Charities
Boyd v Talbot [2021] QSC 99. The proceeding resolved the construction of a sui generis clause of the deceased’s will directing the establishment of a charitable foundation in relation to which his widow and children were to play a role in the making of donations. Bond J (as his Honour then was) construed the will as requiring the establishment of a single foundation but because of the family rift between the widow and her daughters and the children of the deceased’s first marriage, exercised the court’s charitable jurisdiction to direct an administrative scheme for the establishment of two foundations, one for each beneficiary group. The charitable foundations will have an initial endowment in excess of $30 million.
Royal Brisbane and Women’s Hospital Foundation v Attorney-General [2020] QSC 222. This was an application to determine whether a charitable gift of income also carried the capital.
Public Trustee of Queensland v Intellectually Handicapped Persons Association of Queensland [2014] QSC 178. This was an application to determine the construction of charitable gifts in the will of the deceased. Jeff appeared for the beneficiary on a partial intestacy.
Construction and rectification
Fox v J & K Cameron Investments Pty Ltd as trustee of the J & K Cameron Finance Trust & Ors (S 10688 of 2020) and CPC Equity Pty Ltd as trustee of the CPC Trust No 1, the CPC Trust No 2 and the CPC Trust No 3 v J & K Cameron Finance Pty Ltd (S 10689 of 2020). Jeff advised in relation to the rectification of trust deeds to correct a drafting error by a solicitor which (absent rectification) would have caused a contravention of the rule against perpetuities and resulted in an unintended multi-million dollar tax liability. In October 2020, Jeff appeared on the subsequent applications in the matter where rectification was ordered.
Public Trustee of Queensland v Smith [2009] 1 Qd R 26; [2008] QSC 339. The judgment of Atkinson J in this case is a leading modern exposition in Queensland of the general principles applicable to the construction of wills, the common law rules which permit the admission of extrinsic evidence as an aid to construction, the application of s 33C of the Succession Act which permits the reception of extrinsic evidence to assist construction, the application of s 33 of the Succession Act which permits wills to be rectified and the class-closing rules. The case is regularly cited. Jeff appeared for five of the beneficiaries.
Other cases in which Jeff has appeared include Crnjanin v Crnjanin [2012] 2 Qd R 423; [2011] QSC 295 and Ashton v Ashton [2010] QSC 326.
Estate administration / judicial advice
Jeff is currently advising the court-appointed administrator in relation to the administration of an estate comprising assets likely valued between $100 and $200 million situated in the United Kingdom, China, Hong Kong and the British Virgin Islands. The administration involves complex commercial arrangements and problems of private international law.
For more than five years, Jeff has acted for the administrators of a large estate with assets in Queensland and overseas. In the course of the matter he has advised in relation to the interpretation of the will, the proper law of the will trusts, choice of law in relation to succession to overseas assets, numerous administration issues, the beneficiaries’ interests under the will, the entitlement of the beneficiaries to inspect documents, and the administrators’ remuneration and indemnity. He has also appeared in numerous applications in closed court dealing with sensitive and confidential matters affecting the administration of the estate and, in open court, in Boyd v Talbot (see above).
Groundwater v Robinson [2020] QSC 31. Jeff appeared for the court-appointed administrator of the deceased’s estate on an application seeking judicial advice as to the steps she should take in the administration. The executor whom she replaced had misappropriated more than $1 million from his father’s estate to fund his property development business, leaving the estate insolvent and without funds to perform its obligations under a family provision order made in favour of the deceased’s de facto widow much less pursue recovery action against the former executor and others to get in the estate assets. Davis J gave the administrator the judicial advice she sought and set aside parts of the widow’s family provision order.
Daly Family Trust. Jeff advised in relation to this family discretionary trust, the principal asset of which was a valuable hotel and associated enterprise, which had been administered for decades by an invalidly appointed trustee without regard to the trust deed.
Davidson v Cameron [2016] 2 Qd R 340; [2015] QSC 294. This was an application by an executor/trustee for judicial advice to resolve questions of construction and administration. Jeff appeared for the remainder beneficiary under a testamentary trust, the asset of which was the Lord Roberts Hotel in Sydney. Jackson J considered some of the limits on the power of the court to give judicial advice, the circumstances in which an executor will assent to a gift in a will and questions of construction of the will and administration of the estate.
