Buckeridge v Buckeridge & Buckeridge
[2016] WASC 163
•27 MAY 2016
BUCKERIDGE -v- BUCKERIDGE & BUCKERIDGE [2016] WASC 163
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 163 | |
| 27/05/2016 | |||
| Case No: | CIV:1960/2015 | 12 MAY 2016 | |
| Coram: | MASTER SANDERSON | 12/05/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted | ||
| B | |||
| PDF Version |
| Parties: | LISE FRANCES BUCKERIDGE SAMUEL CONRAD BUCKERIDGE & ANDREW BENJAMIN BUCKERIDGE as Executors of the Will of LEONARD WALTER BUCKERIDGE RACHEL JANE BUCKERIDGE ANDREW BENJAMIN BUCKERIDGE SAMUEL CONRAD BUCKERIDGE JOSHUA ANTONY BUCKERIDGE JULIAN THEODORE ROSSLYN AMBROSE SIOK PUAY KOH JUDITH CAROLINE LYON ESPERANCE JOY CATHERINE STEPHEN ALBA MAY STEPHEN by her guardian ad litem DR JENNY HUNT ANDREW BOON SAN TEO in his capacity as trustee of THE BUCKERIDGE FAMILY TESTAMENTARY TRUST SAMUEL CONRAD BUCKERIDGE in his capacity as trustee of THE BUCKERIDGE FAMILY TESTAMENTARY TRUST SAMUEL CONRAD BUCKERIDGE, JULIAN THEODORE ROSSLYN AMBROSE & ANDREW BOON SAN TEO in their capacity as trustees of THE BUCKERIDGE GRANDCHILDREN TRUST SAMUEL CONRAD BUCKERIDGE & ANDREW BOON SAN TEO in their capacity as trustees of THE SAMUEL BUCKERIDGE TRUST ANDREW BENJAMIN BUCKERIDGE & ANDREW BOON SAN TEO in their capacity as trustees of THE ANDREW BUCKERIDGE TRUST SIOK PUAY KOH & ANDREW BOON SAN TEO in their capacity as trustees of THE KOH FAMILY TESTAMENTARY TRUST ANNA CELESTE BUCKERIDGE ESTHER LARA BUCKERIDGE HUAN CHE LIN (DENISE) BUCKERIDGE ALICIA BEATRICE BUCKERIDGE THOMAS AMBROSE by his guardian ad litem JULIAN THEODORE ROSSLYN AMBROSE ORSON LEONARD ROSSYLN AMBROSE by his guardian ad litem JULIAN THEODORE ROSSLYN AMBROSE |
Catchwords: | Family Provision Act 1972 (WA) Application for extension of time to bring proceedings Turns on own facts |
Legislation: | Family Provision Act 1972 (WA) |
Case References: | Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 Clayton v Aust (1993) 9 WAR 364 Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 Re Sherborne Estate; Vanvalen v Neaves [2005] NSWSC 593 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SAMUEL CONRAD BUCKERIDGE & ANDREW BENJAMIN BUCKERIDGE as Executors of the Will of LEONARD WALTER BUCKERIDGE
First Defendants
RACHEL JANE BUCKERIDGE
Second Defendant
ANDREW BENJAMIN BUCKERIDGE
Third Defendant
SAMUEL CONRAD BUCKERIDGE
Fourth Defendant
JOSHUA ANTONY BUCKERIDGE
Fifth Defendant
JULIAN THEODORE ROSSLYN AMBROSE
Sixth Defendant
SIOK PUAY KOH
Seventh Defendant
JUDITH CAROLINE LYON
Eighth Defendant
ESPERANCE JOY CATHERINE STEPHEN
Ninth Defendant
ALBA MAY STEPHEN by her guardian ad litem DR JENNY HUNT
Tenth Defendant
ANDREW BOON SAN TEO in his capacity as trustee of THE BUCKERIDGE FAMILY TESTAMENTARY TRUST
Eleventh Defendant
SAMUEL CONRAD BUCKERIDGE in his capacity as trustee of THE BUCKERIDGE FAMILY TESTAMENTARY TRUST
Twelfth Defendant
SAMUEL CONRAD BUCKERIDGE, JULIAN THEODORE ROSSLYN AMBROSE & ANDREW BOON SAN TEO in their capacity as trustees of THE BUCKERIDGE GRANDCHILDREN TRUST
Thirteenth Defendants
SAMUEL CONRAD BUCKERIDGE & ANDREW BOON SAN TEO in their capacity as trustees of THE SAMUEL BUCKERIDGE TRUST
Fourteenth Defendants
ANDREW BENJAMIN BUCKERIDGE & ANDREW BOON SAN TEO in their capacity as trustees of THE ANDREW BUCKERIDGE TRUST
Fifteenth Defendants
SIOK PUAY KOH & ANDREW BOON SAN TEO in their capacity as trustees of THE KOH FAMILY TESTAMENTARY TRUST
Sixteenth Defendants
ANNA CELESTE BUCKERIDGE
Seventeenth Defendant
ESTHER LARA BUCKERIDGE
Eighteenth Defendant
HUAN CHE LIN (DENISE) BUCKERIDGE
Nineteenth Defendant
ALICIA BEATRICE BUCKERIDGE
Twentieth Defendant
THOMAS AMBROSE by his guardian ad litem JULIAN THEODORE ROSSLYN AMBROSE
Twenty-first Defendant
ORSON LEONARD ROSSYLN AMBROSE by his guardian ad litem JULIAN THEODORE ROSSLYN AMBROSE
Twenty-second Defendant
Catchwords:
Family Provision Act 1972 (WA) - Application for extension of time to bring proceedings - Turns on own facts
Legislation:
Family Provision Act 1972 (WA)
Result:
Leave granted
Category: B
Representation:
Counsel:
Plaintiff : Mr D P Bristol
First Defendants : Ms W F Gillan
Second Defendant : Ms E A Croft
Third Defendant : Mr T M Retallack
Fourth Defendant : Mr T M Retallack
Fifth Defendant : No appearance
