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Fenton-Anderson v Power (No 3)[2020] QDC 317

Fenton-Anderson v Power (No 3)[2020] QDC 317

DISTRICT COURT OF QUEENSLAND

CITATION:

Fenton-Anderson & Anor v Power & Anor (No 3) [2020] QDC 317

PARTIES:

Peta Divina Alexandra Fenton-Anderson & Toni Leigh Dolores Fenton-Leslie

(Applicants)

V

DAVID CLIFFORD POWER & NICOLAS FLETCHER SMITH (as executors of the Will of David Joseph Fenton deceased)

(Respondents)

AND

SUZANNE MICHELLE FENTON

(Respondent by election)

FILE NO:

DC 42/18 No 1186 of 2018

DIVISION:

Civil

PROCEEDING:

Trial   

ORIGINATING COURT:

District Court at Toowoomba 

DELIVERED ON:

10 December 2020

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2020

JUDGE:

Porter QC DCJ

ORDERS:

  1. Adequate provision be made for the proper maintenance and support of the Applicants, Peta Davina Alexandra Fenton-Anderson and Toni Leigh Delores Fenton-Leslie, out of the estate of David Joseph Fenton deceased (the “deceased”) by reading and construing the last will of the deceased dated 22 April 2020 (the Will) as if it omitted clause 5 and included instead the following clause:

5.  I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at Lot 3, 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubigny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold (“Cambooya Property”) to my Trustee UPON the following Trusts namely:-

  1. (a)
     I Direct that my Trustees shall sell the Cambooya Property and shall thereafter distribute the net proceeds of sale as follows:-
  1. (i)
     as to $175,000.00 thereof to Toni Leigh Delores Fenton-Leslie;
  1. (ii)
     as to as to $125,000.00 thereof to Peta Davina Alexandra Fenton-Anderson;
  1. (iii)
     as to as to $50,000.00 thereof upon trust for such of them my grandchildren namely:

Jay Stanley Fenton-Anderson

Jordon Hope Fenton-Anderson

Paige Grace Fenton-Anderson

Kai Joseph Fenton-Leslie; and

Tyla Susan Fenton-Leslie

with each of their respective equal share thereof to be paid upon my said grandchild or grandchildren attaining the age of eighteen (18) years.

  1. (b)
     As to the balance remaining thereafter, to be held as part of the rest and residue of estate.
  1. The respondent executors’ costs of the proceedings be paid out of the estate on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where judgment was delivered in a family provision application – where the effect of the judgment was to order further provision for the applicants, inclusive of costs – where the consequence of the judgment was to order the sale of property which the respondent by election resides in – whether the Court has power to order possession as an incident of the power to order provision  – whether any such power should be exercised  the Court – whether the Court has power to order payment of a debt due by the residuary beneficiary to the applicants as an incident of the power to order provision

LEGISLATION

District Court Act 1967 (Qld) ss. 68(1)(b)(xi); 68(1)(b)(vii); 68(1)(b)(x); 68(1)(b)(xiii); 68(3)(b)

Succession Act 1981 (Qld) ss. 6(1); 41(1); 41(2)(a); 41(8)

Trusts Act 1973 (Qld) s. 8(1)

Uniform Civil Procedure Rules 1999 (Qld) r. 702(1); Chapter 20 Part 4

CASES

Fenton-Anderson & Anor v Power & Anor (No 2) [2020] QDC 294

Grassby v R (1989) 87 ALR 618

Re Wood Deceased; Ebert v Union Trustee Company of Australia Limited [1961] Qd R 375

Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435

COUNSEL:

SOLICITORS:

K Kelso for the applicants

A Collins for the respondent executors

Respondent by election self-represented

Wonderley & Hall for the applicants

Bernays Lawyers for the respondent executors

Respondent by election self-represented

  1. [1]
    On 20 November 2020, I delivered reasons in this matter: Fenton-Anderson & Anor v Power & Anor (No 2) [2020] QDC 294.  The effect of the judgment was to order further provision for the applicants, inclusive of costs, totalling $300,000 from the estate generated by sale of the Cambooya[1] property and to make consequential adjustments to the interests of other beneficiaries under the Will.  The only order made on that date was to provide for the parties to be heard as to the form of orders to give effect to those reasons, including costs. I directed the applicants and respondent/executors to seek to agree orders and, if agreed, to provide proposed orders to the Court and to Mrs Fenton by 25 November 2020.  I directed Mrs Fenton provide any submissions in response a week later.
  2. [2]
    The applicant and executors provided agreed orders on 26 November 2020 and accordingly I extended Mrs Fenton’s time to respond by a day to 3 December 2020.  She provided submissions in response in accordance with that direction.
  3. [3]
    The orders the applicants and executors proposed (the proposed orders) were as follows:

THE ORDER OF THE COURT IS THAT:

  1. Adequate provision be made for the proper maintenance and support of the Applicants, Peta Davina Alexandra Fenton-Anderson and Toni Leigh Delores Fenton-Leslie, out of the estate of David Joseph Fenton deceased (the “deceased”) by substituting clauses 4-7 of the last will of the deceased dated 22 April 2020 with the following:
    1. (a)
      I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at Lot 3, 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubigny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold (“Cambooya Property”) to my Trustee UPON the following Trusts namely:-
      1. (i)
         I Direct that my Trustees shall sell the Cambooya Property and shall thereafter distribute the net proceeds of sale as follows:-
      1. (A)
        as to $175,000.00 thereof to Toni Leigh Delores Fenton-Leslie;
      1. (B)
        as to $125,000.00 thereof to Peta Davina Alexandra Fenton-Anderson;
      1. (C)
        as to $50,000.00 thereof upon trust for such of them my grandchildren namely:

Jay Stanley Fenton-Anderson

Jordon Hope Fenton-Anderson

Paige Grace Fenton-Anderson

Kai Joseph Fenton-Leslie; and

Tyla Susan Fenton-Leslie

with each of their respective equal share thereof to be paid upon my said grandchild or grandchildren attaining the age of eighteen (18) years.

  1. (D)
    As to the balance remaining thereafter to the said SUZANNE MICHELLE FENTON.
  1. To give effect to the above orders, it is further ordered:-
    1. (a)
      The Respondent by Election is to vacate the Cambooya Property within ninety (90) days (the “Possession Date”) of the date of this Order;
    2. (b)
      Any items or property remaining at the Cambooya Property after the Possession Date shall be deemed abandoned and title shall pass to the Executors who may deal with such property without further reference or liability to the Respondent by Election;
    3. (c)
      If the Respondent by Election has not delivered up vacant possession of the Cambooya Property by the Possession Date, the Respondent Executors are thereafter empowered on production of this Order to any Court Bailiff (acting in company of a police officer) to enter on to the Cambooya Property and obtain vacant possession with such force as is necessary in the circumstances;
    4. (d)
      On possession of the Cambooya Property being delivered up or obtained (whichever is the earlier), the Respondent Executors are directed to sell the Cambooya Property and shall forthwith attend to the necessary steps to sell the Cambooya Property.
  2. The Respondent Executors are further ordered to make the following payments from the net sale proceeds of the Cambooya Property referred to in 1. above:-
    1. (a)
      to the Applicants a total sum of $9,704.37 by way of reimbursement of funeral expenses;
    2. (b)
      to the Applicants in the total sum of $13,601.17 by way of a Judgement dated 1 June 2020 on account of costs of the Applicants’ Disclosure Application;
    3. (c)
      any expenses or liabilities of the Estate;
    4. (d)
      the Respondent Executors’ costs (either agreed or assessed).
  1. [4]
    No submissions were provided in support of the proposed orders. They raise several problematic issues. 
  2. [5]
    One of those issues related to the very last line of the proposed orders, which failed to specify whether the executors were seeking costs on an indemnity basis.  When my associate queried this, the executors, with the agreement of the applicants, sought by email dated 9 December 2020, an order on that basis, adding new proposed order 2 in these terms:

The Executors’ costs of an [sic] incidental to these proceedings be assessed on an indemnity basis and paid out of the estate.