Klatt v Coore [2013] QSC 196. This has become a leading Queensland authority on the law and practice applicable to judicial advice applications. Jeff appeared for the independent administrator of the estate. The executor he replaced had nearly exhausted the estate in the pursuit of unfruitful and unmeritorious proceedings against his sister. Judicial advice was given to the effect that the independent administrator would be justified in not continuing with the litigation and the former executor was deprived of any further costs indemnity from the estate.
Re Constantinou [2013] 2 Qd R 219; [2012] QSC 332. Jeff advised beneficiaries in this matter who were not represented at the hearing before Dalton J in relation to the proper law of testamentary trusts established by a testator who died domiciled in Papua New Guinea. Although the beneficiaries for whom he acted were not represented, her Honour referred to letters which Jeff settled as making “quite detailed (and I might say, helpful) submission as to the points for determination” (at 222-223 [10]).
Taranto v Hansard [2008] QSC 136. Jeff appeared (with Damien Mullins SC) in this Beddoe application in which two executors sought leave to bring proceedings against the third executor seeking to set aside inter vivos transactions between her and the deceased.
Family provision
Mulder v Twidale (S 4494 of 2019). A family provision application which prompted the widow and her children to enter into an arrangement for the future conduct of their family farming enterprise. Jeff appeared for the executor at the mediation (and adjourned mediation).
Treadwell v Treadwell [2021] QDC 44. Jeff appeared for the executors on their successful application to summarily dismiss a family provision application brought by two grandchildren of the deceased who claimed they were eligible to apply on the ground that they were his dependants.
Niebour-Pott v Pott [2020] QSC 7. The applicants in this family provision application, for whom Jeff appeared, were the disabled adult children of the deceased whom he had disavowed. Provision was made for each applicant in the sum of $400,000.
Tatay v Bacon (S 13623 of 2018). Jeff gave advice (with Shane Doyle KC) in relation to the family provision application made by an alleged step-child against the estate of Win Schubert, deceased, who by her will had given most of her $40 million estate to the Queensland Art Gallery Board of Trustees. The advice concerned the proper construction of the definition of step-child in s 40A of the Succession Act (prior to its amendment in 2017) where the alleged step-child was the child of an alleged de facto spouse who predeceased the deceased. The applicant subsequently wholly discontinued her claim.
Catelan v Herceg [2012] QSC 320. This was a family provision application by the widow of the deceased (his second wife of a short marriage). The estate was valued at more than $30 million. Jeff appeared (with Peter Dunning KC) for the executor in an unsuccessful application to summarily dismiss the proceeding. The widow’s application was later settled at mediation.
Kowalski v Public Trustee of Queensland (2011) 9 ASTLR 474; [2011] QSC 323 and Kowalski v Public Trustee of Queensland (No 2) [2011] QSC 384; Kowalski v Kowalski [2012] QCA 234. In this family provision application, McMeekin J considered the standing of a bankrupt beneficiary to oppose the court making final orders to carry into effect terms of settlement agreed between the applicant widow and the respondent executor. His Honour made orders varying the terms of settlement making provision for the widow by way of a portable life interest. An appeal was dismissed. Jeff appeared for the Public Trustee of Queensland before McMeekin J and the Court of Appeal.
Equity claims
Heron & Anor v Corporate Services Management Pty Ltd (S 2149 of 2021). This matter involved a probate proceeding and an equity claim seeking to set aside inter vivos transactions affecting a family discretionary trust. A deed of settlement was entered into at mediation but the principal defendant subsequently refused to perform it and, after dismissing several sets of lawyers, appeared in person to oppose the making of orders necessary to carry the compromise into effect. Jeff appeared for the plaintiffs.
Jervis & Anor v Jervis & Ors (S 14117 of 2019). This was an equity claim by a son against his parents seeking declarations of trust in relation to the family dairy farming enterprise. Jeff appeared for the parents at the successful mediation.
Dunphy v Shelton (S 1092 of 2018). This was an equity claim which in substance sought to effect the final dissolution of a multi-generational family grazing partnership. Jeff appeared for the executor at the successful mediation.
