BAKRANICH v Brian Leonard Robertson (As Executor of the Estate of ANTUN Grego BAKRANICH (Dec))
[2005] WASC 117
•14 JUNE 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BAKRANICH & ORS -v- BRIAN LEONARD ROBERTSON (As Executor of the Estate of ANTUN GREGO BAKRANICH (Dec)) & ORS [2005] WASC 117
CORAM: MASTER NEWNES
HEARD: 18 MAY 2005
DELIVERED : 14 JUNE 2005
FILE NO/S: CIV 1593 of 2004
BETWEEN: ALBIT BAKRANICH
First Plaintiff
MIRCO BAKRANICH
Second PlaintiffTONY BAKRANICH
Third PlaintiffAND
BRIAN LEONARD ROBERTSON (As Executor of the Estate of ANTUN GREGO BAKRANICH (Dec))
First DefendantPAUL ANTHONY ROBERTSON
Second DefendantDAVID GREGORY ROBERTSON
Third DefendantMIRKA ROBERTSON
Fourth Defendant
Catchwords:
Practice and procedure - Application to re-open case after reasons for judgment delivered - Relevant principles - Turns on own facts
Legislation:
Town Planning and Development Act 1928 (WA)
Result:
Application to re-open refused
Category: B
Representation:
Counsel:
First Plaintiff : Mr J C Curthoys
Second Plaintiff : Mr J C Curthoys
Third Plaintiff : Mr J C Curthoys
First Defendant : No appearance
Second Defendant : Mr D M Stone
Third Defendant : Mr D M Stone
Fourth Defendant : Mr D M Stone
Solicitors:
First Plaintiff : Merle Bloch
Second Plaintiff : Merle Bloch
Third Plaintiff : Merle Bloch
First Defendant : No appearance
Second Defendant : Williams & Hughes
Third Defendant : Williams & Hughes
Fourth Defendant : Williams & Hughes
Case(s) referred to in judgment(s):
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Cavanagh-Lang v O'Callaghan [2000] SASC 187
Dyer v Dorset County Council [1989] QB 346
Hoad v Nationwide News Pty Ltd, unreported; SCt of WA (Anderson J); Library No 970043; 13 February 1997
Manwelland Pty Ltd v Dames & Moore Pty Ltd [2001] QCA 436
Methuen-Campbell v Walters [1979] QB 525
Norman v Norman (1992) 6 WAR 372
Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWCA 471
Case(s) also cited:
Carlin v Hamersley Iron Pty Ltd [2003] WASCA 270
City of Belmont v Link Interiors Pty Ltd [2001] WASC 64
Davis v Richards & Wallington Indsutries Ltd [1991] 2 All ER 563
Goldsmith v Sandilands (2001) 26 ALJR 1024
JWH Group Pty Ltd v Kimpura Pty Ltd [2004] WASC 40
Li Shi Ping & Liu Xiu Ling v Minister for Immigration, Local Government & Ethnic Affirs [1995], unreported; FCT; 13 April 1995
Naresh v Millard [2004] WASCA 241(S)
Orr v Holmes (1948) 76 CLR 632
Perpetual Trustees WA Ltd v Riverwest Pty Ltd [2004] WASC 81
Silver Fox Company Pty Ltd v Lenard's Pty Ltd (No 2) [2004] FCA 1310
Singh v Crafter (1990), unreported; SCt of WA; Library No 8434
Timber Top Realty Pty Ltd v Mullens [1974] VR 312
WMC Resources Ltd v Bulong Operations Pty Ltd [2000] WASC 131
Yolarno Pty Ltd v Transglobal Capital Pty Ltd (No 4) [2003] NSWSC 1206
MASTER NEWNES: On 22 February 2005, I delivered my reasons for decision on the plaintiffs' application for a declaration that certain bequests in the will of their late father were void. By his will, the testator devised his principal residence "and the lot on which it stands" to one of his grandsons and to another grandson he devised the granny flat attached to the residence "and the lot on which it stands". In fact, the principal residence and granny flat stood on one lot. I found that the bequests were void in that they were uncertain and, in any event, they were contrary to s 20(1)(a) of the Town Planning and Development Act 1928 (WA). I adjourned the matter to allow a minute of orders to be brought in to give effect to my reasons, following consultation between the parties.
On 14 March 2004, an affidavit of Georgina Pitt, sworn 11 March 2004, was filed and notice was given that the second, third and fourth defendants (the "defendants") wished to re‑open their case. In that affidavit, Ms Pitt, who was counsel for the defendants at the hearing, said that she had since been informed and believed that a fence divides the rear of the property into separate gardens for the granny flat and the principal residence respectively. The fence had been constructed by the testator at the time the granny flat was constructed. Annexed to Ms Pitt's affidavit is a photograph of the fence, as it currently stands.
