Brooks v Brooks - [2022] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Civil)
BROOKS v BROOKS & ORS
[2022] SASC 1
Judgment of the Honourable Justice Stein
5 January 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The appellant seeks an extension of time to appeal against orders made by consent over six years ago following a mediation participated in by the appellant concerning provision from the estate of the appellant’s late father.
Held, dismissing the application for an extension of time to appeal:
1. The basis for an extension of time is not made out in the circumstances including that the delay is in excess of six years, the orders appealed were the product of mediation, terms of compromise were signed by the appellant and the appellant has not made out an arguable case for appeal.

Inheritance (Family Provision) Act 1972 (SA); Uniform Civil Rules 2020 (SA) r 1.5, r 212.2(1)(a), r 212.2(1)(i), r 212.3(2), r 213.1(1)(d); Supreme Court Act 1935 (SA) s 50(2), s 50(4)(a)(i), referred to.
Moody v Moody [1949] SASR 331; NZI Insurance Australia Ltd v Baryzcka & Anor (2002) 85 SASR 482; Workcover Rehabilitation and Compensation Corp v Elderly Citizen Homes of SA Inc [1999] SASC 332, considered.

BROOKS v BROOKS & ORS
[2022] SASC 1
Overview

On 26 March 2015, orders were made by Judge Withers (“Orders”) concerning provision from the estate of the appellant’s late father, Mr Hector Brooks. Those Orders were made by consent following a mediation on 19 February 2015 between the appellant and the respondents.
The appellant now seeks an extension of time to appeal against the Orders on various grounds.
Background
Some of the history of this matter is relevant to the application for an extension of time and to the grounds of appeal.
Mr Hector Brooks died on 17 February 2013. Probate of his will was granted on 6 November 2013 to his executors, the First, Second, Third and Fourth Respondents to this appeal.
On 5 May 2014, the appellant instituted proceedings for further provision from the deceased’s estate under the Inheritance (Family Provision) Act 1972 (SA) (“Original Action”). The appellant was assisted by his legal representative, Mr Gillam.
A mediation in the Original Action occurred on 19 February 2015 (“Mediation”). The mediator was Mr T R Anderson QC. The appellant was represented at the Mediation by a solicitor and counsel. At the Mediation, heads of agreement were signed by all parties, including the appellant. The heads of agreement provided for settlement of the action and of other entitlements of the appellant. It provided for the appointment of a trustee, independent of the appellant, to administer a trust in the interest of the appellant’s children. Following the Mediation, the Court was asked to make the Orders agreed by the parties. Accordingly, on 26 March 2015, the Orders were made. This included an order making terms of compromise as agreed by the parties a rule of the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brooks v Brooks

Details

AGLC: Brooks v Brooks [2022] SASC 1
Case: [2022] SASC 1
Decision Date: 5 January 2022

CaseChat Overview and Summary

In Brooks v Brooks, the appellant sought an extension of time to appeal against orders made in proceedings for further provision from the deceased's estate. The appeal was against the executors of the deceased's will and the trustees of trusts established by the will. The legal issues involved the appellant's delay in appealing, the nature of the orders made by consent and signed by the appellant, and whether the grounds of appeal were legitimate. The court held that the appellant's application for an extension of time should be dismissed. The court found that the delay in appealing was excessive, the orders were the result of a mediated settlement, and the terms of compromise were signed by the appellant. Additionally, the court concluded that the appellant had not made out an arguable case for appeal. The court further found that the grounds of appeal were largely nonsensical and did not provide legitimate reasons for the appeal. Consequently, the application for an extension of time was dismissed.

Orders

Orders of the court

Held, dismissing the application for an extension of time to appeal:

1. The basis for an extension of time is not made out in the circumstances including that the delay is in excess of six years, the orders appealed were the product of mediation, terms of compromise were signed by the appellant and the appellant has not made out an arguable case for appeal.

