Craker v Craker - [2018] SASC 10

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Civil)
CRAKER v CRAKER & ORS
[2018] SASC 10
Judgment of The Honourable Justice Stanley
9 February 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL
SUCCESSION - MAKING OF A WILL - STATUTORY POWER OF RECTIFICATION
Interlocutory application by the interested party seeking dismissal of the proceedings and that the plaintiff pay its costs.
The plaintiff brought an application seeking orders for rectification of the testator’s will pursuant to s 25AA of the Wills Act 1936 (SA), and an order that the parties’ costs of and incidental to the action be paid, on an indemnity basis, by the solicitors who drafted the will. The solicitors were joined to the action as an interested party following a mediation which resulted in an agreement being reached between the plaintiff and the defendants. A Judge of this Court made an order pursuant to rule 257 of the Supreme Court Civil Rules 2006 (SA) (SCR) approving the agreement. Shortly before the trial was to be heard, the interlocutory application was filed.
The solicitors submit the agreement resolves and disposes of all issues in the action; that it distributes the estate assets irrespective of any decision which may be made regarding rectification of the will; that it resolves any or all of the potential competing claims between the plaintiff and defendants, including under the Inheritance (Family Provision) Act 1972 (SA); and, that the action therefore has no utility and is an abuse of process. The plaintiff opposes the application.
Held: Application dismissed (at [86]).
1. The affidavit in support of the application discloses a reasonable cause of action. The solicitors have been joined as an interested party so that orders can be sought against them for the costs of the rectification proceedings. The practice is an application of the power of the Court to award costs against non-parties. There is no requirement for a claim or cause of action against the non-parties in order to enliven the power to award costs against them. This is not a negligence claim brought against the solicitors in the guise of a rectification action (at [37] to [44]).
2. The proceedings are not vexatious nor an abuse of process. The agreement did not effect a settlement of the claim for rectification. Further, the pursuit of the rectification claim and the costs claim are not vexatious or an abuse of process (at [46]).
3. There is no entitlement to summary judgment. First, the solicitors lack standing to apply for summary judgment, and second, they cannot establish that there is no reasonable basis for the plaintiff’s claim (at [68]).
4. The issuing of a second summons after the agreement was made, does not constitute a procedural irregularity (at [85]).
5. There is no issue estoppel in this case as the order approving the agreement did not finally decide the question of whether the plaintiff is entitled to an order for rectification or costs against the solicitors. Nor is there any Anshun estoppel in this case (at [56] and [59]).
Wills Act 1936 (SA) s 25AA; Supreme Court Civil Rules 2006 (SA) r 12, r 89, r 117, r 193, r 232, r 257, referred to.
Williams v Spautz (1992) 174 CLR 509; Collins v Djunaedit [2016] SASCFC 48; Osborne v Smith (1960) 105 CLR 153; Estate Kouvakis [2014] NSWSC 786; Kerr v Kerr (No 2) [2016] SASC 24; Knight v FP Special Assets Ltd (1992) 174 CLR 178; Vestris v Cashman (1998) 72 SASR 449; Osborn v McDermott [1998] 3 VR 1; Scaffidi v Perpetual Trustees (Vic) Ltd (2011) 42 WAR 59; Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] Applicant Counsel 366; Walker v Geo H Medlicott & Son (a firm) [1999] 1 WLR 727, discussed.

CRAKER v CRAKER & ORS
[2018] SASC 10
Testamentary Causes Jurisdiction
STANLEY J.
Introduction

The plaintiff has brought an application pursuant to s 25AA of the Wills Act 1936 (SA) (the Act), supported by her affidavit of 9 August 2016, seeking rectification of the will of the late Michael David Craker (the testator) and an order that the parties’ costs of and incidental to the action be paid, on an indemnity basis, by the solicitors who drafted the will (the solicitors).
The testator made his last will on 22 December 2011. The testator died on 6 July 2013. The plaintiff commenced proceedings for rectification of the will in 2016.
The rectification proceedings commenced in August 2016. The solicitors were joined to the action as an interested party following a mediation in February 2017, which resulted in an agreement being reached between the plaintiff and the defendants. The agreement was described as a Heads of Agreement (the agreement). That agreement was subject to approval by the Court as one of the defendants, Eve Susette Craker (Eve), was under a disability, being a minor, and the Court had appointed a litigation guardian to act in her interests.
On 31 August 2017 Judge Dart made an order pursuant to rule 257 of the Supreme Court Civil Rules 2006 (SA) (SCR) approving the agreement made between the plaintiff and the defendants.
Shortly before the trial was to be heard an interlocutory application was made by the solicitors seeking orders that the proceedings be dismissed and that the plaintiff pay the costs of the solicitors. The solicitors submit that the order made by Judge Dart approving the agreement resolves and disposes of all the issues in the action commenced by the plaintiff. The solicitors submit that the agreement distributes the assets of the estate of the testator irrespective of any decision which this Court might make regarding rectification of the will. They submit that the agreement resolves all or any of the potential competing claims between the plaintiff and the defendants, including under the Inheritance (Family Provision) Act 1972 (SA) (Family Provision Act). Accordingly, the solicitors submit the plaintiff’s action has no utility, as whatever decision the Court may make in relation to the matter is irrelevant, as it will not affect the manner in which the parties to the agreement have determined that the estate should be administered. It follows that the maintenance of the proceedings is an abuse of the process of the Court. On that basis the solicitors submit the proceedings should be dismissed.
The interlocutory application was opposed by the plaintiff.