  1. [6]
    Mrs Fenton’s submissions did not directly address whether the proposed orders properly gave effect to the reasons and were otherwise within power and proper to make.  Her submissions in response to the proposed orders along with the various attachments have been made an exhibit in the trial.  Her submissions are primarily concerned with challenging the reasoning and conclusions in the judgment. They do not assist me in determining whether the proposed orders should properly be made.  She did not respond to the additional order sought by the executors set out in the previous paragraph.
  2. [7]
    I do not agree that the proposed orders should be made.   The orders I make are as follows:
  1. Adequate provision be made for the proper maintenance and support of the Applicants, Peta Davina Alexandra Fenton-Anderson and Toni Leigh Delores Fenton-Leslie, out of the estate of David Joseph Fenton deceased (the “deceased”) by reading and construing the last will of the deceased dated 22 April 2020 (the Will) as if it omitted clause 5 and included instead the following clause:
  1. I GIVE DEVISE AND BEQUEATH all of my right title and interest in and to the land and buildings and improvements situated at Lot 3, 13295 New England Highway, Cambooya in the State of Queensland described as Lot 3 on SP 203038 in the County of Aubigny and Parish of Cambooya contained in title reference 50726363 together with any water rights or licences I hold (“Cambooya Property”) to my Trustee UPON the following Trusts namely:-
  1. (a)
    I Direct that my Trustees shall sell the Cambooya Property and shall thereafter distribute the net proceeds of sale as follows:-
  1. (i)
    as to $175,000.00 thereof to Toni Leigh Delores Fenton-Leslie;
  1. (ii)
    as to $125,000.00 thereof to Peta Davina Alexandra Fenton-Anderson;
  1. (iii)
    as to $50,000.00 thereof upon trust for such of them my grandchildren namely:

Jay Stanley Fenton-Anderson

Jordon Hope Fenton-Anderson

Paige Grace Fenton-Anderson

Kai Joseph Fenton-Leslie; and

Tyla Susan Fenton-Leslie

with each of their respective equal share thereof to be paid upon my said grandchild or grandchildren attaining the age of eighteen (18) years.

  1. (b)
     As to the balance remaining thereafter, to be held as part of the rest and residue of estate. 
  1. The respondent executors’ costs of the proceedings be paid out of the estate on the indemnity basis.
  1. [8]
    I should explain briefly why the proposed orders have been rejected.[2]

Issues with proposed order 1

  1. [9]
    My order 1 differs from proposed order 1 in the following respects:
    1. (a)
      First, it rephrases the chapeau provision into the form of words usually used in Queensland Family Provision cases.  Strictly speaking, the Will is not being changed (i.e.  clauses substituted for other clauses), but rather provision is ordered from the estate. Thus, the words “read and construed …as if” are in my view more correct and more strictly consistent with s. 41(10) of the Succession Act;
    2. (b)
      Second, I can see no reason why clauses 4, 6 and 7 required adjustment by order to give effect to the reasons for judgment.  Only clause 5 is affected by the orders; and
    3. (c)
      Third, the existing clause 6 of the Will is quite important.  The effect of paragraph (a)(1)(d) of the proposed orders on one view is to make the balance proceeds a specific gift to Mrs Fenton, with all sorts of unintended potential consequences where the residue is insufficient to meet the proper costs of the administration (as it will be here).   Proposed order 3 does not solve that difficulty.  Rather, it adds to the confusion because of the difficulty in reading it consistently with the proposed order 1.  By drafting the order as I have done in Order 1, paragraph 5(b), the intention of the reasons can be given effect to because the balance of the proceeds goes into residuary and therefore, subject to the costs of administration, to Mrs Fenton’s benefit, consistent with the scheme of the Will.