Sixth Defendant : Mr M N Solomon SC
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : Dr J J Hockley
Tenth Defendant : Dr J J Hockley
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendants : No appearance
Fourteenth Defendants : No appearance
Fifteenth Defendants : No appearance
Sixteenth Defendants : No appearance
Seventeenth Defendant : No appearance
Eighteenth Defendant : No appearance
Nineteenth Defendant : Mr T M Retallack
Twentieth Defendant : Mr T M Retallack
Twenty-first Defendant : No appearance
Twenty-second Defendant : No appearance
Solicitors:
Plaintiff : Rowe Bristol Lawyers as agents for McLachlan Thorpe Partners
First Defendants : Kershaw Legal
Second Defendant : Kott Gunning
Third Defendant : Culshaw Miller
Fourth Defendant : Culshaw Miller
Fifth Defendant : No appearance
Sixth Defendant : Murcia Pestell Hillard
Seventh Defendant : No appearance
Eighth Defendant : No appearance
Ninth Defendant : Wojtowicz Kelly Legal
Tenth Defendant : Wojtowicz Kelly Legal
Eleventh Defendant : No appearance
Twelfth Defendant : No appearance
Thirteenth Defendants : No appearance
Fourteenth Defendants : No appearance
Fifteenth Defendants : No appearance
Sixteenth Defendants : No appearance
Seventeenth Defendant : No appearance
Eighteenth Defendant : No appearance
Nineteenth Defendant : Culshaw Miller
Twentieth Defendant : Culshaw Miller
Twenty-first Defendant : No appearance
Twenty-second Defendant : No appearance
Case(s) referred to in judgment(s):
Bowditch v NSW Trustee & Guardian [2012] NSWSC 275
Clayton v Aust (1993) 9 WAR 364
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177
Re Sherborne Estate; Vanvalen v Neaves [2005] NSWSC 593
1 MASTER SANDERSON: By notice of motion filed 18 December 2015 the ninth and tenth defendants applied for leave to bring an application out of time under s 6 of the Family Provision Act 1972 (WA). It is to be noted the ninth and tenth defendants were parties to these proceedings because of the possibility their interest in the estate of the late Leonard Walter Buckeridge might be affected by the plaintiff's application. At the conclusion of the hearing I granted the extension of time as sought and indicated I would publish reasons for my decision. These are those reasons.
2 This action relates to the estate of the deceased which has an estimated value for probate purposes of $2.5 billion. The deceased's will made the ninth and tenth defendants specified beneficiaries of The Buckeridge Grandchildren Trust (the BGC Trust) and two of the five specified beneficiaries of The Buckeridge Family Testamentary Trust (the BFT Trust). The substance of these trusts are a percentage of the shares of the estate's main asset being shares in the BGC Group. As matters stand at present the ninth and tenth defendants are each entitled to 3.625% of the shares of the BGC Group which will be held in trust for them. The estimated probate value of each of the ninth and tenth defendants' interests is just over $90 million.
3 The testamentary trusts have wide discretionary terms and the ninth and tenth defendants say it is arguable the will does not make adequate provision for them because of the way the trusts are structured. I will come back to this issue later in these reasons. But it is worth noting the ninth and tenth defendants do not say they are entitled to more from the estate. Rather they argue the way in which their entitlement is structured should be altered pursuant to the powers contained in the Act.
4 Under s 7(2)(a) of the Act an application must be made within six months of the grant of probate. However, s 7(2)(b) allows the court to extend time if it 'is satisfied that the justice of the case requires the applicant be given leave to file out of time'. It is at least arguable that pursuant to s 12(2) the ninth and tenth defendants would be entitled to make submissions as to their entitlement and seek an alteration of the terms of the will. However in this case the ninth and tenth defendants decided they should seek leave lest any question of limitation be raised at a later date. In determining the application I have borne in mind that even if it were to be refused it is arguable the ninth and tenth defendants could rely upon s 12(2).
