DISTRICT COURT OF QUEENSLAND

CITATION:	Hartley v Hartley [2022] QDC 217	
PARTIES:	CRAIG ANDREW HARTLEY 
(Applicant)
v
HARTLEY (AS EXECUTOR OF THE WILL OF SHIRLEY LILLIAN HARTLEY (DECEASED)
(Respondent)	
FILE NO:	27 of 2017
	
DIVISION:	Civil	
PROCEEDING:	Trial	
ORIGINATING COURT:
	Cairns	
DELIVERED ON:	19 August 2022	
DELIVERED AT:	Cairns	
HEARING DATE:	12 & 13 May 2021, 11 July 2022.	
JUDGE:	Morzone QC DCJ	
ORDER:	Subject to any application limited to the proposed orders for administration and costs within 14 days of this judgment, I order as follows: 
1.	Pursuant to section 41(1) of the Succession Act 1981 (Qld) (“the Act”), further and better provision be made for the proper maintenance and support of the Applicant out of the estate of Shirley Lillian Hartley, deceased, by inserting a new clause 7(aa) after clause 7(a) of the Will dated 2 March 2015 as follows:
“To give to CRAIG ANDREW HARTLEY the sum of $150,000.00 absolutely, such legacy to be paid from the proceeds of sale of any part of my estate.  For the avoidance of doubt, payment of the legacy in this sub-clause shall take priority over the disposition of the gifts in sub-clauses 7(b) to 7(d) inclusive of this will.” 

2.	The amounts payable in paragraph 1 above be paid by the estate to the trust account of Maurice Blackburn Lawyers, on behalf of the Applicant.
3.	The Applicant’s costs and outlays of and incidental to this Originating Application, up to and including trial, subsequent directions hearings and the 11 July 2022 return date for further argument following the Court of Appeal’s 27 May 2022 decision and this application for final orders fixed in the sum of $114,066.00 be paid on the indemnity basis as a liability of the Deceased’s estate.
4.	Within 30 days of the date of this order, Justyne Ford, at her sole cost, will take steps to apply to the Queensland Civil and Administrative Tribunal (QCAT) for appointment as the Applicant’s financial administrator to hold the amount payable in paragraph 1 after payment of the Applicant’s legal costs and outlays.
5.	Maurice Blackburn Lawyers are authorised to pay from their trust account the balance of the amounts payable in paragraphs 1and 3 above, after payment of their cost and outlays, to Justyne Ford upon her being appointed by QCAT as financial administrator for the Applicant, and not beforehand; and
6.	If the payments in paragraphs 1 and 3 are not paid within 35 days of Justyne Ford being appointed by QCAT as financial administrator for the Applicant, Justyne Ford as financial administrator for the Applicant has liberty to apply to the District Court to obtain judgment in DC 27/17 in the sum being the total of the amounts in paragraphs 1 and 3 against the estate.
7.	The Respondent’s costs of and incidental to the proceedings, up to and including 8 December 2020 will be paid to him from the estate on the indemnity basis.
8.	The Respondent bear his own costs of and incidental to the proceedings from 9 December 2020, up to and including trial, subsequent directions hearings and the 11 July 2022 return date for further argument following the Court of Appeal’s 27 May 2022 decision and this application for final orders personally, and he not be entitled to an indemnity for those costs from the estate.
	
CATCHWORDS:	SUCCESSION – FAMILY PROVISION - ELIGIBLE APPLICANTS – CHILD – return for revisitation of discretion and final order – further consideration of nature of the relationship between the deceased and applicant arising from statutory declaration by deceased – consideration of disentitling conduct as part of second stage – affirming provision ought be made – final judgment - costs follow event unless other order sought.	