The agreement
Central to the solicitors’ application for dismissal of the proceedings is the agreement which is dated 15 February 2017. I set out its full terms:
The parties each agree to resolve all issues in the litigation as follows:-
1. In lieu of any entitlement under the will in the estate of Michael Craker (whether the will be rectified as alleged or not) and all other claims that may be raised against the estate including under the Inheritance Family Provision Act 1972:
(i) Joanne shall cause to be paid out of the AMP Life Insurance Policy Proceeds (referred to in clause 12 of the will) the sum of $70,000.00 inclusive of interest to each of David Craker, Sarah Craker-Stollznow and Samantha Craker on receipt of that sum by the estate.
(ii) Joanne shall cause to be paid out of the AMP Life Insurance Policy Proceedings the sum of $100,000.00 inclusive of interest to herself to be held on trust for Eve Suzette Craker until she reaches the age of eighteen (18).
2. Joanne shall pay out of her personal funds an amount of up to $35,000.00 in legal costs to the solicitors acting for David, Samantha and Sarah.
3. Joanne shall pay out of the personal funds reasonable costs incurred by the litigation guardian in respect of Eve Craker.
4. The Litigation guardian on behalf of Eve shall consent to the proposed rectification of the will and do all things necessary to facilitate that consent.
5. David, Sarah and Samantha shall not oppose the rectification of the will and take no further action in respect of the proceedings unless required by the Court.
6. Joanne shall be at liberty to recover all losses and costs incurred in relation to this matter against Heuzenroeder’s solicitors if so advised.
7. Joanne shall use her best endeavours to cause debts of the estate to be paid such that Eve shall be entitled on the rectification of the will to the interest in Lot 80 Wombat’s Rest being registered lease 2829342 being the ¼ interest held by the deceased.
8. Joanne shall use her best endeavours to expedite the rectification, the grant of probate and any other matter to facilitate these heads of agreement.
9. The litigation guardian consent is subject to the approval of compromise by the Court.
10. The parties shall do all things necessary to formalise this agreement whether by Deed or rule of Court but shall otherwise be binding on the parties regardless.
11.For the avoidance of doubt in the event that the will is not rectified the parties agree that clause 1 shall take effect and that Eve, Sarah, Samantha and David shall have no further entitlement under the Will and that any entitlement due to them under the will shall be payable to Joanne.
12. Nothing in this agreement shall prevent the Payment to David Craker of the proceeds of Child Endowment Policy No 50449776.N referred to in clause 13 of the will of the deceased.
13. Joanne shall, in the event that the Will is not rectified, use her best endeavours to compensate Eve/by way of payment to the Trust established in paragraph 1(i) for the loss of the interest in Lot 80 Wombat’s Rest being registered lease 2829342 being the ¼ interest held by the deceased at such value as shall be agreed or determined by a valuer appointed by the President of the Law Society of South Australia.
Basis of the application for dismissal
Mr Adams, counsel for the solicitors, submits that the Court has power to dismiss the proceedings pursuant to SCR 12, 117, 193 or 232.
He submits there is no pleaded claim or cause of action against the solicitors pursuant to which an order for costs, as sought by the plaintiff against them, could be made. As the claim for rectification has now been effectively settled, the proceedings lack utility as they leave nothing further by way of a cause of action for the Court to determine and should be dismissed. Further, he submits that the proceedings should be dismissed as an abuse of process either on the basis that by the agreement the action has been settled in full, or what is now being prosecuted, under the guise of a rectification application, is an action in negligence against the solicitors, which is unpleaded and unparticularised. That being so, the plaintiff is precluded from pursuing such a claim based entirely on the same facts as the settled action because the proceedings are res judicata or the plaintiff is estopped in accordance with the doctrines of issue estoppel or Anshun estoppel. In addition the solicitors submit that in circumstances where the agreement has settled the plaintiff’s action in full, it was procedurally irregular for her to issue a second summons in the action seeking new orders against the solicitors, where they had not been joined to the original proceedings, and without any cause of action being pleaded against them. Finally, the solicitors submit that the Court should grant summary judgment against the plaintiff as there is no evidence which would provide a basis upon which the Court would rectify the will in the manner sought by the plaintiff.
Basis of the claim for rectification
In the circumstances it is necessary to refer to the basis of the claim for rectification sought by the plaintiff.
The plaintiff seeks to rectify clauses 10, 11 and 12 of the testator’s last will. I set out those clauses.
10.I GIVE such interest as I may have at my death in the Registered Lease 2829342 on the property presently registered as Certificate of Title Register Book Volume 5226 Folio 212 (‘Wombat’s Rest’) to my said wife for her own use and benefit absolutely provided she shall survive me for the space of 28 days.
11.I GIVE such interest as I may have at my death in the Registered Lease 2829341 on the property presently registered as Certificate of Title Register Book Volume 5226 Folio 212 and such interest as I may have at my death in the house located on the said property (‘Wombat’s Rest Shack’) to my Trustees upon trust for my daughter Eve Susette Craker as shall survive me and attain the age of 18 for her own use and benefit absolutely.
12.     I GIVE the proceeds of my:
i.      AMP Flexible Lifetime Super (Policy Number 920006195),
ii.     AMP Whole of Life Insurance Plan (Policy Number S0497185 V; and
iii.    AMP Whole of Life Insurance Plan (Policy Number S0401794 J);
to my children DAVID JOHN CRAKER, SARAH ROSE CRAKER-STOLLZNOW, SAMANTHA JANE CRAKER and EVE SUSETTE CRAKER as shall survive me and attain the age of 25 years in equal shares as tenants in common for their own use and benefit absolutely.
The plaintiff seeks to delete the words “Registered Lease 2829342” from clause 10 and substitute the words “Registered Lease 2829341” in their place; delete the words “Registered Lease 2829341” from clause 11 and substitute the words “Registered Lease 2829342” in their place; and insert at the commencement of clause 12 the words: “Should my said wife predecease me or not so survive me for a period of twenty-eight (28) days”.
