Re Saunders

[2025] QSC 112

SUPREME COURT OF QUEENSLAND

CITATION:

Re Saunders [2025] QSC 112

PARTIES:

THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator for the estate of the late Bruce Saunders

(applicant)

FILE NO:

BS 12803 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

20 May 2025

DELIVERED AT:

Brisbane

HEARING DATE:

Application on the papers

JUDGE:

Davis J

ORDERS:

1.    The application be determined on the written submissions without an oral hearing.

2.    The Public Trustee, as administrator of the estate of the late Bruce James Saunders, is entitled to the money paid into Court.

3. Pursuant to s 27(2) of Civil Proceedings Regulation 2024, the Chief Executive pay the money to the Public Trustee as administrator of the estate from the Court Suitors Fund.

4.    The Public Trustee’s costs of and incidental to this application be paid from the deceased’s estate on the indemnity basis.

CATCHWORDS:

SUCCESSION – FORFEITURE WHERE TESTATOR OR INTESTATE KILLED UNLAWFULLY – OTHER MATTERS – where the deceased made a will on 24 October 2024 – where the appointed executor and sole beneficiary was later convicted of the deceased’s murder – where the Public Trustee of Queensland was appointed to administer the deceased’s estate – where the deceased had mortgaged his bequeathed property – where the mortgage fell into default and mortgagee exercised power of sale – where the sale led to a surplus of money held by the mortgagee – where no administrator of the estate had been appointed at the time of the sale and the surplus funds were paid into court – whether  the surplus funds should be paid to the Public Trustee as the administrator of the deceased’s estate – whether the application should be heard without an oral hearing

Uniform Civil Procedure Rules 1999, r 489

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59, cited
Helton v Allen (1940) 63 CLR 691; [1940] HCA 20, cited
Re Crippen [1911] P 108, cited

SOLICITORS:

Official Solicitor to the Public Trustee for the applicant

1. Application was brought by the Public Trustee of Queensland for orders:

   “1.That the Public Trustee, as administrator of the estate of the late Bruce James Saunders, is entitled to money paid in Court.

   2.Pursuant to Section 27(2) of Civil Proceedings Regulation 2024, the Chief Executive pay the money to the Public Trustee as administrator of the estate from the Court Suitors Fund.

   3.Such further or other order the Court considers appropriate.

   4.Costs on the indemnity basis.”

   Background

2. Bruce James Saunders died on 12 November 2017.

3. At the time of his death, Mr Saunders held the fee simple in property known as 24 Wentworth Court, Nambour.  The property was mortgaged to Perpetual Trustee Company Limited (Perpetual).  After Mr Saunders’ death, the loan to Perpetual fell into default and Perpetual sold the property.

4. After payment of the secured debt and expenses, a surplus of $34,441.83 was held by Perpetual.

5. By his last will made on 24 October 2017, Mr Saunders left his entire estate to Sharon Graham.

6. Ms Graham was later charged with the murder of Mr Saunders.

7. As Ms Graham would be ineligible to administer the estate and would not be entitled to the bequest if she murdered Mr Saunders,[1] Perpetual paid the money into Court.

   [1]Re Crippen [1911] P 108; Helton v Allen (1940) 63 CLR 691.

8. On 26 February 2020, the Public Trustee was granted an order to administer the will.  Ms Graham was convicted of the murder of Mr Saunders on 27 October 2023.  She has appealed against her conviction, but the appeal has not been heard.

9. Ms Graham asserts that she held an equitable interest in the property as a result of contributions she made.[2]

   [2]Baumgartner v Baumgartner (1987) 164 CLR 137.

10. The Public Trustee seeks to have the application dealt with on the papers without oral hearing.

    Determination without oral hearing

11. Rule 489 of the Uniform Civil Procedure Rules 1999 (UCPR) provides:

    “489   Proposal for decision without oral hearing

    (1)   A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.

    (2)   If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless–

    (a)under rule 491, the court considers it inappropriate to do so; or

    (b)under rule 494, the respondent requires an oral hearing; or

    (c)under rule 495, the applicant abandons the request for a decision without an oral hearing; or

    (d)the Chief Justice or Chief Judge suspends the operation of this rule by direction.”

12. The structure of r 489 is that:

    (a)jurisdiction to proceed without an oral hearing is granted;

    (b)the jurisdiction is enlivened by a proposal by an applicant; and

    (c)the proposal must be accepted in the absence of any of the circumstances prescribed in rr 489(2)(a)-(d).

13. None of the circumstances identified in rr 489(2)(c) and (d) arise. Ms Graham does not require an oral hearing so the circumstances in r 489(2)(b) do not arise. The sole question is whether the court considers it inappropriate to determine the matter without oral hearing.

14. For reasons which appear below, it is clear that the order should be made releasing the funds to the Public Trustee.  No reason is identified rendering it inappropriate to deal with the matter without oral hearing, and I will do so.

    Should the funds be released to the Public Trustee?

15. The Public Trustee is the administrator of the estate and therefore has a right to possession of the funds. 

16. The obligation of the Public Trustee is to administer the estate and that will require dealing with any issues raised by Ms Graham’s claim.

17. Payment of the money to the Public Trustee does not prejudice any claim which Ms Graham may have to an equitable interest.

18. In the circumstances, it is appropriate to make orders for the payment of the money out of Court to the Public Trustee.  It is also appropriate for the Public Trustee to have the costs of the application paid from the estate on the indemnity basis.

    Orders

    1.   The application be determined on the written submissions without an oral hearing.

    2.   The Public Trustee, as administrator of the estate of the late Bruce James Saunders, is entitled to the money paid into Court.

    3. Pursuant to s 27(2) of Civil Proceedings Regulation 2024, the Chief Executive pay the money to the Public Trustee as administrator of the estate from the Court Suitors Fund.

    4.   The Public Trustee’s costs of and incidental to this application be paid from the deceased’s estate on the indemnity basis.