LEGISLATION:	Succession Act 1981 (Qld) ss 40, 41(1) & 41(2)(c)	
CASES:	Blore v Lang (1960) 104 CLR 124 
Bosch v Perpetual Trustee Co Ltd (1938) AC 463
Freeman & Ors v Jacques [2006] 1 Qd R 318
Hills v Chalk & Ors [2008] QCA 159
Hughes v National Trustees, Executors and Agency Company of Australia Limited (1979) 143 CLR 13
Perpetual Trustee Queensland Ltd v Mayne [1992] QCA 417	
Pontifical Society for the Propagation of the Faith v. Scales (1962) 107 CLR 9
Re Hallahan (1918) 18 SR (NSW) 
Re Hatte [1943] St R Qd 1
Re Sinnott [1948] VLR 279 at 280
Singer v Berghouse (1994) 181 CLR 201
Stewart v Stewart [2015] QSC 238
White v Barron (1980) 144 CLR 431 
	
COUNSEL:	T Naylor for the Applicant
D Topp for the Respondent	
SOLICITORS:	Maurice Blackburn Lawyers for the Applicant
Cairns Beaches Law & Conveyancing for the Respondent	

Summary
[1]	On 14 December 2021, I published reasons for judgment foreshadowing final judgment with orders for further provision for the proper maintenance and support of the applicant in a specific bequest of $150,000, leaving the residue of the estate to be shared equally between the remaining beneficiaries.  
[2]	Recognising the impact of a money order from the estate of about $1,200,000 mainly comprising of three houses left to Shane, Peter and Damien under the will, I invited further submissions as to the terms of the final orders.  I ordered that:
“I will hear further submissions from the parties about the form of order consistent with this decision, and any application as to costs.”
[3]	The parties have returned for final judgment, but after proceedings in the Court of Appeal seeking an extension of the time within which to appeal.  I have had the advantage of the decision of the Court of Appeal made on 27 May 2022.  I respectfully acknowledge the observations of the Court distilling two matters warranting the revisitation of the exercise of discretion in the primary proceeding, being: firstly, my failure to treat the deceased’s statutory declaration as evidence in itself of its contents, including the making of a restraining order, when exercising discretion in consideration of both stages of the test; and secondly, erroneously treating the question of disentitling conduct as part of the first rather than the second stage of the exercise of discretion. 
[4]	Since this court is not yet functus officio, it is incumbent on me to reopen the proceeding to hear further from the parties, address the identified errors, and re-exercise the discretion on a proper basis having regard to the whole of the circumstances.  In doing so, I have had the benefit of further thorough written and oral submissions.
[5]	I have found that the applicant adult son of the deceased has been left without adequate provision for his proper maintenance and support.  In considering what provision ought be made, I am not satisfied that the applicant’s conduct is disentitling in all the contextual circumstances.  Further, provision ought be made for the proper maintenance and support of the applicant in a specific bequest of $150,000.00 and leaving the residual estate to be shared equally by the respondent beneficiaries.  I do so order.  
[6]	It seems to me that costs ought follow the event in the applicant’s favour, so that unless either party seeks a different order, the applicant’s costs should be paid by the estate with such costs to be assessed or agreed on an indemnity basis.
Consideration of evidence in the Statutory Declaration.
[7]	The first matter warranting my consideration is identified by the Court of appeal in paragraph [15] of the judgment as follows:
“[15] 	First, the primary judge had found that the matters raised by the deceased in the statutory declaration and uttered to others, went to the deceased’s reasons for excluding Craig, and were not evidence in themselves.  That conclusion was certainly correct in relation to the evidence as to the statements which she had made to others.  But it was wrong in relation to the statutory declaration.  The statutory declaration had been admitted pursuant to s 92 of the Evidence Act 1977 (Qld) and, accordingly, was to be regarded as proof of the truth of its contents.  Although the primary judge accepted that many of the matters dealt with by the statutory declaration were made out by other evidence, he also found that not all of them were.  For example, he found – wrongly because the statutory declaration amounted to such evidence – that there was no evidence that the deceased had taken out a restraining order on Craig, or of any reason for doing so.  The result was that the primary judge had made an evidentiary error which meant that he must have failed to take into account at least some facts relevant to the exercise of his discretion on both stages of the test.  That would amount to discretionary error within the meaning of House v The King (1936) 55 CLR 499 at 504-505.”
