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- Unreported Judgment
Orr v The Public Trustee of Queensland QDC 248
DISTRICT COURT OF QUEENSLAND
Orr v The Public Trustee of Queensland  QDC 248
KATIE LOUISE ORR
District Court Maroochydore
6 December 2019
Decided without oral hearing
Cash QC DCJ
Order as per draft.
SUCCESSION – FAMILY PROVISION – REQUIREMENT FOR ADEQUATE AND PROPER MAINTENANCE – WHETHER APPLICANT WAS LEFT WITH INSUFFICIENT PROVISION – claim by testator’s children – compromise or agreement by the parties.
District Court Act 1967 (Qld), s 68(1)(x)
Succession Act 1981(Qld), s 41
Uniform Civil Procedure Rules 1999 (Qld), rr 371, 430, 489, 490, 498
Bartlett v Coomber  NSWCA 100
Singer v Berghouse (1994) 181 CLR 201
Vigolo v Bostin (2005) 221 CLR 191
Watts v The Public Trustee of Queensland  QSC 410, 
Cartwrights Lawyers for the applicant
Official Solicitor for the Public Trustee for the respondent
- John Andrew Orr, the deceased, passed away on 30 May 2018. He was 71 years old. The deceased had married in 1972. There were two children of the marriage, Daniel and the applicant, Katie. The marriage ended in 1982. The applicant was six years old and her brother Daniel was eight. She saw the deceased only once after that when the applicant was ten years old. In 1985 the applicant married for a second time. The deceased’s second wife had two daughters, Deborah and Susan. His second wife passed away in 2014 and her daughter Susan passed away in 2015. When the deceased died he left an estate valued at about $430,000. By far the most significant asset was an unencumbered house at Sandstone Point valued at $385,000. By his last will the deceased appointed the Public Trustee as executor. He left the entire estate to his step-daughter, Deborah.
- In February 2019 the applicant made a claim for provision out of the estate. In May 2019 the applicant’s brother Daniel gave notice that he too claimed provision out of the estate. In late October the interested parties compromised the claims. Subsequently the respondent applied for final orders and proposed the application be dealt with without an oral hearing. None of the exceptions in r 489 of the Uniform Civil Procedure Rules 1999 apply. I must therefore determine the matter without an oral hearing and, as I propose to make an order, give written reasons for my decision.
- The affidavit material reveals that the applicant, her brother Daniel, and the deceased’s step-daughter Deborah, did not know each other. There was little contact between the deceased, the applicant and Daniel after his separation from their mother in 1982. The applicant deposes that she would have been happy to have contact with her father but he made no effort and showed no interest. Daniel deposes to more contact with the deceased but says these visits were unfulfilling.
- The applicant is 42. She is married with two teenage children. Her total household income is less than $90,000 per year. The family rent accommodation and have no significant assets. Daniel is 44 years old. He is single and has no children. He receives a disability support pension. He suffers from Asperger’s syndrome, type 2 diabetes, severe obstructive sleep apnoea, hypertension and obesity. He has no savings or assets and is without stable accommodation.
- Deborah is 56 years old. She is single and has no children. She enjoyed a largely good relationship with the deceased, who married her mother in 1985 when the applicant was 22 years old. When Deborah’s mother passed in late 2014 she would speak to and visit the deceased regularly. He would sometimes visit Deborah in Townsville. With dedication and frugality, Deborah has acquired a substantial number of investment properties, though she also has substantial mortgage liabilities. All up, her net position is that she could realise something between $500,000 and $700,000 if she were to dispose of her assets.