Ms Pitt says that the front portion of the land is separated into two gardens by a flower bed which runs from the front of the common wall to the cross‑over on the street verge. Ms Pitt says she had been informed that from about 1982 the testator had let the granny flat to various tenants who had paid rent to him, and that both the local authority and the water authority separately rated the granny flat and the principal residence for council and water rates respectively. Ms Pitt says that the defendants have informed her that the plaintiffs have always been aware of the rear fence and front garden, and the fact that the granny flat was let by the testator.
Ms Pitt says in her affidavit that none of those matters were known to her at the time of the hearing. Ms Pitt goes on to say:
"Nor would I have considered them to be material to the disposition of the summons, since the use made by the testator and others of the granny flat and principal residence respectively, and the land appurtenant to each was not raised as an issue."
An affidavit of the second defendant was later filed confirming the state of the premises as deposed to by Ms Pitt and that the granny flat was let for a number of years by the testator. The second defendant also confirmed that the fence dividing the rear of the property was constructed at about the time the granny flat was built. Neither the second defendant nor Ms Pitt say for how long the garden bed at the front of the building has existed. The second defendant says the plaintiffs knew of the physical state of the property.
The defendants now seek to re‑open their case to adduce in evidence the matters set out by Ms Pitt and the second defendant in their affidavits. That application is opposed by the plaintiffs.
The discretion to allow a case to be re-opened
I did not understand it to be in dispute that, until the judgment has been extracted, the Court has a discretion to allow a party to reopen their case, where the interests of justice require it. But it is a power to be exercised sparingly and having regard to the public interest in the finality of litigation.
In Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 265, Brennan, Dawson, Toohey and Gaudron JJ said (at 265):
"It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected … The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation … Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the reopening of a case but they are not matters which bear on the nature of the review to be undertaken once it is reopened … "
Their Honours said at 266 – 267:
"It is again necessary to distinguish between the considerations which may bear on a decision to reopen and the processes involved in reconsideration once a case has been reopened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application [authorities omitted]. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete [authorities omitted], or one in which reasons for judgment have been delivered [authorities omitted]. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side [authorities omitted]. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to reopen should be exercised. But those considerations bearing on reopening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called."
It is clear that in the present circumstances, no final order having been made, the Court has the power to permit the defendants to re-open their case. As I have said, it is a power to be used sparingly. In Norman v Norman (1992) 6 WAR 372, Murray J, having concluded that, as the order concerned had not been extracted, it could be recalled, said:
"… but as has been pointed out, that is a discretionary power which I am required to exercise judicially rather than capriciously. I think it is also a power that should be exercised sparingly, consistently with the general principle that once the proceedings have been concluded in their hearing and final orders pronounced, that should be regarded as an end to the matter unless something affirmatively can be brought to the attention of the Court to show that an injustice would be done by allowing the order to remain as pronounced."
See also Hoad v Nationwide News Pty Ltd, unreported; SCt of WA (Anderson J); Library No 970043; 13 February 1997.
In Manwelland Pty Ltd v Dames & Moore Pty Ltd [2001] QCA 436, McPherson JA (with whom Thomas JA and Douglas J agreed) said, at [34], that the fact that an application to re‑open is made only after the reasons for judgment have been given is a factor that weighs heavily against it being granted.
The discretion to permit a party to reopen their case may properly be exercised to correct the errors of counsel: Cavanagh-Lang v O'Callaghan [2000] SASC 187; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWCA 471. But it will not be exercised simply because it appears that it might have been better had the party's case been presented differently. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, Mason CJ said (at 303):
"However, it must be emphasised that the jurisdiction [to allow a case to be re‑opened] is not to be exercised for the purpose of reagitating arguments already considered by the court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
While it is not necessary to show that the evidence sought to be led could not by reasonable diligence have been discovered beforehand, the cases to which I have referred make it clear that if evidence could reasonably have been adduced in the first place, the reason why it was not adduced is a relevant factor. A decision not to call the evidence will generally be decisive against allowing it to be admitted later.
The defendants' submissions on the application to re-open
It was submitted on behalf of the defendants that the evidence was not called at the hearing because counsel for the defendants did not understand that the fact that the two buildings had separate curtilages was in issue. The defendants' submissions filed on 3 November 2004 specifically asserted that "each [subsisting] house has its own curtilage; the subject of the beneficial interest is adequately described". The plaintiffs did not file any submissions in response to that, nor otherwise indicate that that assertion was in issue. In addition, it was submitted, the plaintiffs' affidavits in support of the application did not assert that each building did not have its own curtilage and accordingly the defendants' affidavits did not deal with that issue.