The principal basis of the claim for rectification is that the solicitor who took instructions from the testator for the preparation of the will confused his instructions in relation to the disposition of his proprietary interests in two properties located at “Wombat Rest” on the Murray River.
In order to understand the basis of the claim for rectification it is necessary to say something about the background to the claim for rectification as set out in the affidavit of the plaintiff in lieu of pleadings.
The plaintiff is the widow of the testator. The testator had three children from a previous marriage and one child from his marriage with the plaintiff. Eve, the infant defendant, is the child of the plaintiff and the testator.
The plaintiff and the testator met in 2000. The testator had recently been diagnosed with cancer for the second time. Their romantic relationship commenced in mid to late 2001. From 2000 until 2006 the testator was battling the symptoms of cancer. That required him to have lengthy periods of time away from work. However, in 2006 the testator underwent a stem cell transfer after which he went into remission for approximately four years. Eve was born on 25 June 2008.
Importantly, for the purposes of the rectification application, the testator had a proprietary interest in two properties at Wombat Rest being two shacks described as lease 341 and lease 342. Lease 341 is the registered lease 2829341. Lease 342 is the registered lease 2829342. The two shacks were next door to each other. Lease 342 had been registered to the testator’s parents and uncle and aunt. On 4 February 2002 the testator purchased the interest of his uncle in lease 342 for $11,250. On 31 October 2001 the testator purchased the interest in lease 341 for $91,500. From about 2001 to 2005 the testator and the plaintiff together renovated the shack on lease 341. While they were doing so they stayed at lease 342. The testator’s parents and aunt maintained their interest in lease 342.
In about mid-2011 the plaintiff and the testator decided to make new wills. They instructed Ms Ada Lester (De Duonni) of Heuzenroeders solicitors. They discussed the disposition of their assets. The plaintiff says that they agreed that the testator would leave his interest in lease 341 entirely to the plaintiff. It was further agreed that he would leave what he understood to be his one-quarter share of lease 342 to the plaintiff, to be held on trust for Eve until she turned 18 years old. The plaintiff says the testator gave Ms Lester instructions accordingly. Further, the plaintiff says that after discussion with Ms Lester concerning the position of the testator’s adult children, the testator gave instructions that, in the event of the plaintiff’s death, he would leave the proceeds of his superannuation and life insurance policies to his four children.
In short, the plaintiff’s claim for rectification is based on the contention that in drafting the testator’s will, Ms Lester confused the instructions she was given and drafted the will to effect gifts of the testator’s interest in lease 341 to the plaintiff to be held on trust for Eve until she turned 18, and the one-quarter interest in lease 342 to the plaintiff. This was the reverse of the instructions the testator gave to the solicitor. She also failed to condition the gifts of the proceeds of the superannuation and life insurance policies on the plaintiff not surviving the testator by 28 days.
It appears that the testator’s will went through a number of drafts before it was executed. The testator and the plaintiff met with Ms Lester for the purposes of giving instructions on at least two occasions before the testator executed his will. In addition, the testator met with Ms Lester at least once, on 17 August 2011, without the plaintiff being present.
The basis of the solicitors’ application
It is convenient to address the sources of the Court’s power to dismiss the plaintiff’s proceedings relied upon by the solicitors.
SCR 193
SCR 193 provides:
193—Court's power to dismiss proceedings
The Court may dismiss proceedings if—
(a)the pleadings disclose no reasonable cause of action; or
(b)the proceedings are frivolous, vexatious or an abuse of the process of the Court.
The solicitors submit that the Court should dismiss the proceedings in accordance with SCR 193(a) on the basis that the pleadings disclose no reasonable cause of action.
The test for whether pleadings disclose no reasonable cause of action has been framed in terms of the pleaded claim being obviously unsustainable.[1] The pleadings must be so manifestly faulty that they do not admit of argument.[2] The pleadings must be so bad that no legitimate amendment could cure the defects.[3]
[1]    Attorney-General of the Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274 at 277.
[2]    Wall v Bank of Victoria Ltd (1890) 16 VLR 2 at 4.
[3]    Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 496; Morton v Arbuckle [1918] VLR 657 at 661.
In this case of course, there are no pleadings as the claim has been brought on an affidavit in lieu of pleadings pursuant to SCR 96. Accordingly, the reference in SCR 193(a) to “pleadings” in this matter is taken to include the affidavit of the plaintiff in lieu of pleadings.
SCR 193(b) also empowers the Court to dismiss the proceedings if they are frivolous, vexatious or an abuse of process.
Abuse of process cannot be confined to “defined and closed categories”.[4] However, most cases of abuse of process will exhibit at least one of three characteristics:[5]
(1)the invoking of a court’s processes for an illegitimate or collateral purpose;
(2)the use of the court’s procedures in a manner which would be unjustifiably oppressive to a party; or
(3)the use of the court’s procedures in a manner which would bring the administration of justice into disrepute.
[4] Ridgeway v The Queen (1995) 184 CLR 19 at 74-75; Batistatos v Roads & Traffic Authority of New South Wales [2006] HCA 27 at [9], (2006) 226 CLR 256 at 265.
[5] Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91; Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 at 524; Williams v Spautz (1992) 174 CLR 509 at 526-527.