Parker v Parker & Anor (S 6117 of 2015). This was a dispute between a daughter and her father about their rights under a testamentary trust created by the will of his father, who died in 1991. The dispute was settled at the second mediation one week before the trial was set down to commence. Jeff appeared (with James Bell KC) for the father.
Ellis & Ors v Badcock & Ors (S 2575 of 2013). In this proceeding, the plaintiff sisters sought to set aside a deed of variation of a trust deed the effect of which was to give their defendant brother complete control over the trust in his own interest. The trust fund was valued at between $40 and $60 million. The deed of variation had been made in 2001 after the death of their mother at the instigation of the solicitors who undertook her estate planning. The plaintiffs sued their brother and the solicitors alleging misrepresentation and unconscionability, and against the solicitors, deceit and breach of fiduciary duty. As the proceeding progressed, the mother’s accountants were joined as a party and the defendant brother cross-claimed against the solicitors and the accountants alleging negligence and breach of fiduciary duty. The dispute was settled at the third mediation. Jeff appeared (with Damien O’Brien KC) for the son.
Guardianship and administration
Pickersgill v Pickersgill [2019] QSC 268. This was an unhappy family dispute between children concerning the welfare of their mother, her capacity, the validity of her enduring power of attorney and the validity of certain transactions between family members. Jeff appeared for two of the children. Davis J resolved the matter by appointing independent attorneys. The judgment relates to the incidence of costs.
Neuendorf v Public Trustee of Queensland [2015] 1 Qd R 513; [2013] QSC 156. This has become a leading authority on the proper approach to the calculation of compensation under s 107 of the Powers of Attorney Act 1998 (Qld), which applies when an attorney deals with his or her principal’s property in such a way as to cause a beneficiary under the principal’s will to suffer loss.
Informal and statutory wills
Re JWW. In September 2021, Jeff appeared (leading Anna Bratti) for a father in this application seeking the authorisation of a statutory will for his son. The son was in an induced coma and at risk of imminent death, had an estate (including a highly profitable business) valued at between $20 and $30 million, a complex family situation and no will. Jackson J made orders authorising the making of a statutory will.
Re GEW [2020] QSC 119. Jeff unsuccessfully appeared for the deceased’s widow to oppose the admission of a suicide note to probate under s 18 of the Succession Act.
McKay v McKay (2011) 4 ASTLR 479; [2011] QSC 230. Jeff appeared for the applicant in this statutory will application in which Ann Lyons J discussed the principles applicable to what were then still (in Queensland) relatively untested statutory provisions and considered what duties lay on a substitute decision maker for an adult to make or provide evidence in such an application. The case has since been frequently cited.
Other cases in which Jeff has appeared include Proctor v Klauke [2011] QSC 425.
Probate
Re HRA (No 1) [2021] QSC 29 and Re HRA (No 2) [2021] QSC 49. Jeff led Alexander Choy for the respondent to this proceeding to determine to whom letters of administration should be granted. The issue was whether the respondent remained the deceased’s de facto spouse within the meaning of s 5AA of the Succession Act even though they had been separated for a period of seven years prior to his death as a result of his niece having moved him from Bundaberg to a nursing home in Gympie when he was suffering from severe dementia. The respondent had little opportunity to remain in contact with him and none in the last two years of his life. The case raised a novel point of relevance in an ageing society where second, de facto, relationships are increasingly common. Although Lyons SJA decided the case against the respondent, the submissions advanced on her behalf were extensively referenced by her Honour in her reasons.
Rowe v Sudholz [2019] QSC 306. This was a solemn form probate proceeding involving the $7 million estate of an old “bushie” from Goondiwindi, Norman Hottes, a bachelor. Jeff appeared for his next-door neighbours, who had assisted him in his old age and were the executors and residuary beneficiaries of his wills. They successfully challenged the validity of his last will on the ground that he lacked testamentary capacity, while his penultimate will was upheld. In a separate equity claim (S 8934 of 2019), Jeff acted for the executors to defend a claim brought by the deceased’s nephew claiming that they held the estate wholly on constructive trust for him. The nephew’s claim was settled at mediation. Jeff then advised the executors/residuary beneficiaries in relation to their prospects of successfully claiming damages for negligence from the solicitor who prepared the deceased’s wills which were the subject of the probate proceeding.