Counsel for the defendants argued that the problem had arisen in circumstances where the case had proceeded without pleadings, so the issues were not crystallised, and the plaintiffs had not disputed the assertion in the defendants' submissions that each building had its own curtilage, and so apparently no issue was joined as to that.
It was submitted on behalf of the defendants that the case had obviously miscarried because it had been decided on the basis that there was no evidence of the manner in which the land surrounding the buildings had been used or occupied prior to the testator's death, whereas evidence was available to be led on that point which was clear and indisputable. It was not a case where a conscious decision had been made not to call the evidence. Rather, the question of curtilage was not raised as an issue by the plaintiffs and, had it been raised, the evidence that is clearly available would have been led by the defendants. That evidence, it was submitted, would almost certainly have led to a different result.
The plaintiffs' submissions on the application to re-open
It was submitted on behalf of the plaintiffs that no reason had been shown to allow the defendants to re‑open their case. The issue of the uncertainty of the bequests had been squarely raised in the plaintiffs' outline of submissions filed on 25 October 2004. If the defendants had wished to adduce evidence of additional facts that they contended were relevant to the determination of the testator's intention in relation to the gifts, it was up to them to do so. They had not sought to do so but had been content to argue the case on the basis of the affidavit evidence that had been adduced. To allow them to re‑open their case now to adduce that additional evidence would be to allow them to re‑argue the matter on a different basis, having lost on the basis on which they chose to argue the case at the hearing.
The defendants' case at the original hearing
It is necessary, in order to understand how the defendants' case was advanced at the hearing, to refer first to the affidavit evidence and submissions filed on behalf of the defendants.
The originating process was filed on 4 May 2004. The affidavit filed on behalf of the plaintiffs in support of the application simply referred to and annexed the Will and a copy of the duplicate certificate of title.
An affidavit of the first defendant was filed on 10 August 2004. In that affidavit, the first defendant says that he has contacted a licensed surveyor, Mr Kemp, and sought his opinion on the subdivision of the land. A copy of Mr Kemp's report is annexed. In it, Mr Kemp says that the land is zoned R40 so the minimum lot size is 200 square metres and the property could be strata titled to create two lots. Attached to Mr Kemp's report is a plan of a proposed subdivision, the property being divided from front to back by a straight line running along the common wall between the principal residence and the granny flat, dividing the property into one lot of 418 square metres and another of 1200 square metres.
The first defendant goes on to say that he has taken steps to implement the subdivision and anticipates a strata plan being registered in the near future. He says that if the validity of the gifts is upheld it will be a simple matter to put the gifts into effect. If, on the other hand, the lot has to be sold, it can either be sold as one lot or two lots, with the prospect of an increased return.
On 22 October 2004, an affidavit of a solicitor for the defendants, Ms Maher, sworn that day, was filed on behalf of the defendants. In the affidavit, Ms Maher says she requested a report from Mr Kemp in relation to the subdivision of the property and annexes a copy of the report. In the report, a copy of which is annexed to the affidavit, Mr Kemp says that under the relevant town planning scheme the land could have been subdivided into two lots as at 13 September 1985 or at any time thereafter.
At paras 15 to 17 of their written outline of submissions filed on 15 October 2004, the plaintiffs had submitted:
"15.In the alternative the gift must fail for uncertainty in any event.
16.That one cannot say what portion of land each of the grandsons was to receive, makes the provision incapable of application and uncertain. One cannot discover from the Will or the facts what portion of the whole each was to comprise or whether in fact the whole was disposed of. (Donaldson v Leaf [1907] VLR 278).
17.The court cannot avoid the unfortunate outcome of the failure of the gift by construing that one or other of the beneficiaries could select the boundaries of the land (In re Cheadle (1900) 2 Chancery 620 and Donaldson v Leaf)."
The defendants' written outline of submissions was filed on 13 November 2004. In the outline it was submitted that the testator had devised the property on express trust to his trustees. It is then, relevantly, submitted:
"4.The testator has created an executory trust. He has not 'acted as his own conveyancer', but given the 'lot' to his trustees evincing the intention that Paul and David respectively should have the described subsisting dwellings (as the 'lot'). The executory trust is in effect a trust which confers on the Court, or the trustees, the power to do those things necessary to carry the trust into effect – including to subdivide the 'lot' (in accordance with section 21(1)(a)) so that the dwellings, the subject of the trust, may be transferred to the nominated beneficiaries lawfully.