An illegitimate or collateral purpose is a purpose whereby proceedings are used as a means of obtaining some advantage for which those proceedings are not designed.[6] It is the use of the proceedings which must be examined and which may constitute an abuse of process.[7] The purposes which legal proceedings are designed to serve are the protection or vindication of particular rights or immunities, the maintenance or affection of particular legal relationships and the imposition of particular legal penalties, liabilities and obligations.[8] The pursuit of a legal remedy is not converted into an abuse of process merely by an unworthy or ulterior motive in doing so.[9]
[6]    Williams v Spautz (1992) 174 CLR 509 at 526-527.
[7]    Williams v Spautz (1992) 174 CLR 509 at 527-528.
[8]    Williams v Spautz (1992) 174 CLR 509 at 532-533.
[9]    Williams v Spautz (1992) 174 CLR 509 at 533-534.
The onus of proving an abuse in any given case rests upon the party alleging the abuse. It must show that the improper purpose is the predominant one. The onus is a heavy one.[10]
[10] Williams v Spautz (1992) 174 CLR 509 at 529.
SCR 117
SCR 117(1) empowers the Court to make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice. SCR 117(2)(e) provides that the Court may strike out a document or proceeding if the Court considers it frivolous, vexatious or an abuse of the process of the Court. There is an obvious overlap between SCR 117 and SCR 193.[11]
[11] JT Nominees Pty Ltd v Macks [2007] SASC 151 at [26], (2007) 97 SASR 471 at 477.
SCR 232
The solicitors alternatively seek an order for summary judgment pursuant to SCR 232. SCR 232 provides:
232—Summary judgment
(1) The Court may, on application by a party, give summary judgment for that party.
(2) Summary judgment may only be given if the Court is satisfied that—
(a)if the applicant is a plaintiff—there is no reasonable basis for defending the applicant's claim; or
(b)if the applicant is a defendant—there is no reasonable basis for the claim against the applicant.
Only a party to an action may apply for summary judgment.[12] The terms of SCR 232(2) make clear that in this context the reference to a “party” refers to a plaintiff or a defendant.
[12] SCR 232(1).
The application of SCR 232 was considered by the Full Court in Collins v Djunaedi where the Chief Justice, with whom Parker J and I agreed, said:[13]
[13] [2016] SASCFC 48 at [11]-[17].
In Ceneavenue Pty Ltd v Martin, Debelle J (Duggan and Anderson JJ agreeing) said of rule 232 of the Supreme Court Civil Rules 2006 (SCR 232), which is in identical terms:
A comparison of the test in r 25.04 with the test in r 232(2)(b) readily discloses that the burden to be discharged by the defendant on an application under para (b) is lighter than the burden that had to be discharged under r 25.04. The reasoning in General Steel is, therefore, no longer applicable. I respectfully agree with Bleby J that the barrier to summary judgment on an application by a defendant has been lowered: JT Nominees Pty Ltd v Macks (2007) 97 SASR 471 at [61].
While there can be no doubt that para (b) has significantly lightened the burden for a defendant seeking summary judgment, two questions nevertheless remain. The first is what is meant by the expression “no reasonable basis” for the claim against the defendant and the second is whether the test is materially different from the test of a real question to be tried … The test in r 232(2) requires the court first to identify the issues to be tried and then to assess whether the claim or defence has reasonable prospects of success. In the case of an application for summary judgment by a plaintiff against a defendant, it is doubtful, therefore, whether there is a material difference between that test and the former test as it had been expressed in Fancourt. That is because the question whether there is a real question to be tried denoted that the task for the court was to determine whether the issues at the trial are real or fanciful and have reasonable prospects of success.
The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. A prolonged argument might suggest that there is a reasonable basis for the claim or the defence. Comparison with the requirements in rules in other jurisdictions providing for summary judgment confirms these propositions.
The parties both referred to the matter of Spencer v Commonwealth of Australia, which was concerned with s 31A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), as the leading High Court decision on the application of summary judgment. Section 31A relevantly provides:
(1)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
In Spencer, French CJ and Gummow J said:
Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
Where an application under s 31A requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant. The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.
(citation omitted)
Hayne, Crennan, Kiefel and Bell JJ stated:
How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
(citation omitted)
In Proude v Visic & Ors (No 4), Blue J made the following observations on the similarities and differences between s 31A(2)(b) and SCR 232(2)(b):
Section 31A(2)(b) bears a similarity to Rule 232(2)(b). However, the Federal Court provision refers to “no reasonable prospect of successfully prosecuting the proceeding”, whereas this Court’s rule refers to “no reasonable basis” for the claim. The inquiry in the Federal Court is directed to the future and to an assessment of the prospect of success, whereas the provision in this Court is directed to the present and to the basis for the plaintiff’s claim. While there is no equivalent in this Court’s Rules to section 31A(3), the Full Court decided in Ceneavenue that it was not a pre-condition for obtaining summary judgment that a proceeding be demonstrated to be hopeless or bound to fail.
Blue J concluded that the determination of what is a reasonable basis for a claim will vary depending upon the nature and circumstances of the particular claim, bearing in mind the necessity to determine whether there is a reasonable basis for the claim in a summary way.
For my part I doubt that the ‘prospective’ and ‘present’ foci, of the FCA Act and DCR 232 respectively, will ever lead to different results. There cannot be a reasonable prospect of future success in prosecuting or defending a claim unless there is a presently existing reasonable basis upon which to prosecute or defend it. Nor can it be said that a claim or defence which has a reasonable basis does not have a reasonable prospect of success.
In the case of a summary judgment application, there is a reasonable basis for a claim, or a positively pleaded defence, when there is an evidential foundation for facts upon which arguable propositions of law would result in judgment for the plaintiff or the defendant as the case may be. In cases in which the defendant merely denies the claim, there must be reasonable grounds on which to contend that the plaintiff will not discharge its onus of proof or make good the propositions of law on which it relies. In the case of a SCR 232 application, the evidential basis or grounds must at least be pleaded.
