Brooks v Young

Case [2017] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

BROOKS & ANOR v YOUNG & ORS

[2017] SASC 162

Judgment of The Honourable Justice Stanley

14 November 2017

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS

SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - APPLICATION TO BE BEFORE FINAL DISTRIBUTION

Application by the defendants for summary judgment or dismissal of proceedings.

On 23 February 2015, probate of the deceased’s will was granted to the first defendant and her son, the second defendant.  Pursuant to the will they were appointed as his executors and trustees. 

On 17 August 2015, the plaintiffs issued proceedings pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA). The proceedings were served on the executors’ solicitors on 31 August 2015, eight days after the expiration of the limitation period prescribed by s 8(1) of the Act. On 11 July 2016, the plaintiffs filed an interlocutory application seeking an extension of time to bring their application and on 28 November 2016, the plaintiffs filed a statement of claim alleging that the first defendant is liable to the plaintiffs for provision under the Act or that the defendants, as executors, are liable to account, either to the estate or the plaintiffs, for breach of fiduciary duty for distributing the estate before the expiry of the limitation period under the Act.

Held: The plaintiffs’ claim is not reasonably arguable and the defendants are entitled to summary judgment.  Action dismissed.

1.  It is not unlawful for an executor to administer an estate prior to the prescribed limitation period unless they are on notice of a claim.  In this case the majority assets were distributed within the limitation period when the executors were not on notice of a claim.

2.  As a result the plaintiffs require an extension of time to issue the proceedings.  The Court can only grant an extension of time prior to the final distribution of the estate and, if the estate has been completely distributed, there is no power to grant such extension.

3. Australian law does not recognise any duty not to distribute estate assets within the limitation period prescribed by s 8. Nor were the executors obliged to inform the plaintiffs of their right to make a claim for provision under the Act.

4. “Disturbed” in s 8(5) of the Act means not to be interfered with at all. Accordingly, the plaintiffs cannot obtain an order for provision greater than the undistributed assets of the estate which the defendants are, and at all relevant times have been, prepared to distribute to them.

Inheritance (Family Provision) Act 1972 (SA) s 7, s 8, s 14; Supreme Court Civil Rules 2006 (SA) r 232, referred to.
Spencer v Commonwealth of Australia (2010) 241 CLR 181; Davies v Minister for Urban Development and Planning (2011) 109 SASR 518;

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AGLC
Brooks v Young [2017] SASC 162
Case
[2017] SASC 162
Decision Date

CaseChat Overview and Summary

The case of Brooks v Young involves a legal dispute where Rosemary, acting as a beneficiary of the deceased's estate, seeks summary judgment or dismissal of the proceedings on the grounds that the plaintiffs' claims lack a reasonable cause of action or basis. The Supreme Court of South Australia is tasked with deciding this application under the Supreme Court Civil Rules 2006 (SA). Rosemary argues that the proceedings are futile because they were not served on the executors within the prescribed limitation period, and the majority of the estate has already been distributed. She contends that the plaintiffs cannot obtain relief under the Act or in equity greater than the specific bequests made in their favor under the will, which the defendants are prepared to distribute. Consequently, any loss suffered by the plaintiffs is attributed to their failure to bring the proceedings within the required time frame.

The primary legal issue before the court is whether Rosemary can satisfy the Court that the plaintiffs' claims have no reasonable basis, thereby justifying the grant of summary judgment under Rule 232 of the Supreme Court Civil Rules 2006 (SA). This rule requires an assessment of whether there is a reasonable basis for the plaintiffs' claims to succeed, assuming the facts alleged by the plaintiffs are proven. The court must carefully balance the interests of justice against the desire for efficiency and expedition in its decision-making process. Rosemary's application is grounded in Rule 232 or, alternatively, Rule 193 of the Supreme Court Civil Rules 2006 (SA). However, since the court is prepared to make an order under Rule 232, there is no need to delve into the differences between the two rules.

The court's reasoning involves a detailed examination of the relevant facts and the statutory provisions governing the administration of estates and the timing of applications for family provision. It is noted that there is no dispute over the facts, which are thoroughly documented in the affidavits filed in the case. The court considers Rosemary's argument that the plaintiffs' claims are futile due to the delay in filing the proceedings and the distribution of the majority of the estate. Given the circumstances, the court is satisfied that there is no reasonable basis for the plaintiffs' claims to succeed, and therefore, the application for summary judgment is granted.

The final orders of the court include granting Rosemary's application for summary judgment and dismissing the plaintiffs' claims. This decision is based on the conclusion that the plaintiffs' claims have no reasonable basis and are, therefore, futile. The court's decision underscores the importance of timely action in legal proceedings and the limitations on obtaining relief once the majority of an estate has been distributed.