Issues with proposed order 2

  1. [10]
    Proposed order 2 compels Mrs Fenton to give possession of the Cambooya property and makes provisions for summary enforcement.  No submission was made as to how the power to make such orders falls within the scope of the power being exercised under the s. 41(1) Succession Act 1981 to order such provision as the courts thinks fit for the applicants. 
  2. [11]
    It is reasonable to suspect that Mrs Fenton will resist giving possession of Cambooya within an acceptable time frame.  Her recent submissions provide further grounds for that suspicion.   And it is to be recognised that the effect of the judgment on the application is that she is not entitled to continue in possession of Cambooya.
  3. [12]
    However, while those facts suggest it would be convenient to make possession orders now, they do not establish that the scope of the power to make orders conferred by s. 41(1) extends to making orders for possession.  That is a question of construing the scope of the conferral of power.  In that regard, one must first consider the grant of power in its statutory context.  That context would include other provisions relating to the power conferred by s. 41(1) including s. 41(2)(a) Succession Act which expressly permits the Court to attach such conditions to the order as it thinks fit.  It can also be accepted that the grant of express power by statute carries with it the power to do everything necessary for its exercise.[3]
  4. [13]
    Bearing those matters in mind, there might be some difficulty with construing the power conferred by s. 41(1) as extending to ordering possession.   Strictly speaking, once the orders for sale of Cambooya are made, the general law takes over.  That includes both legal principles specifically applicable to administration of estates and principles generally applicable.  Proceedings to recover possession fall into the second category.  There is no particularly compelling reason, therefore, why the effective exercise of the power under s. 41(1) requires a power to order possession.  It might be thought that such a power is not reasonably required for the grant of power to be effective.[4]  
  5. [14]
    While the proposition that the power extends to ordering possession is certainly arguable, and I by no means rule it out, in the absence of submissions on the point, I am not satisfied that it is so.  
  6. [15]
    This Court has other sources of jurisdiction to deal with applications for possession, but only within the scope of the jurisdiction conferred by s. 68(1)(b)(xi) District Court Act.  However, that jurisdiction is limited by the value of the land and there is no direct evidence of value of Cambooya which would place it within the monetary limit of the Court.   One might infer that the land falls within the scope of s. 68(3)(b) District Court Act on some basis or another, but no such submission was made.
  7. [16]
    In either case, of course, proposed order 2 seeks orders for possession where that relief was not sought in the proceedings, but only to give effect to the reasons.  There is reason to doubt that even if there was jurisdiction to make this possession order, it would be consistent with procedural fairness for such orders to be  made where no notice was given that the parties would be seeking them except in the proposed orders put forward after the trial was completed.
  8. [17]
    Another difficulty arises in respect of proposed order 2(c).  That order has the effect of excluding the operation of the statutory scheme for obtaining an enforcement warrant for possession set out in Chapter 20 Part 4 UCPR.  I am not certain that I can or should simply ignore those provisions and no submissions were made on the point. 
  9. [18]
    As I have said, I recognise that making the orders sought in proposed order 2 might be a pragmatic way of minimising costs in relation to the seemingly inevitable dispute in relation to possession of Cambooya.  But I am not persuaded at this stage that they are orders which can be lawfully made.