[Footnotes omitted.]
In Spencer v The Commonwealth[14] and in Ceneavenue Pty Ltd v Martin[15] the High Court[16] and the Full Court approved the speech of Lord Hope of Craighead in Three Rivers District Council v Governor and Company of the Bank of England (No. 3),[17] who said, in respect of the analogous English provision:
The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, “… that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”
[14] [2010] HCA 28, (2010) 241 CLR 118.
[15] [2008] SASC 158, (2008) 106 SASR 1.
[16] French CJ and Gummow J with whom Hayne, Crennan, Kiefel, Bell and Heydon JJ agreed.
[17] [2003] 2 AC 1 at 260-261.
SCR 12
SCR 12(2)(a) provides that if a party commits a procedural irregularity in bringing or in the conduct of an action or proceeding the Court may, on its own initiative or on application by a party, dismiss the action or proceeding. “Procedural irregularity” is defined in SCR 4 to include:
(a)failure to comply with a procedural obligation (whether arising under these Rules, a Supplementary Rules or an order of the Court);
(b)unnecessary delay;
(c)prolixity in the statement of the party's case;
(d)the unnecessary, vexatious or otherwise improper commencement of, or an unnecessary, vexatious or otherwise improper step in, a proceeding;
(e)unreadiness to proceed with the hearing of a proceeding, or the taking of any other step in a proceeding, at the time fixed by or under these Rules;
Does the plaintiff’s affidavit disclose a reasonable cause of action?
The solicitors submit there is no pleaded claim or cause of action identified against them pursuant to which the orders sought against them might be made. They submit the settled action should not be permitted to proceed in the guise of a rectification action where, in truth, the claim against them is an unpleaded action in negligence.
I do not accept the submission of the solicitors that the plaintiff has no cause of action against them.
The plaintiff brings a claim for the statutory right of rectification pursuant to s 25AA of the Act. The cause of action is one in rem as opposed to one in personam. The plaintiff claims a remedy, that is conclusive against all the world, that determines the status or disposition of a thing, as distinct from a particular interest in it of a party to litigation.[18] Such an action is to be distinguished from an action which is in personam. An application for rectification, like all probate litigation, is “interest litigation” in the sense that, to commence or to be a party to proceedings relating to a particular estate, a person must be able to show that his or her rights will, or may, be affected by the outcome of the proceedings.[19] While SCR 38(4) requires persons whose interests may be directly and adversely affected by the terms of a judgment to be named as defendants to proceedings, that does not equate to a requirement that the cause of action be against such defendants. The plaintiff’s action, being in rem, is as much against the interested party as it is against the defendants, or for that matter, anyone. The action for rectification involves a concept of “parties” which is more expansive than ordinary civil proceedings. A person having an interest in the action may apply to become a party by intervening in the proceedings. But if such a person, with knowledge of the proceedings, stands by without applying to be joined, that person will be bound by the court’s determination of the proceedings.[20] As a result, the practice of the courts is to require notice of proceedings to be given to all interested parties. This is for the purpose not only of achieving justice, but also achieving finality in the proceedings and settlement of title to estate assets.[21]
[18] In Re Kuhl [1933] SASR 394 at 398; Lazarus-Barlow v Regent Estates Co Ltd & Anor [1949] 2 KB 465 at 475.
[19] Estate Kouvakis [2014] NSWSC 786 at [212].
[20] Osborne v Smith (1960) 105 CLR 153 at 158-159.
[21] Estate Kouvakis [2014] NSWSC 786 at [221], [241]-[260]; Bechara v Bechara [2016] NSWSC 513 at [3]-[11].
The solicitors have been joined to the proceedings as an interested party. They have been joined so that orders can be sought against them for the costs of the rectification proceedings. The basis for such a claim is well established in the Court’s probate jurisdiction. In Kerr v Kerr (No. 2) Gray J said:[22]
The usual practice in this State in a case involving rectification of a will, is that the costs of the parties are paid out of the estate unless the solicitor is at fault, in which case the costs are paid by the solicitor. This practice follows the long established practice of courts of probate that where the litigation has been brought about through the conduct of the testator or testatrix costs should be paid out of the estate.
[Citations omitted].
[22] [2016] SASC 24 at [3].
The principle has been applied subsequently in Re Molnar (No. 2)[23] and in Re Ponikvar (No. 2).[24]It is consistent with practice in the United Kingdom.[25]
[23] [2016] SASC 159.
[24] [2016] SASC 166.
[25] Marley v Rawlings (No. 2) [2014] UKSC 51.
The practice is an application of the power of the Court to award costs against non-parties. In determining a claim or cause of action, the Court has power to determine by whom and to what extent the costs of proceedings in the Court are to be paid.[26] This power may be exercised against non-parties.[27] The power to award costs against non-parties is subject to the ordinary principles of natural justice. There is no requirement for a claim or cause of action against the non-parties in order to enliven the power to award costs against them.
[26] Supreme Court Act 1935 (SA) s 40.
[27] Knight v FP Special Assets Ltd (1992) 174 CLR 178; Vestris v Cashman (1998) 72 SASR 449.
In this matter the plaintiff contends that the solicitors are “at fault” within the meaning of the practice in Kerr and seeks her costs from them.
This is not a negligence claim brought against the solicitors in the guise of a rectification action.
For these reasons I am satisfied that the affidavit does disclose a reasonable cause of action.
Are the proceedings vexatious or an abuse of process?