Orders

Orders of the court

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Background

Background to the litigation

Rule 232 of the Supreme Court Civil Rules 2006 (SA) (SCR) empowers the Court to grant summary judgment. In order to succeed, Rosemary must satisfy the Court that the plaintiffs’ claims have no reasonable basis.[1] As the plurality of the High Court emphasised in Spencer v Commonwealth of Australia,[2] which considered a provision not materially different from SCR 232, analysis of such provisions should concentrate on the express words of the provision. Those words emphasise a test of reasonableness in determining the prospects of success of a plaintiff’s claim. For the Court to dismiss the plaintiffs’ claims before trial, it must be satisfied that there is no reasonable basis to find that the claim will succeed on the assumption that the facts alleged by the plaintiffs are proved. The power must be exercised with great care and the interests of justice are not to be sacrificed to efficiency and expedition.[3][1] SCR 232. Rosemary has brought this application pursuant to SCR 232 or, in the alternative, pursuant to SCR 193. As I am prepared to make an order pursuant to SCR 232, it is unnecessary to consider the differences in operation, if any, between the rules.[2] [2010] HCA 28, (2010) 241 CLR 181.[3] Davies v Minister for Urban Development and Planning [2011] SASC 87, (2011) 109 SASR 518 at 528-532; Bradman v Allens Arthur Robinson [2009] SASC 80, (2009) 103 SASR 438 at 444-446 subsequently approved on appeal at (2010) 107 SASR 1 at 9-11; Spencer v Commonwealth [2010] HCA 28, (2010) 241 CLR 118. Background There is no issue as to the relevant facts which are set out in the affidavits filed in this matter. On Sunday 5 October 2014, all of the deceased’s children attended at Raymond’s house. On that occasion, Rosemary informed her siblings that a solicitor, Mr Kudra, had prepared and was holding a will for the deceased and that he would attend to the administration of the deceased’s estate. Rosemary said that she gave each of her siblings Mr Kudra’s business card and said that they could contact him if they wanted any information. Equally, she sought and obtained their contact details to provide to Mr Kudra, which she did in due course. Through Mr Kudra, Rosemary and Robert applied for a grant of probate which was issued to them by the Registrar of Probates of this Court on 23 February 2015. On 8 April 2015, Mr Kudra wrote to Raymond at his PO Box address providing him with a copy of the grant of probate with the deceased’s last will. The letter advised that the executors were in a position to distribute the estate and for that purpose he requested Raymond’s bank account details to deposit his legacy of $30,000.00. From that date, Raymond was on notice of the terms of the will and the date probate was granted. Trevor does not suggest he was in a different position. After the letter was sent to Raymond, pursuant to the terms of the deceased’s will, the executors made the following distributions from the deceased’s estate: The effect of the above distributions was that, after allowing for funeral expenses of $11,627.16, the only asset being held by the deceased’s estate was the sum of $60,000.00 to be distributed equally between the plaintiffs pursuant to clause 2(a) and 2(c) of the deceased’s will.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 12 December 2016, Rosemary, in her capacity as a beneficiary of the deceased’s estate, filed an application seeking summary judgment or in the alternative, an order for the dismissal of the proceedings on the ground that the pleadings disclose no reasonable cause of action or reasonable basis for the claim. It is that application that I must decide.Summary judgment Rosemary, in her capacity as a beneficiary of the deceased’s estate, seeks summary judgment on the basis that the originating proceedings were not served on the executors within the prescribed limitation period and the majority estate has been distributed. She submits that, in these circumstances, the proceedings are futile as it is not open to the plaintiffs to obtain relief under the Act or in equity greater than the specific bequests made in their favour under the will which the defendants are ready to distribute. Consequently, any loss suffered by the plaintiffs is the result solely of their failure to bring the proceedings within time. Rule 232 of the Supreme Court Civil Rules 2006 (SA) (SCR) empowers the Court to grant summary judgment. In order to succeed, Rosemary must satisfy the Court that the plaintiffs’ claims have no reasonable basis.[1] As the plurality of the High Court emphasised in Spencer v Commonwealth of Australia,[2] which considered a provision not materially different from SCR 232, analysis of such provisions should concentrate on the express words of the provision. Those words emphasise a test of reasonableness in determining the prospects of success of a plaintiff’s claim. For the Court to dismiss the plaintiffs’ claims before trial, it must be satisfied that there is no reasonable basis to find that the claim will succeed on the assumption that the facts alleged by the plaintiffs are proved. The power must be exercised with great care and the interests of justice are not to be sacrificed to efficiency and expedition.[3][1] SCR 232. Rosemary has brought this application pursuant to SCR 232 or, in the alternative, pursuant to SCR 193. As I am prepared to make an order pursuant to SCR 232, it is unnecessary to consider the differences in operation, if any, between the rules.[2] [2010] HCA 28, (2010) 241 CLR 181.[3] Davies v Minister for Urban Development and Planning [2011] SASC 87, (2011) 109 SASR 518 at 528-532; Bradman v Allens Arthur Robinson [2009] SASC 80, (2009) 103 SASR 438 at 444-446 subsequently approved on appeal at (2010) 107 SASR 1 at 9-11; Spencer v Commonwealth [2010] HCA 28, (2010) 241 CLR 118. Background There is no issue as to the relevant facts which are set out in the affidavits filed in this matter. On Sunday 5 October 2014, all of the deceased’s children attended at Raymond’s house. On that occasion, Rosemary informed her siblings that a solicitor, Mr Kudra, had prepared and was holding a will for the deceased and that he would attend to the administration of the deceased’s estate. Rosemary said that she gave each of her siblings Mr Kudra’s business card and said that they could contact him if they wanted any information. Equally, she sought and obtained their contact details to provide to Mr Kudra, which she did in due course.

Ratio Decidendi

Legal Principle Established

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