Background

Background to the litigation

The appellant now seeks an extension of time to appeal against the Orders on various grounds. Background Some of the history of this matter is relevant to the application for an extension of time and to the grounds of appeal. Mr Hector Brooks died on 17 February 2013. Probate of his will was granted on 6 November 2013 to his executors, the First, Second, Third and Fourth Respondents to this appeal. On 5 May 2014, the appellant instituted proceedings for further provision from the deceased’s estate under the Inheritance (Family Provision) Act 1972 (SA) (“Original Action”). The appellant was assisted by his legal representative, Mr Gillam. A mediation in the Original Action occurred on 19 February 2015 (“Mediation”). The mediator was Mr T R Anderson QC. The appellant was represented at the Mediation by a solicitor and counsel. At the Mediation, heads of agreement were signed by all parties, including the appellant. The heads of agreement provided for settlement of the action and of other entitlements of the appellant. It provided for the appointment of a trustee, independent of the appellant, to administer a trust in the interest of the appellant’s children. Following the Mediation, the Court was asked to make the Orders agreed by the parties. Accordingly, on 26 March 2015, the Orders were made. This included an order making terms of compromise as agreed by the parties a rule of the Court (“Terms of Compromise”). Amongst other things, the Terms of Compromise stipulate in clause 4 the receipt of $1,650,000 by the appellant in full and final satisfaction of his claims and entitlements to the deceased’s estate, a trust known as the Christopher Trust, and to a further trust, the HB Brooks Trust. Clause 10 of the Terms of Compromise sets out a division of the Christopher Trust property such that one half of that property is held on trust for the appellant’s children (“Christopher Sub-Trust”) and the other half is held on trust for the appellant’s former wife and her two children. The Terms of Compromise included in clause 12 that “each of the parties to these Terms of Compromise has had independent legal advice as to the signing of hereof”. The Court’s Record of Outcome dated 26 March 2015 notes the Orders “has the consent of the pltf endorsed on it”. The appellant’s signature appears on the Terms of Compromise. That fact was not disputed by the appellant at the hearing before me. On 20 June 2016, the appellant, assisted by his new legal representative, Mr Field, filed an interlocutory application seeking orders from the Court to enquire into the manner in which the trustees were managing the invested lump sum and the adequacy of the provision of funds for the proper maintenance, education and advancement of the beneficiaries. The supporting affidavit to that application stated the appellant was, amongst other things, concerned he had been denied the opportunity to exercise his rights under the Orders to select trustees of the Christopher Sub-Trust, that it was not appropriate for the Christopher Sub‑Trust funds to be held in shares, and that the trustees of the Christopher Trust and Christopher Sub-Trust were not adequately providing for the appellant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the respondents submitted that the other reasons in the Notice of Appeal are “unintelligible to the respondents and appear irrelevant to the exercise of the Court’s discretion”. She submitted that the grounds of appeal raised by the appellant “do not disclose any legitimate ground of appeal but rather provide a discursive and largely nonsensical account of various of the appellant’s grievances against the deceased, his legal representatives, the deceased’s legal representatives, the executors and trustees”. Decision - Extension of time I accept the submissions of the respondent. The material before me does not satisfy me that there are appropriate grounds upon which I should exercise my discretion to order an extension of time in circumstances in which:1. the delay is in excess of six years;2.the Orders were the product of the Mediation and the Terms of Compromise were signed by the appellant;3.the appellant filed an interlocutory application in 2016 which, albeit of a somewhat different nature, raised similar matters to the matters put forward in support of the extension of time and the complaints made in this appeal; and4.the previous interlocutory application was dismissed in 2017 after the process to which I have referred above. I also take into consideration, as I address below, that the appellant has not made out an arguable case for appeal.Permission to appeal The Orders were made by consent. Pursuant to s 50(4)(a)(i) of the Supreme Court Act 1935 and r 213.1(1)(d) of the UCR, permission to appeal is required in respect of a judgment given by consent. Permission was not sought. However, I would have refused permission if it had been sought for the same reasons I have articulated above (in relation to the request for an extension of time) and below (in relation to the merits of the appeal). Grounds of appeal In case I am wrong in relation to the application for an extension of time, and in circumstances in which the material put on the grounds of appeal overlaps substantially with the material for the extension of time application, I have proceeded to consider the grounds of appeal. The appellant’s Notice of Appeal states the appeal is against “all the orders sort [sic] by the defense [sic] in case 545-14”. The appellant requests the orders are “dismissed, put aside”. The Notice of Appeal seeks orders for “full payment of his entitlement. Dismissal of trustees. Full financial independence”. He also seeks costs. The Notice of Appeal asserts at least 22 grounds of appeal on which these orders are sought. These grounds are headed “vexacious [sic]”, “integrity”, “misrepresentation”, “illegal”, “contradictory”, “validity”, “liberty”, “malpractice”, “misleading”, “unreasonable”, “non disclosure”, “incredible”, “liberty to apply”, “risk”, “land”, “title; christopher buckland brooks”, “respect”, “conflict”, “safety”, “loss of income”, “equality”, “unacceptable”, “prejudice”, “necessity”, “false allegations, privacy”, “unfair; costs”, “consequences”, and “influence”.

Ratio Decidendi

Legal Principle Established

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