied that there is a basis for making the application. The provision of a life interest in the deceased’s 50 per cent interest in the Wardoo Street property was not proper maintenance and support for the applicant, who was her de facto partner for over 30 years. Although there is a discretion to be exercised by the court, once, as is the case here, the qualifying requirements for making an application under s 41 are satisfied and there is material indicating an apparent basis for the application and the order sought, then the compromise of the parties is a significant factor.
  1. [14]
    The terms of the compromise of the application reached by the parties is that the will dated 26 December 2015 is to be read and construed as though clauses 3.1 to 3.5 were deleted, and the following clauses were inserted:

“3.1 I give my 50 per cent share of the property at 24 Wardoo Street, Ashmore, Queensland, to my friend Stephanie Jane Roberts absolutely.

3.2 I give the sum of $150,000 to my friend Stephanie Jane Roberts.”

  1. [15]
    The second respondent, in his personal capacity, and the respondents as the executors of the estate of the deceased, will withdraw the objection made to the decision of the Sunsuper trustees to pay the deceased’s superannuation benefit to the applicant by way of deposit to the applicant’s solicitors’ trust account. The terms of compromise also included that the applicant’s solicitors will retain $150,000 from the superannuation benefits to be paid to the applicant, in satisfaction of the bequest referred to in clause 3.2 of the will as amended, and will pay the balance of the superannuation benefits into the deceased’s estate within seven days of receiving the payment of the superannuation from Sunsuper. The applicant will pay her own costs of the application and of the superannuation dispute and the respondents’ costs shall be paid from the estate on an indemnity basis.
  1. [16]
    The effect of the compromise is that the applicant receives the deceased’s half-interest in the Wardoo Street property, valued at $250,000, and a legacy of $150,000, being a total of $400,000. The applicant will receive net provision of $360,000 after payment of her legal costs of $40,000. I am satisfied that the proposed orders to give effect to the compromise are, in all the circumstances, appropriate provision for the proper maintenance and support of the applicant from the deceased’s estate. I will make the order in terms of the draft order as amended.
Close

Editorial Notes

  • Published Case Name:

    Roberts v Bourke & Anor

  • Shortened Case Name:

    Roberts v Bourke

  • MNC:

    [2017] QDC 91

  • Court:

    QDC

  • Judge(s):

    Kefford DCJ

  • Date:

    13 Apr 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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