5 The principles upon which an extension of time will be granted were not in dispute between the parties. Reliance was placed by both parties on the decision of the Full Court in Clayton v Aust (1993) 9 WAR 364. For the purposes of this application only two issues were raised. First and most importantly whether the ninth and tenth defendants might have a claim and secondly whether there was adequate explanation for the delay in bringing the claim.
6 The application was opposed by the first defendants. Although they are the executors of the estate and might be expected to take a neutral position they took the view certain matters should be drawn to the court's attention. In my view that was entirely proper.
7 As I have mentioned the ninth and tenth defendants are the grandchildren of the deceased. As such their right to claim arises from s 7(1)(d)(i). It is for the claimant grandchild to establish he or she 'was being maintained wholly or partly by the deceased immediately before the deceased’s death'. It was the position of the first defendants that the evidence did not disclose the ninth and tenth defendants were being maintained by the deceased and that therefore no leave ought be given.
8 It is worth looking closely at what was actually said about the relevance of the strength or otherwise of an applicant's case when applying for an extension of time. In Clayton v Aust the judgment of the court was delivered by Malcolm CJ with whom Rowland and Franklyn JJ agreed. At first instance before the master it was argued the applicant did not have an arguable case on the merits. The master concluded the case was in fact 'weak on the merits or barely arguable'. Malcolm CJ concluded the master had asked himself the right question. He said (368):
In Re Dennis [1981] 2 All ER 140 at 145 Browne-Wilkinson J concluded that, among other things, an applicant had to show that he had an arguable case, namely:
'... a case fit to go to trial. The test being similar to that adopted when considering whether a defendant on a summary judgment application ought to have leave to defend in proceedings for summary judgment.'
In my opinion, the learned Master should have held that the appellant had made out an arguable case. That is not to say that it was case which had to be categorised as strong or weak. It was enough that it was arguable (370).
10 It necessarily follows from what Malcolm CJ had to say that if a case is not arguable then none of the other criteria generally considered in an application for an extension of time arise. What would be the point of granting leave if it was inevitable the case would fail? That is the threshold the first defendants in this case set themselves - they maintained the ninth and tenth defendants position was not arguable.
11 Guidelines for considering a grandchild's claim for provision from an estate were outlined by Hallen AsJ in Bowditch v NSW Trustee & Guardian [2012] NSWSC 275. His Honour said:
In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:
(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased’s testamentary recognition.
(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.
(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.
(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.
(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.
(f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents [113].
12 Further, counsel for the ninth and tenth defendants conceded in his written submissions (par 18, 16 March 2016) that there was a general presumption against a grandchild claiming further provision from the estate of a grandparent. He pointed out however that presumption is not absolute and where there are particular facts and circumstances that demonstrate that a grandchild is dependent on a deceased grandparent and that adequate provision has not been provided then a claim is available. To support this proposition he relied on a number of authorities including Re Sherborne Estate; Vanvalen v Neaves [2005] NSWSC 593.
13 In considering whether the requirements of the subsection might be satisfied three things are to be borne in mind. First, it is not necessary the deceased was wholly maintaining the claimants prior to his death. It is enough that he was 'partly' maintaining the claimants. Second, it was not necessary that he should be directly maintaining the claimants. In this case it is clear that what the deceased provided to the ninth and tenth defendants came via their mother who is the second defendant in these proceedings and the daughter of the deceased. Finally the question is one of fact and 'is not to be determined upon theoretical considerations': see Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177, 189.
14 The application is supported inter alia by an affidavit of the second defendant sworn 16 March 2016. The affidavit is lengthy and I need not go through it in detail. What the second defendant does say is that the ninth and tenth defendants are entirely financially dependent upon her. Between 1980 and 1999 she was substantially dependent upon her father and from 1999 until his death entirely dependent upon him. In my view that is enough. It is arguable the ninth and tenth defendants were at least partially dependent upon the deceased.
15 In addition to that the deceased provided a home in Vaucluse in which the second, ninth and tenth defendants resided. (It is clear the ninth and tenth defendants come and go from the Vaucluse property - as is the want of teenagers. But it seems clear both would regard the property as their home.) The second defendant says that the property was provided to her by her father. In fact it is owned by a company called Bocce Pty Ltd and that company was not directly owned or, it would seem, directly controlled by the deceased. Nonetheless the evidence of the second defendant in pars 21 - 35 of her affidavit suggests the ultimate control of Bocce rested with the deceased. As a consequence it was he who provided the property to the second, ninth and tenth defendants and they were (arguably) maintained by him.
16 Turning then to the delay that is explained in an affidavit of Aidan Marcellus Kelly sworn in February 2016. Essentially Mr Kelly who is the solicitor for the ninth and tenth defendants says before offering advice to his clients he needed to obtain and assess further information. Given the size and nature of this estate that is hardly surprising. In my view the delay is adequately explained. Furthermore, there was no prejudice likely to be suffered by any party as a consequence of granting this extension of time.
17 For these reasons I determined the extension of time ought be granted. I ordered that the costs of the application be reserved.
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