Supreme Court of Queensland – Trial Division
Hemmant’s List member Peter Sams appeared for the third applicant and second respondent. Fellow List member Katrina Kluss appeared for the independent administrator / first respondent.
Frater v Murphy arose from ongoing litigation concerning the estate of Prudence Permewan.
The application was brought by one of the applicants for provision in the context of a family provision proceeding under s 41 of the Succession Act 1981 (Qld). The applicant sought orders that the administrator be directed to sell estate assets to improve the possibility of a settlement of the proceeding, and also sought relief concerning the validity of trust resolutions.
As to the direction to sell, the Administrator argued that it was not in the interests of the estate to sell the asset at this time because there was no need to do so to meet the liabilities of the estate, and a sale would trigger significant tax and deprive the estate of income generated by the asset. The second respondent (who is the residuary beneficiary) argued that the sale of the asset would also deprive it of the opportunity to take that asset in specie in circumstances where there was no evident need to sell.
The Court was not satisfied that the proposed sale was in the interests of the estate or its beneficiaries.
As to the validity of the trust resolutions, a key issue was whether the applicant had established a sufficient basis for the declarations. The Court emphasised that a party seeking declaratory relief bears the onus of proving the facts necessary to support the declaration sought. It was not enough merely to raise doubt about whether the resolutions were valid.
The Court was also critical of aspects of the affidavit evidence and the way the application had been formulated. The material did not provide a sufficient basis for the Court to make the declarations sought.
The application was dismissed.