Issues with proposed order 3

  1. [19]
    Each of the orders contained in proposed order 3 are problematic.
  2. [20]
    Order 3(a) is an order which in substance involves the Court authoritatively determining that this was a cost reasonably incurred in the administration of the estate.  While it is undoubtedly true that the funeral costs are such an amount, I do not see where my jurisdiction to make that determination arises.  Sadly, this Court does not have a grant of general jurisdiction in administration of estates.  That jurisdiction is conferred by s. 6(1) Succession Act on the Supreme Court of Queensland only. 
  3. [21]
    Rather, this Court’s specific succession jurisdiction is relevantly sprinkled through various heads of civil jurisdiction conferred by s. 68 District Court Act 1967, particularly s. 68(1)(b)(vii) District Court Act which confers jurisdiction over the noble, ancient but rarely used administration action where the value of the estate is less than $750,000. (The High Court described the administration action as old fashioned as long ago as 1961.[5]) This estate is plainly worth more than the monetary limit.  While it might have been contended that payment of this sum should be dealt with as part of the provision for the applicants, no such argument was advanced and it would be sophistry now to adopt that position.   Other heads of jurisdiction include s. 68(1)(b)(x) (family provision) and s. 68(1)(b)(xiii) (construction of wills). 
  4. [22]
    The suite of equitable and succession jurisdiction conferred by s. 68(1)(b) District Court Act was the result of the reforms to the Act precipitated by QLRC Report No. 36 “A Bill to alter the Civil Jurisdiction of the District Court of Queensland” 20 December 1985.  At that time, even the very learned authors of that report recognised the complexity of administration actions.  Section 6(1) Succession Act has the effect of bypassing those complexities.  One might speculate that if it existed in 1985, its extension to the District Court at least in respect of administrations would have been adopted by the QLRC.  In any event, one might reasonably consider that such a step should now be contemplated.  The same might be said of s. 8(1) Trusts Act 1973.
  5. [23]
    Proposed order 3(b) is conceptually remarkable.   As best I understand it, it seeks to garnishee of the entitlement of Mrs Fenton as residuary beneficiary to pay a debt she has to the applicants as creditors under a costs order made against Mrs Fenton in these proceedings, and to do so before the entitlement of the residuary beneficiary is determined by finalisation of the administration of the estate.  There might be authority which supports the power to make such an order, but none was cited and in the absence of some identified basis for making such an order, I will not make it.
  6. [24]
    Proposed order 3(c) is unnecessary and, for the reasons given in [20], seemingly beyond this Court’s jurisdiction.
  7. [25]
    Proposed order 3(d), as originally put forward, was remarkable not for the provision for the payment of the executors’ costs, but for the provision for the payment specifically from the sale proceeds and for the failure to specify on what basis those costs were sought: standard or indemnity basis.  The second seems to have been a rather significant omission.   In the absence of an order to the contrary, an order for costs of proceedings is to be assessed on the standard basis: Rule 702(1) UCPR.   However, as explained above, the applicants and executors subsequently clarified that the order sought was for payment of costs on an indemnity basis.  I consider that the executors ought to have their costs of the proceedings and on an indemnity basis.  The executors are entitled to indemnity for all costs reasonably incurred in carrying on the administration.  I have seen nothing in the conduct of the litigation by the executors which suggests that they have not acted reasonably in carrying on the litigation, and much evidence demonstrates that they have so acted.  As I observed in my trial reasons, the costs they specify seem rather high but it cannot be doubted that Mrs Fenton’s conduct has added considerably to the costs.  The executors should be careful however to note that this order relates only to the costs of these proceedings.  The balance of their other costs must be dealt with in ordinary way. 
  8. [26]
    Order 3(d) as originally put forward was also ambiguous.  It sought payment of the executors’ costs but did not say what costs (costs of the proceeding seem to be implied).  As noted above, that has now also been confirmed by clarification from the executors and applicants.
  9. [27]
    Despite those clarifications, the revised form of the proposed orders still also seeks an order those costs be paid out of the Cambooya proceeds specifically.  While in practice that is likely to occur, there is no reason officiously to interfere in the ordinary rules which identify how an executor’s reasonable costs of acting as such fall on a deceased estate.    
  10. [28]
    For those reasons, I decline to make the proposed orders and instead make the orders set out in paragraph [7] above.

Footnotes

[1] Defined terms in the reasons have the same meaning in this judgment.

[2] I will refer to the original proposed order set out in these reasons for convenience

[3] Grassby v R (1989) 87 ALR 618 at 628 per Dawson J

[4] Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435

[5] Re Wood Deceased; Ebert v Union Trustee Company of Australia Limited [1961] Qd R 375 at 379

Close

Editorial Notes

  • Published Case Name:

    Fenton-Anderson & Anor v Power & Anor (No 3)

  • Shortened Case Name:

    Fenton-Anderson v Power (No 3)

  • MNC:

    [2020] QDC 317

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    10 Dec 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Fenton-Anderson & Anor v Power & Anor (No 2) [2020] QDC 294
2 citations
Jump To
Cite 1 - [2020] QDC 294
Cite 2 - [2020] QDC 294
Grassby v R (1989) 87 ALR 618
2 citations
Jump To
Cite 1 - (1989) 87 ALR 618
Cite 2 - (1989) 87 ALR 618
Pelechowski v Registrar (1999) 198 CLR 435
2 citations
Jump To
Cite 1 - (1999) 198 CLR 435
Cite 2 - (1999) 198 CLR 435
Re Wood (deceased) [1961] Qd R 375
2 citations
Jump To
Cite 1 - [1961] Qd R 375
Cite 2 - [1961] Qd R 375

Cases Citing

Case NameFull CitationFrequency
Day v Peake [No 2](2023) 3 QDCR 301; [2023] QDC 2005 citations
Lorenz v McGreevy [2022] QDC 2122 citations
1

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