The proceedings and proposal for a decision without oral hearing
- The respondent to the application is the executor appointed under the will. The interested parties, including Daniel and Deborah, reached agreement in October. The effect of the agreement is that the applicant and Daniel will receive $50,000 each and the balance of the estate will go to Deborah. The applicant’s costs are to be fixed in the amount of $20,000 and paid out of the estate. The respondent’s costs are to be paid out of the estate on the indemnity basis. There is no provision for Daniel’s costs. On 27 November 2019 the respondent filed a notice seeking orders to give effect to the compromise of the parties and also proposing the matter be dealt with without an oral hearing. Rule 490(1)(b) mandates that the notice proposing a decision without oral hearing must be accompanied by a draft order and concise written submissions. It was not. Also, r 490(2) requires the registrar to set a date for deciding the application that is at least ten days after the application is expected to be served. There are fewer than ten days between the date of filing of the application, 27 November 2019, and the date allocated for the decision, 6 December 2019.
- On 2 December 2019 a solicitor employed by the respondent swore an affidavit. In it the solicitor deposed that on 27 November 2019 the application and a draft order were sent to the applicant, Daniel and Deborah. The same day Deborah indicated her agreement with the terms of the draft order. On 2 December 2019 the applicant and Daniel, through their solicitor, advised they agreed as well. In the circumstances I will, pursuant to r 371, declare the step of filing the notice on 27 November 2019 to have been effectual notwithstanding there was not compliance with r 490. It is appropriate to do so given the agreement of the parties as to the final orders sought and, more importantly, to avoid unnecessarily inflating the costs of the proceedings.
- The matter is not inappropriate for disposition on the papers. The proposal for a decision without oral hearing should be accepted. Again, an important consideration is that this will avoid the expenditure of additional legal costs from what is a relatively modest estate.
- The present application falls within the jurisdiction of the District Court as it concerns a claim for less than $750,000.In determining an application for family provision pursuant to s 41 of the Act, the cases provide that a two stage process is employed. First, the court must determine a jurisdictional question of whether the applicant has been left without adequate provision for his or her proper maintenance and support. Secondly, if so, the court will then determine what provision ought to be made in the circumstances.In so doing the Court is asked to exercise its discretion. The agreement of the parties is a matter of significance and should be afforded considerable weight, but it is not determinative.
- The question of whether the applicant and Daniel have been left without adequate provision is to be answered having regard to the their financial position, the size and nature of the estate, the totality of the relationship between the applicant and the deceased and the relationship between the deceased and other persons who have legitimate claims upon the estate.If they have a legitimate claim on the estate, the second question is what amount they should properly receive. This requires consideration of what provision a “wise and just testator” would have made.
- Neither the applicant or Daniel enjoyed any substantial relationship with the deceased, He did not maintain or support either of them before his death. But it is clear that both the applicant and Daniel are in need of maintenance and support. The only other person with an interest in the estate has agreed to compromise the claims. This is a significant factor that ought to be afforded considerable weight, especially where estate is not large and litigation would likely consume a substantial portion of it. In the present matter the evidence establishes that there is a proper basis for the compromise agreed by the parties.
- For these reasons I will make an order in the terms of the draft.
 The respondent did not comply with r 490 but as noted later in the reasons I propose to excuse this noncompliance.
 R 498.
 R 496.
 Despite the recitation in paragraph 1 that the solicitor made the affidavit “from information in the Public Trustee’s files” that the solicitor “believes to be true”, the solicitor deposes only to matters about which they could give evidence orally. No issue of hearsay in an affidavit in a proceeding for final relief actually arises (cf. r 430).
 District Court Act 1967, s 68(1)(x).
 J K de Groot and B W Nickel (2007) Family Provision in Australia, Third Edition, Butterworths, Australia at [2.3]; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Bostin (2005) 221 CLR 191.
 Bartlett v Coomber  NSWCA 100 at -, , -.
 Singer v Berghouse (1994) 181 CLR 201 at 209-210.
 Watts v The Public Trustee of Queensland  QSC 410, .
- Published Case Name:
Katie Louise Orr v The Public Trustee of Queensland
- Shortened Case Name:
Orr v The Public Trustee of Queensland
 QDC 248
06 Dec 2019