Cameron v Cameron - [2008] SASC 327

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
CAMERON & ANOR v CAMERON & ANOR
[2008] SASC 327
Reasons of Judge Lunn a Master of the Supreme Court
25 November 2008
PROCEDURE
Mareva order against defendant - action for provision under Inheritance (Family Provision) Act 1973 - order made and effect given to it - plaintiffs seek to set aside the order on ground that executors did not disclose to them a substantial asset of the estate and to be awarded greater provision - no order, except costs, sought against the executors - held no Mareva order to be made as it would not secure any judgment in this action but only a possible future claim.

CAMERON & ANOR v CAMERON & ANOR
[2008] SASC 327
Reasons on plaintiffs’ application for a Mareva order against Rosslyn Cameron.

JUDGE LUNN: The plaintiffs are the children of John Ramsay Cameron (“the deceased”) who died on 11 July 2003. On 29 May 2006 probate of the deceased’s will was granted to his brothers, Alan Cameron (“Alan”) and Duncan Leslie Cameron. On 26 June 2006 the plaintiffs instituted this action seeking that the will of the deceased be varied in their favour under the provisions of the Inheritance (Family Provision) Act (“the Act”). On 23 October 2006 I made an order with the concurrence of all the parties for provision to be made for the plaintiffs out of the estate of the deceased. Effect was given to that order.
Subsequently the plaintiffs applied that this order be set aside. They alleged that the defendants had not disclosed to them an asset of the estate being the entitlement of the deceased to compensation of almost $300,000. Pursuant to directions which I gave, the plaintiffs filed a further statement of claim on 15 April 2008 (“the statement of claim”) to plead their present case. The relief sought in that statement is as follows:
1An order setting aside paragraph 4 of the Consent Order dated 23 October 2006.
2An extension of time (to the extent necessary) within which to issue a claim against the estate of the deceased pursuant to section 7 of The Inheritance (Family Provision) Act 1972.
3An order for further provision out of the estate of the deceased, such provision to be funded jointly and severally by the defendants.
4In the alternative, a declaration that the further sum of $296,797.06 was not previously subject to the Consent Order, and an order for further provision to the plaintiffs out of that sum.
5Interest.
6That the defendants personally pay the costs of the plaintiffs on an indemnity basis.
The defendants have filed a defence in which they do not concede any of the relief now sought by the plaintiffs.
Alan had an entitlement to about $126,367 in the Statewide Superannuation Trust (“the Trust”). Under the provisions of the Trust he nominated his wife, Rosslyn Beryl Cameron (“Rosslyn”), as the beneficiary of his entitlement under the Trust in the event of his death. Alan died on 1 September 2008. On 13 October 2008 the Trust paid to Rosslyn Alan’s entitlement under the Trust of $126,367.
On 4 November 2008 Rosslyn obtained probate over the estate of Alan. On 11 November 2008 I substituted Rosslyn for Alan as the first defendant in this action.
By a notice for specific directions taken out on 27 October 2008 the plaintiffs sought an order against Rosslyn that she be restrained from dealing with the funds which she had received from the Trust pending the outcome of these proceedings. It was accepted that this application was also pursued against her in her new capacity as the substituted first defendant in the action.
Counsel for the defendants and Rosslyn made a single submission that there was no power for the Court to make such an order. The point made would also apply if Alan had survived and was still the first defendant. Thus there is no need to go into the complications caused by Alan’s death and the means by which Rosslyn obtained the money from the Trust.
The plaintiffs seek a common law Mareva type order. As the action is still governed by the 1987 Rules, 6R 247 is not applicable, but even if it was the result would probably be the same.
The authorities are clear that a Mareva order is only to be made to prevent a risk that if the plaintiffs succeed they would not be able to have their judgment satisfied: Biscoe “Mareva and Anton Piller Orders” pp 173-180 and the cases cited there. Here the plaintiffs only seek the relief as set out above in the quotation from their statement of claim and do not seek any judgment in monetary terms against the defendants except for costs. Any judgment in the terms sought will be satisfied, apart from costs, upon the setting aside of the earlier order and the making a new order for greater provision for the plaintiffs out of the estate of the deceased. It was not suggested that the Mareva order would be justified merely on the defendants’ potential liability for costs.
The crux of the plaintiffs’ complaint is that if they are awarded greater provision out of the deceased’s estate the executors may not give effect to these varied terms of the deceased’s will. However, while the executors have almost fully distributed the estate it may be that they will voluntarily return sufficient of the distributions they have made to the estate to enable proper distributions to be made to the plaintiffs. It may be that the defendants will claim there is no liability upon them to make good the distributions which they have already made. The plaintiffs fear that if the defendants are required personally to reimburse to the estate the distributions they have made so that the plaintiffs’ entitlement can be satisfied, a judgment for this will not be able to be satisfied because the defendants will have disposed of their assets in the meantime.
There is no absolute bar to the defendants (being the executors for the time being) having distributed the estate: Packo v Packo (1989) 17 NSWLR 316; re Gough (1973) 5 SASR 559. As Zelling J said in re Gough as 564-5, if the executors have acted improperly the remedy would be an action for devastavit against them in the administration of the estate. However, such an application cannot be made by the plaintiffs unless and until the Court has further varied the terms of the will and their further entitlements remain unsatisfied. Such a claim would probably be brought in a fresh action and it is only in that action that the plaintiffs would have a basis for a Mareva order.
All the cases on Mareva orders of which I am aware go to preserving the plaintiffs’ ability to execute successfully on a judgment for the relief claimed in the action in which a Mareva order is made. I am not aware of any case where such an order has been made to preserve the plaintiffs’ rights to enforce a judgment in a subsequent action which the plaintiffs might be able to bring if they are successful in the present action.
Counsel for the plaintiffs made some general reference to reliance on tracing moneys distributed from the deceased’s estate to Alan emanating from the compensation money into the moneys which Rosslyn had received from the Trust. It is not clear to me that this is established by the evidence. There is no claim pleaded in this action based on such tracing. In a claim under the Act the Court cannot use tracing remedies to give a judgment against a beneficiary who has received a distribution: re Lowe (deceased) [1964] QWN 37.
I have today made the following order on the plaintiffs’ notice of 27 October 2008:
1Application for injunction dismissed.
2 The plaintiffs are to pay to the defendants and Rosslyn Cameron their costs of the application as agreed or taxed.
3Fit for counsel.