The solicitors submit that it is an abuse of the Court’s process to issue the second summons after agreement was made at the mediation. This contention is based on the solicitors’ submission that by the agreement the plaintiff’s action had been settled in full. There was an accord and satisfaction. They submit that the settlement became an order of the Court precluding the plaintiff from pursuing the claim for rectification. The solicitors contend it is vexatious and an abuse of process to continue to pursue the claim for rectification merely to obtain an order for payment by the solicitors of the costs of the action. The solicitors further submit that it is vexatious and an abuse of process to use the settled rectification action as a “Trojan horse” to pursue what amounts to a negligence claim against the solicitors in the absence of any pleaded claim to that effect.

I do not accept these submissions for two reasons. First, the agreement did not effect a settlement of the claim for rectification. In these circumstances, the plaintiff cannot be precluded from pursuing the claim. Second, the pursuit of the rectification claim and the costs claim are not vexatious or an abuse of process.
The agreement did not effect a settlement of the claim for rectification
The solicitors submit that the plaintiff’s claim for rectification has settled in full pursuant to the agreement which has been made an order of the Court. Consequently there is no basis upon which anything remains of the settled action which might support the orders sought against them.
This submission misunderstands the effect of the agreement.
The agreement provides for the distribution of the testator’s estate in the event of two alternative contingencies: first, that the will is rectified; and second, that the will is not rectified. So much is evident from the terms of paragraphs 1, 4, 5, 6, 8, 11 and 13 of the agreement. The terms of the agreement expressly provide first, for the continuation of the plaintiff’s claim for rectification, and second, for the plaintiff to claim the costs incurred from the solicitors, notwithstanding that any other claim which the defendants might have against the testator’s estate are compromised. Those other claims or potential claims were for a legacy payable pursuant to the unrectified will, a legacy payable pursuant to a rectified will, a claim under the Family Provision Act or otherwise. The agreement constituted an accord and satisfaction in respect of those claims.[28] By the agreement the defendants’ claims were abandoned in return for the promise of the new benefits provided in the agreement.[29] The accord and satisfaction had effect as a contract between the parties.
[28] British Russian Gazette & Trade Outlook Ltd v Associated Newspapers Ltd [1933] 2 KB 616 at 643; McDermott v Black (1940) 63 CLR 161 at 183-184; Commissioner of Taxation (Cth) v Orica Ltd (1998) 194 CLR 500 at [116].
[29] Osborn v McDermott [1998] 3 VR 1.
I reject the submission that there was an accord and satisfaction of the plaintiff’s claim for rectification. The reference to “all issues in the litigation” in the preamble to the agreement must be read together with the words “as follows”. What follows is an express agreement that the plaintiff is entitled to pursue the claim for rectification.
As one of the parties to the agreement, Eve, a person under a legal disability due to her age, could not contract to compromise her legal rights without the Court approving the terms of the settlement pursuant to SCR 257, the orders of Judge Dart made on 31 August 2017 approving the compromise had the effect that the agreement was binding on Eve and constituted an accord and satisfaction of her claim. The order made pursuant to SCR 257 did not have the effect of making the agreement a judgment or order of the Court.[30] The effect of Judge Dart’s order was to render the agreement enforceable against Eve. The order did not, by its express terms, or by necessary implication, make the terms of the agreement into orders of the Court. Judge Dart’s order rendered the agreement valid, effective and enforceable as against Eve. The order did not give rise to res judicata or an issue estoppel or Anshun estoppel.
[30] Scaffidi v Perpetual Trustees (Vic) Ltd [2011] WASCA 159 at [53], (2011) 42 WAR 59 at 72-73.
The doctrine of res judicata is that if a dispute is decided by a court of competent jurisdiction the judgment of the court is final and conclusive as to the rights and duties of the parties to the proceedings. Res judicata constitutes an absolute bar to a subsequent suit for the same cause of action. The doctrine applies only when the issues upon which the suit has been brought, the cause of action, and the parties to the action are the same as in the original action. It applies by operation of law rather than discretion of the court.[31] For the operation of res judicata there must be a formal judgment of the court which has the effect of extinguishing the relevant cause of action by merger.[32]
[31] Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502.
[32] Jackson v Goldsmith (1950) 81 CLR 446 at 466; Maganja v Arthur [1984] 3 NSWLR 561 at 563.
The order of Judge Dart approving the compromise contained in the agreement does not give rise to a res judicata, precluding the plaintiff from pursuing either rectification of the will or a claim for costs against the solicitors. The Court’s approval in accordance with SCR 257 was not a judgment of the Court which finally and conclusively determined the plaintiff’s claims for rectification or costs. It merely approved the compromise which expressly preserved the plaintiff’s rights to pursue those claims for rectification and costs against the solicitors. In any event, as the claim for costs is ancillary to the claim for rectification, the order approving the compromise could not, and did not, finally and conclusively decide the costs claim, either expressly or impliedly.
Issue estoppel is similar to res judicata. The doctrine of issue estoppel is that a judicial determination of an issue of fact or law will dispose of that issue finally and conclusively so that it cannot thereafter be raised by the same parties.[33] When a particular matter has been decided in earlier proceedings, the party is estopped from raising it in subsequent proceedings.[34] In deciding the issue that the parties are estopped from relitigating, the court may consider any materials which identify the issues. Pleadings, on their own, are not decisive. There are three requirements for the doctrine of issue estoppel to apply. They are:[35]
(1)that the same question has been decided;
(2)that the judicial decision which is said to create the estoppel was final; and
(3)that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[33] Blair v Curran (1939) 62 CLR 464.
[34] Parkin v James (1905) 2 CLR 315.
[35] Kuligowski v Metro Bus [2004] HCA 34 at [21], (2004) 220 CLR 363 at 373.
In Blair v Curran Dixon J (as he then was) said:[36]
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded.