[8]	I was not correct to treat the statutory declaration as not evidencing its content because it was evidence pursuant to s 92 of the Evidence Act 1977 (Qld) and, it ought be regarded as proof of its contents.  For the most part it is consistent with the evidence already subject of my determination, and I deal with other matters below.  
[9]	I was and remain less sanguine about the accuracy of her assertion that “I have a restraining order on him” and that “He has recently broken into my home and stolen from me which is why I took the restraining order out on him.”  It seemed to me that whilst the deceased had the benefit of a domestic violence order (as distinct from a restraining order, it was not by her own application, nor for the reasons she asserted.  Instead, it seemed to me that that restraining order was made at the instigation of the respondent arising from an altercation between the brothers, the applicant and the respondent, when the deceased was present.
[10]	Justyne Ford deposed that the applicant regularly stayed at the deceased’s Pease Street property up until the brothers had the “big fight” about 2014.  She said this about the resultant domestic violence order and ongoing relationships:
22. 	The end result of this was that Shane sought an Apprehended Violence Order (“AVO”) against Craig for both him and Shirley.
23.	Shirley was careful to ensure that she caught up with Craig without Shane’s knowledge, as she did not want Craig to be charged with breaching the AVO.  She told me that Shane had just added her name to the AVO, and she didn’t want to be on it.
24.	She also told me that she thought it was a bad idea, and that Shane had a grudge against Craig for a long time.  Shirley often talked about how she wished that all her children would get along, but admitted to me she thought this would likely never happen.
25.	Shirly would often tell me during our conversations that she was scared to tell Shane anything about Craig, as Shane would get angry and yell at her.  She said that she didn’t want to cause any trouble.”
[11]	This evidence was not unseated by cross examination.  I have also remarked about the circumstances in relation to my consideration of the nature of the relationship between the deceased and the applicant,  and I add some more remarks here.
[12]	During cross examination, Shane testified that he and Craig obtained cross orders and that the deceased was also named in his order.  Shane had deposed to the continuing interaction of the deceased with Craig at paragraph 66 of his affidavit as follows:
“66. 	There were numerous times that I remember that mum would let Craig back into the house for periods of time.  About 6 years ago, mum allowed Craig back into the house as he came back begging her to help.  I was living with mum at this stage.  We had just … got a domestic violence order against Craig not long before.  But she did so because of Emily again.  Craig moved in with Bonnie and Emily.  He again turned violent and it was at that stage that I told mum that I am calling the police and that if she continued to allow him back into her life I would have to move.  My children did not want to visit at the house and it was really starting to impact my life.”
[13]	He also testified about taking out the domestic violence order in association with his application and that he put the deceased’s name “was put on it as well”.  As to future interaction between the deceased and applicant he had this exchange with counsel:
“….  But even though there was a domestic violence order, your mum still wanted to see Craig, didn’t she?‑‑‑She could have.
And she used to let him come to Pease Street to visit, even though there was a domestic violence order in place?‑‑‑She might have.  I – I didn’t see that.
All right.  And she still talked to him on the phone?‑‑‑She probably could have, yes.”
[14]	Damien also deposed to one occasion having an altercation with Craig and domestic violence on the following day, which resulted in the respondent being granted an order against the applicant and that he and the deceased were also named in the order.  At paragraph 64 and 65 he deposed that:
“64.	I remember when I came home on one occasion in 2013 as I was entering the front gate of the house, Craig started accusing me of something and started throwing punches at me violently on the driveway.  Even though he was not living there at the time he was over there trying to get money from mum.  This went on for a few minutes until I was able to get Craig in a headlock until he gave up as Mum was yelling form the kitchen to stop.  After this, I then walked out to leave and went out for a walk to get away.
65. 		The next day Craig came back and was so aggressive towards mum.  I remember he came back and started trying to fight me as well.  He was yelling at me and mum in the lounge room.  Mum had friends over and Aunty Fail was there.  Emily was outside playing with other children who were there with their parents.  Shane’s daughter had also come over for a visit but she was with Shane at the back of the house.  Craig was going crazy, mum was yelling at him to get out I was trying not to make the situation worse but Shane had heard the commotion and come out.  Craig was violent and Shane had to subdue him which he did.  After everything died down and Shane was pulled away from Craig, everyone told Craig to get out and not come back.  After this incident Shane was granted a domestic violence order and mum and me were also named on that order.”