5.The subject matter of the trust in each case is certain:
5.1each (subsisting) house has its own curtilage; the subject of the beneficial interest is adequately described – Perpetual Trustees Ltd v Riverwest Pty Ltd (supra) at para 80;
5.2that an interest is defeasible does not prevent it being the subject matter of a trust: Principles of the Law of Trust, Ford & Lee at para [4050]."
That is consistent with the way the defendants' case was presented at the hearing. Counsel for the defendants, Ms Pitt, said (page 12 of the transcript):
"He [the testator] didn't intend to give the boys, the grandsons, two lots, he intended to and did give his trustees the property to subdivide and pass on once the boys had attained the age of 25 years. There is a trust created by cl 2. It's a trust in two parts: one for the use and occupation of the boys until they turn 25, and then to the trustees to subdivide and pass on to the boys absolutely."
It was submitted that in this case the obligation was placed on the trustee to obtain subdivisional approval and then to transfer the subdivided lots to the grandsons. In the case of such a trust it did not matter that the testator did not leave directions in his will to his executor and trustee as to the subdivision or how it was to be effected.
The argument proceeded (pages 14 to 16 of the transcript) as follows:
"PITT, MS: ... Sir, there are no specific words requiring the executor and trustee to subdivide. It's simply the way that it is set out. It's a trust. A trust is created in paragraph 2 and the first part of the trust is a use and occupation to the boys until they are 25, and then to their own use entirely. What isn't expressed in there is the subdivision, that direction to subdivide, but it's the only way the will can be read. There would be no point in creating a trust if the testator had intended a direct gift.
As to the issue of where the boundary should be drawn between the lots, sir, if I can take you to the passage in Siewert where Barker J dealt with the issue of the pine log house, it starts at paragraph 80 which is on page 22 of the judgment.
THE MASTER: Yes.
PITT, MS: He starts in paragraph 80 by saying:
'There are many examples of devises of a house where the devise has not been spelled out in metes and bounds or by some particular description of the land which have been found not to fail for want of certainty.'
So that is the first point. You can describe land or a lot without describing it in its technical sense. Then in paragraph 81 he deals with the gift of the pine log house and he says he is not certain, or is not satisfied that that part of the gift is void for uncertainty. He says, and it's the third sentence:
'If it were a gift only of the pine log house her argument on this point may succeed.'
THE MASTER: Doesn't that go back to the second sentence in paragraph 80:
'A house may according to the context of [sic or] the circumstances include land occupied and enjoyed with it, especially if such land is necessary for its convenient use or occupation.'
PITT, MS: That's right, sir.
THE MASTER: Presumably about which there would be some evidence.
PITT, MS: Yes, but then he goes on in paragraph 82 to say this particular gift, in his view, isn't two separate gifts, the pine log house and a separate gift of one acre of land, it's a compendious gift of a pine log house and an acre of land, and it is that second portion of it that you can't divide because they are not two separate gifts that causes the entire gift to fail for uncertainty.
If for example the testator had given the pine log house and had given the block of land separately, his Honour may well have found that gift of the pine log house didn't fail for uncertainty but the acre of land did fail for uncertainty for the same reasons as the other gifts of acres of land failed for uncertainty, but because it was all together and he didn't feel he could separate those gifts, he had to hold that the whole gift failed.
THE MASTER: It is said, as I understand it, against you that in effect what his Honour found was that because of the context of [sic, or] the circumstances, when one refers to a house one can be taken to refer to the land which is usually or conveniently used and occupied with the house, as I say, about which presumably there would be evidence; the orchard in the instance to which his Honour refers. But in this case the precise nature of the subdivision which is said to be necessary was not something which inevitably flowed from the context or the circumstances.
PITT, MS: The answer to that is it's obvious where the line must be drawn and it is sufficiently obvious that the court would not say that this gift fails for want of certainty. There isn't another logical way of subdividing this property, given where the two houses sit and given where the road adjoins the property, and for that reason it shouldn't fail for want of certainty simply because the testator hasn't described in metes and bounds or by some more particular description how the land should be subdivided."
I should also say that, early in the hearing, I raised with counsel for the plaintiffs the question of the separate rating of the properties. The following exchange is to be found at page 8 of the transcript:
"THE MASTER: In the will there's reference to the particular beneficiaries paying all rates, taxes, outgoings, and so forth, on the main house and the granny flat, but I take it that they weren't during the life of the testator separately taxed or rated or otherwise dealt with individually by the relevant authorities.
BLOCH, MS: I don't see how they could have been, sir.
THE MASTER: There's no evidence that they were.
BLOCH, MS: No, there's no evidence that they were.
THE MASTER: Yes.