[36] (1939) 62 CLR 464 at 531-532.
There is no issue estoppel in this case. The order made by Judge Dart approving the compromise did not finally decide the question of whether the plaintiff is entitled to an order for rectification or an order for costs against the solicitors in respect of the action for rectification. Those claims were not necessarily decided by the order made pursuant to SCR 257.
Anshun estoppel is an extension of the doctrine of estoppel by record. Anshun estoppel will preclude a party putting an argument in subsequent proceedings which that party ought properly have litigated in earlier proceedings. In Port of Melbourne Authority v Anshun Pty Ltd[37] in the joint reasons of Gibbs CJ, Mason and Aickin JJ, their Honours cited with approval the principle as stated by Sir James Wigram VC in Henderson v Henderson[38] as follows:[39]
Where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
[37] (1981) 147 CLR 589.
[38] [1843] 67 ER 313 at 319.
[39] (1981) 147 CLR 589 at 598.
The principle is not one that can be applied mechanically.[40] The majority sought to place that statement of principle in the context of the modern pleading rules. There is an obligation on a party to bring forward the party’s whole case. If the party does not, the party may be prevented from doing so in later proceedings. In considering the question of how extensive that obligation is, the majority adopted a flexible test based on reasonableness. It is necessary to consider whether there may be circumstances whereby a party may justifiably refrain from litigating an issue in one proceeding, yet wish to litigate the issue in other proceedings.
[40] Pertsinidis v Australian Central Credit Union Ltd [2001] SASC 244 at [38], (2001) 80 SASR 76 at 82.
There is no Anshun estoppel in this case.
The solicitors submit that the claim for costs should have been made in the original summons and supporting affidavit. They submit that having failed to bring forward that claim on the original summons it was not open to the plaintiff to do so subsequently by the second summons, as the parties had settled the matter by the agreement.
This submission is fundamentally flawed. The claim for costs is being brought in the same proceedings not in subsequent proceedings. As I have already explained, the agreement does not constitute a final settlement of the claim for rectification. Neither does the order of the Court made by Judge Dart. In any event that order was made subsequent to the filing of the second summons.
The rectification and costs claims are not vexatious or an abuse of process
The plaintiff amended the summons, by filing the second summons, merely to give notice of her intention to seek payment of the costs of the action for rectification from the solicitors. The basis of that claim is that she contends the need for rectification arises from their fault.
At the time when the proceedings were instituted it cannot be said that the purpose of the proceedings was to obtain some advantage for which the action was not intended. The subsequent entry into the agreement by the plaintiff and the defendants; the approval of the agreement by the Court; and the amendment of the summons to claim the costs of the action for rectification against the solicitors; does not convert the proceedings from having a proper purpose to having an improper purpose.
In that regard, I do not accept that the predominant purpose of the proceedings is to obtain legal costs. The predominant purpose remains the application for rectification. In any event, even if the predominant purpose was to obtain an order for costs, that would not constitute an illegitimate or collateral purpose. An order for costs is at the discretion of the Court. A costs order provides an indemnity for the expenses incurred by a party in obtaining a claim for substantive relief or defending such a claim, and is ancillary rather than collateral to the prosecution or the defence of that claim.
In this case the claim for costs against the solicitors is predicated on them being found to be “at fault”. That fault relates solely to the need for the substantive claim for rectification. Accordingly, an award of costs in favour of the plaintiff against the solicitors would be reasonably related to the provision of some form of redress for [the plaintiff’s] grievance[41] and would not be entirely outside the ambit of the legal claim by [the plaintiff] upon which the Court is asked to adjudicate.[42] As such, the award of costs sought if the solicitors are found to be “at fault” cannot be described as a wholly extraneous benefit or as not reasonably flowing from or connected with the relief sought in the proceedings.[43] There is no abuse of process in a case where a plaintiff intends to obtain relief within the scope of the remedy available in the proceedings.[44] That is the case here.
[41] Williams v Spautz (1992) 174 CLR 509 at 543; Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 499.
[42] Varawa v Howard Smith Co Ltd (1911) 13 CLR 35 at 91.
[43] Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 at 422.
[44] Williams v Spautz (1992) 174 CLR 509 at 535.
Finally, I note that the plaintiff is required to exhaust any remedy for rectification before considering bringing any proceedings for negligence.[45]
[45] Walker v Geo H Medlicott & Son (a firm) [1999] 1 WLR 727 at 738-740, 742; In Re Grattan; Grattan v McNaughton & Ors [2001] WTLR 1305 at 1310-1311.
The proceedings are not vexatious or an abuse of process.
Should the Court order summary judgment?
In my view there is no entitlement to summary judgment. I reach this conclusion on two bases. First, on the basis that the solicitors lack standing to apply for summary judgment. Second, on the basis that they cannot establish that there is no reasonable basis for the plaintiff’s claim.
The solicitors were joined to the proceedings as an interested party pursuant to SCR 89. The basis for allowing non-party intervention is explained in Levy v Victoria.[46] The solicitors have the rights of non-party intervention in accordance with SCR 89.SCR 89 empowers the Court to permit a person to intervene in an action on conditions determined by the Court. SCR 89(5) makes clear that the status of the intervener is as a non-party. The status and rights of an intervener are in the discretion of the Court and depend upon the circumstances of the particular case.[47] Interveners are not parties to the action in the sense of being a plaintiff, a defendant or a third or subsequent party.[48] Pursuant to SCR 232, only a party to an action may apply for summary judgment. As the solicitors are not a party, they lack standing to apply for summary judgment. In any event, even if the solicitors have standing to apply for summary judgment, I would not grant it.
[46] (1997) 189 CLR 579 at 601.