Lawton v Lawton & Anor; Lawton v Lawton; Lawton v Lawton & Ors (S 9329 of 2018; S 410 of 2018; S 10529 of 2018). A solemn form probate proceeding, family provision application and superannuation dispute were settled at mediation before the Honourable Duncan McMeekin KC but one party to the terms of settlement opposed the court making orders necessary to carry the compromise into effect. Jeff appeared for the executor and superannuation trustee.
Re Rice; McKeown v Harris [2018] QSC 87. Jeff appeared on this routine application seeking orders to carry the compromise of a solemn form probate proceeding into effect. Crow J gave reasons which contain a modern synthesis of the authorities and legal principles on which the court acts, which is now a leading Queensland authority on the point.
Frizzo v Frizzo [2011] QSC 107 and Frizzo v Frizzo (No 2) [2011] QSC 177; Frizzo v Frizzo [2011] QCA 308. The issue was whether a copy of a will handwritten by the deceased’s anaesthetist and witnessed by his assistant and a nurse moments before she went under a general anaesthetic for hip replacement surgery, in circumstances where she had before and after her surgery suffered from delirium, was valid. Applegarth J held that it was and admitted a copy (the original having been lost in the Nambour Hospital) to probate. The estate was valued at about $40 million, comprising prime farming and development land near Caloundra and the litigation was very hard fought between the deceased’s five children. Applegarth J’s judgment is now frequently cited in Queensland as setting out the test for testamentary capacity and for the admission of a lost will to probate. An appeal to the Court of Appeal was dismissed. Jeff appeared (with James Bell KC) for three of the children at trial and on appeal. Applegarth J’s costs judgment, which expressly adopts Jeff’s submissions (paras [25]-[28]), has become a leading Queensland statement of the law applicable to costs in solemn form probate proceedings. The independent administrator to whom Applegarth J granted letters of administration made an administration application in 2013 seeking directions as to how he should effect the final distribution of the estate (S 12241 of 2013). Jeff appeared at the hearing of that application before Byrne SJA.
Superannuation
Jeff advises in relation to superannuation matters, including as to:
- the validity of death benefit nominations, which may involve questions of construction of and compliance with the Superannuation Industry (Supervision) Act 1993 (Cth) and regulations, and the trust deed, or of the capacity of the member making the nomination;
- the compliance of self-managed superannuation funds with the requirements of the Superannuation Industry (Supervision) Act for the maintenance of their status as such, particularly after the death of a member;
- the management of conflict between the role of personal representatives who are also the trustees, or the directors of the trustee, of self-managed superannuation funds, particularly in relation to the exercise of the trustees’ discretionary powers over the payment of death benefits.
Other matters
Other matters in which Jeff has appeared include Downer EDI Mining Pty Ltd v Wambo Coal Pty Ltd [2012] QSC 290 (stay in reliance on contractual dispute resolution procedure) (with David Jackson KC); Creswick v Creswick [2010] QSC 339 and Creswick v Creswick (No 2) [2011] QSC 118 (with Liam Kelly KC) (undue influence, unconscionable conduct and forgery); St George Bank Ltd v Perpetual Nominees Ltd [2011] 1 Qd R 389; [2010] QSC 57 (with David Jackson KC) (priority of equitable chargees; overreaching effect of exercise of power of sale); O’Connor v Arrow (Daandine) Pty Ltd [2009] QSC 432 (a matter under the Petroleum and Gas (Production and Safety) Act 2004 (Qld)); Australian Postal Corporation v Ace Property Holdings Pty Ltd [2009] QSC 199 (with James Bell KC) (permissibility of sub-lease); HZD Pty Ltd v McInnes (with Walter Sofronoff KC) (contractual formation at auction); D’Aguilar Gold Ltd v Gympie Eldorado Mining Pty Ltd [2008] 1 Qd R 56; [2007] QCA 158 (with Peter Dunning KC) (priority of interests under the Mineral Resources Act 1989 (Qld)); C v B and W [2007] 1 Qd R 212; (2006) 35 Fam LR 547; [2006] QSC 195 (with Damien Mullins SC) (private international law); Northbuild Construction Pty Ltd v Capital Finance Australia Ltd (2007) 23 BCL 70; [2006] QSC 81 (with John McKenna KC) (entitlement to bank guarantees under building contract).