[15]	It is in that context that I considered the advent of the domestic violence order, factual contest of past violence and impact on the ongoing relationship between the deceased and Craig.  I accept that by the statutory declaration on 2 March 2015, the deceased set out the reasons why she had made no provision for the applicant. Whilst she may have genuinely believed that she had a restraining order in the sense of a domestic violence order, her understanding of the grounds for the order were flawed.  I prefer the circumstances made out by other evidence, which I do accept.
[16]	As to the deceased’s declaration in paragraph 7 that the applicant ‘has recently broken into my home and stolen from me’, it is not clear to what she was referring.  Later in paragraph 9, she deposes that “He has recently stolen $1600.00 from me” but apparently recanted from her other line through assertions about the camera and holiday photos it contained. The applicant admits to stealing money, such is the tendency of a drug addict, and I found that it was likely to be in the order of $1600, as well as taking little bits of the deceased’s jewellery, but I accept his denial of breaking in and stealing $4500 of bingo winnings or her camera. 
[17]	As to the deceased’s declaration in paragraph 8 that the applicant “is a big disappointment to me and has done nothing to help me during my illness but cause me a great deal of stress’.  The applicant accepted that in the time leading to his mother death - “When I was at Lotus Glen when Mum was alive, I sent her cards, I tried to call a few times but I was never able to speak with her.”  In that regard, Damian deposed that - “In the last couple of years when Craig was in jail, he would call the house and want to speak to mum but mum would decline … Mum would say to me I don’t want to speak to him”.  It seems to me that the despite applicant’s efforts while incarcerated, the deceased rejected his attempts to make contact.  I maintain that there can be little doubt of the deceased’s perceived disappointment, lack of help, and stress.   This is consistent with the dynamic of the relationship of the drug addicted applicant with his mother, which I examined in my original reasons.  That relationship was obviously and persistently challenged and strained by the applicant’s conduct despite the deceased’s best efforts of motherly support and care. There was no breakdown in the relationship or estrangement between them, but her energy and patience waned in her unwell state. It seems to me that it was only her testamentary generosity that was apparently exhausted by the time of making her will. 
[18]	In the end, I place little weight on the deceased’s bare assertions in the statutory declaration, and I do not accept her evidence where it diverges from the matters made out by other evidence, which I do accept.
[19]	I maintain my view as to the nature of the relationship between the deceased and the applicant and the deceased’s wishes going to the first stage of the inquiry, and also in relation to the issue of disentitlement and its proper assessment relevant to the second stage of the inquiry.
Consideration of characteristics or conduct as disentitling relevant to the second stage of inquiry.
[20]	The second matter identified by the Court of Appeal as erroneous is summarised in para [16] as follows:
“[16] 	Second, the primary judge treated the question of the existence of disentitling conduct within the meaning of s 41(2)(c) as a question which should be considered at the first stage.  That was an error in the application of legal principle.  The question whether a judge should refuse to make an order in favour of any person because the judge finds their character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose circumstances are such as to make such refusal reasonable, is, in terms, part of the second stage enquiry.  Undoubtedly evidence relevant to that enquiry would also be relevant to the first stage enquiry, but at the first stage such evidence was to be considered in accordance with the test laid down for that stage and not by the application of the statutory terms applicable to the second stage.  That too would amount to discretionary error within the meaning of House v The King.”
[21]	My original reasons conflated my consideration of underlying relationship evidence and wishes of the deceased relevant to the first stage of the inquiry, with my findings about disentitling conduct subject of s 41(2)(c), which ought to be confined to the second stage of the inquiry.  