BLOCH, MS: Sir, the position is that what the will tells us is that one lot has the granny flat, one lot has the residential property. We don't know where the land surrounding that was intended by the testator to be. We don't know where the line was to be drawn, we don't know that Paul was to receive two‑thirds of the land and David was to receive one‑third of the land, which has been the effect of the subdivision if the subdivision is effected to dispose of the land in accordance with the terms of the will."
It is, in my view, clear that the plaintiffs' case was that the gifts were uncertain because the intention of the testator as to how the land was to be divided between the grandsons could not be ascertained. The defendants' case in response was that first, under the will there were not separate gifts to each grandchild but a gift to the trustees of the whole land on trust to bring about a subdivision and then to transfer the subdivided lots to each grandson; and, secondly, that it was manifestly obvious from the physical configuration of the two buildings and the location of the roadway, what subdivision was to be carried out by the trustees.
It cannot, therefore, be regarded as a case where the defendants' counsel did not adduce evidence as to the previous usage or occupation of the land associated with the granny flat and the residence respectively because she was under a misapprehension as to the plaintiffs' case. Those matters were never inquired into by the defendants' solicitors and the evidence was not adduced because it was not regarded as relevant to the case advanced on behalf of the defendants.
As I have mentioned, in her written outline of submissions for the original hearings the defendants' counsel had said that "each (subsisting) house has its own curtilage" [emphasis added]. When I drew to the attention of the defendants' counsel on the hearing of this application that the submission was framed in the present tense, he submitted that it was to be inferred that that was the position as at the testator's death on 17 August 2002. I do not accept that. It was never at any stage suggested that such an inference was to be drawn. The statement in the submissions is consistent with the defendants' case, as advanced at the hearing, that the devise was a gift on trust for the trustees to carry out the subdivision of the property and then to transfer the subdivided lots to the designated grandsons, and the evidence that the property was readily capable (and indeed was in the process) of subdivision.
It is also clear that whatever might have been meant by the statement in the defendants' outline of submissions that each house had its own curtilage, it was not a reference to the garden bed and fence, of which, Ms Pitt says in her affidavit, at the time of the hearing she was unaware.
Moreover, the fact that the plaintiffs did not serve submissions in reply expressly disputing the statement in the defendants' submissions as to the current curtilage, does not explain why the defendants did not seek to adduce any evidence on the matter. It is the case that the word "curtilage", if not a term of art, is the next best thing: see Nourse LJ in Dyer v Dorset County Council [1989] QB 346 at 358. The meaning of the term in Australia is consistent with its historical meaning. The Macquarie Dictionary defines it as: "The area of land occupied by a dwelling and its yards and outbuildings, actually enclosed or considered as enclosed"; cf. the discussion of the origins of the term in Dyer v Dorset County Council (supra). But what constitutes the curtilage of a dwelling is a question of fact in each case: Methuen-Campbell v Walters [1979] QB 525 at 538 per Goff LJ.
In this case no evidence was sought to be led as to what constituted the curtilages referred to in the defendants' written outline of submissions, much less that the curtilages referred to were co-terminus with the lots which would be created by subdividing the land in the manner contended for by the defendants. Indeed, in the course of oral argument on the application, no reference was made to curtilages at all. It was simply argued that the form the division of the land was intended to take was obvious and inevitable from the physical configuration of the two buildings and the location of the roadway.
Conclusion
The position, then, as it appears, is that the evidence now sought to be led was not relevant to the defendants' case as it was to be, and was, advanced at the hearing. It was presumably for that reason that no enquiries were made into those matters and in that sense it can be said that a decision was made not to call evidence of that nature.
I rejected the case advanced on behalf of the defendants, for the reasons set out in my reasons for judgment. The case having been advanced, and lost, on one basis, the defendants now effectively seek to reopen it to contest it on a rather different basis.
In my view, circumstances have not been shown which would warrant the defendants being permitted to reopen their case. It would also be contrary to principle and to the public interest in the finality of litigation to permit that course to be taken. In effect, it would be to allow the defendants a backdoor method by which to reargue their case on a different basis, the approach taken at the hearing having proved unsuccessful. In the circumstances, I would decline to exercise my discretion to permit the defendants to reopen their case.
If, as submitted on behalf of the defendants, the facts now sought to be led in evidence are incontestable, this outcome may be regarded as regrettable. Nevertheless, it is simply the result of the way the case was fought at the hearing. I might add that it is not entirely clear that the facts are uncontested, the plaintiffs' counsel having declined an invitation during the course of hearing of this application to comment on whether the plaintiffs took issue with them on the basis that it was not relevant to the current application.
In my view, the application by the defendants to reopen their case should be dismissed.
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