[22]	In answer to the first stage jurisdictional inquiry – is the applicant left without adequate provision? – my answer remains “yes”; a wise and just testatrix, should have made some provision for the applicant in her will.  Based on the underlying evidence putting aside my findings about the disentitlement point favouring the applicant.  It seems to me that the applicant’s hopeless state and its genesis, and its bearing upon the relationship with, and wishes of, his mother, 
[23]	I maintain that a wise and just testatrix, should have made some provision for the applicant in her will.
[24]	The respondent’s main contest before and now relates to the issue of disentitling conduct pursuant to s 41(2)(c) of the Succession Act, which is relevant to the second stage (not the first as I wrongly proceeded in the original decision).  The respondent has re-enlivened his opposition to any order for further provision because of the applicant’s disentitling conduct comprised of stealing from the deceased, hostility, exposing her to violence by drug associates, damaging property, physical and verbal domestic violence, and psychological stress and anxiety.  I have discussed these matters at length in my original reasons and maintain my findings favouring the applicant albeit relevant to the second stage.  Paragraphs [9] and [62]-[72] and associated paragraphs of the original reasons ought now be read as being referable to the second stage in so far as they go to my findings about the issue of disentitling conduct.  I maintain that the applicant has not breached the threshold of disentitling conduct to warrant exclusion from adequate provision from the deceased’s estate under s 41(2)(c) of the Act.  
[25]	And now further informed by the matters revisited and the positive findings properly relevant to this second stage of inquiry - what provision ought be made? – my final assessment remains at $150,000.00 for adequate provision for the proper maintenance and support of the applicant.
Orders
[26]	Subject to any application as to the order proposed for administration and costs within 14 days of this judgment, I make orders in terms contended by the applicant as follows:
(a)	Pursuant to section 41(1) of the Succession Act 1981 (Qld) (“the Act”), further and better provision be made for the proper maintenance and support of the applicant out of the estate of Shirley Lillian Hartley, deceased, by inserting a new clause 7(aa) after clause 7(a) of the Will dated 2 March 2015 as follows:
“To give to CRAIG ANDREW HARTLEY the sum of $150,000.00 absolutely, such legacy to be paid from the proceeds of sale of any part of my estate.  For the avoidance of doubt, payment of the legacy in this sub-clause shall take priority over the disposition of the gifts in sub-clauses 7(b) to 7(d) inclusive of this will;” 
(b)	The amounts payable in paragraph 1 above be paid by the estate to the trust account of Maurice Blackburn Lawyers, on behalf of the applicant.
(c)	The applicant’s costs and outlays of and incidental to this Originating Application, up to and including trial, subsequent directions hearings and the 11 July 2022 return date for further argument following the Court of Appeal’s 27 May 2022 decision and this application for final orders fixed in the sum of $114,066.00 be paid on the indemnity basis as a liability of the Deceased’s estate.
(d)	Within 30 days of the date of this order, Justyne Ford, at her sole cost, will take steps to apply to the Queensland Civil and Administrative Tribunal (QCAT) for appointment as the applicant’s financial administrator to hold the amount payable in paragraph 1 after payment of the Applicant’s legal costs and outlays.
(e)	Maurice Blackburn Lawyers are authorised to pay from their trust account the balance of the amounts payable in paragraphs 1and 3 above, after payment of their cost and outlays, to Justyne Ford upon her being appointed by QCAT as financial administrator for the applicant, and not beforehand; and
(f)	If the payments in paragraphs 1 and 3 are not paid within 35 days of Justyne Ford being appointed by QCAT as financial administrator for the applicant, Justyne Ford as financial administrator for the applicant has liberty to apply to the District Court to obtain judgment in DC 27/17 in the sum being the total of the amounts in paragraphs 1 and 3 against the estate.
(g)	The respondent’s costs of and incidental to the proceedings, up to and including 8 December 2020 will be paid to him from the estate on the indemnity basis.
(h)	The respondent bear his own costs of and incidental to the proceedings from 9 December 2020, up to and including trial, subsequent directions hearings and the 11 July 2022 return date for further argument following the Court of Appeal’s 27 May 2022 decision and this application for final orders personally, and he not be entitled to an indemnity for those costs from the estate.

Judge DP Morzone QC