[47] Westpac v Gibbons(No. 4) [2012] SASC 80 at [9]-[10].
[48] Re North Flinders Mines Ltd; Paringa Mining and Exploration PLC v North Flinders Mines Ltd, Unreported, Legoe J, 25 November 1988.
In this case the plaintiff has put forward an evidential foundation for the facts upon which the claim for rectification could be granted. While in her affidavit Ms De Duonni deposes to obtaining instructions from the testator at a meeting on 17 August 2011, in accordance with the terms of the will as drafted, that does not establish that there is no reasonable basis for the plaintiff’s claim. That the foundational facts are disputed by the solicitors does not entitle them to summary judgment. On the hearing of this application the plaintiff made clear that she wishes to test the evidence of Ms De Duonni under cross-examination, given that there are no notes of any instructions given by the testator on the occasion of the 17 August 2011 meeting and Ms De Duonni previously stated that she had no recollection of the particulars of this matter beyond what was contained in the will instruction sheet, the file notes, correspondence, drafts and the executed will.
The solicitors also contend that the application for rectification in relation to clause 12 of the will is misconceived as it fails to allow for the effect of clause 5. Clause 5 provides:
I ACKNOWLEDGE that I have given certain directions to the Trustees of my life insurance and superannuation policies with regard to the distribution of those funds upon my death and may alter those directions from time to time and in any event I further acknowledge that such funds are not included as part of the assets to be dealt with under this my Will unless paid to the corpus of my estate.
The solicitors submit that clause 5 excludes the life insurance and superannuation policies from the assets of the testator’s estate, to be dealt with under his will, on the basis they were governed by separate directions to the trustees of those policies. However, there is no evidence before the Court that the testator gave any directions to his trustees in respect of his life insurance and superannuation policies in accordance with clause 5 of the will. Accordingly, the solicitors cannot establish that there is no reasonable basis for the claim for rectification in relation to clause 12 as there is no evidentiary foundation for the submission that the proceeds of those policies are not to be dealt with as an asset of the testator’s estate, in accordance with the provisions of his will.
The solicitors further submit that the Court should dismiss the claim for rectification as it no longer has any utility given the agreement.
The Court will not usually make orders if they would be meaningless, serve no possible good, be ineffective, or cannot be enforced.[49] The solicitors submit that, given the agreement, the application for rectification will have no effect on any of the parties, or the distribution of the assets of the estate, or confer any benefit on any party to the proceedings. They submit there is no real question before the Court which has any effect on the distribution of the estate. This is because the agreement supersedes any determination the Court might make on the application for rectification.
[49] Columbia Picture Industries Inc v Robinson & Ors [1987] Ch 38 at 78; Marriner v Smorgon [1989] VR 485 at 491.
I do not accept this submission.
The power to order rectification pursuant to s 25AA of the Act is a discretionary remedy.[50] There is a clear line of authority under the equivalent New South Wales legislation that the fact rectification is not needed does not stand in the way of the Court making an order.[51] The order is made ex abundanti cautela.[52]
[50] In Re Molnar [2016] SASC 55 at [12].
[51] Long v Long; Estate of Edith Long [2004] NSWSC 1002 at [43] citing Application of Spooner & Anor; Estate of JJ Davis, Unreported, Supreme Court of New South Wales, 28 July 1995 and Estate of Cross, Unreported, Supreme Court of New South Wales, 9 May 1996.
[52] Application of Spooner & Anor; Estate of JJ Davis, Unreported, Supreme Court of New South Wales, 28 July 1995; Rawack v Spicer [2002] NSWSC 849 at [25].
Rectification of a will does not have to be brought for the purpose of financial or material gain. It can be ordered to uphold the testator’s testamentary intentions. In any event, I accept that it is arguable that there are practical reasons for rectification in the circumstances of this case.
If rectification is not ordered the plaintiff will receive a one-quarter interest in lease 342 and Eve a 100 per cent interest in lease 341. To the extent that the agreement provides for a conveyance, surrender or disclaimer of lease 341 to the plaintiff it will be a conveyance that incurs a liability for the imposition of stamp duty. If the plaintiff wants to realise lease 342 she will need to negotiate with her co-proprietors. It is unlikely that a one-quarter interest in a shack will be of value to anyone other than family members and could hardly be sold on the open market. There may be a requirement for an application for partition and sale in those circumstances. If the plaintiff otherwise wants to transfer her interest in lease 342 to Eve for her use and benefit, as the plaintiff submits was the intention of the testator, that will also incur a liability for the imposition of stamp duty and registration fees.

Further, the proceeds of the life insurance policies have not yet been paid. If rectification is not made, subject to the solicitors’ argument in relation to clause 5, they will be paid to the plaintiff in her capacity as executrix and then distributed to the testator’s children. Accordingly those proceeds will not be able to be used to meet the estate’s liabilities and the plaintiff will have to find other funds to pay the testator’s debts. On the other hand, if rectification is granted, those proceeds will be paid to the estate and distributed by the plaintiff to herself as a beneficiary and thereby become available to her to be used as she sees fit, including to discharge joint debts.
In these circumstances I am satisfied that, notwithstanding the agreement, it is at least arguable there is some utility to the orders for rectification sought by the plaintiff.
For these reasons, I reject the submission there is no reasonable basis for the plaintiff’s claim. Accordingly, there is no basis to order summary judgment.
Has the plaintiff committed a procedural irregularity?
The solicitors submit that in circumstances where the proceedings have been settled in full by the agreement it was a procedural irregularity to issue the second summons in the action, seeking new orders against the solicitors, who were not originally joined to the action, and to do so without any cause of action being pleaded against them.
In these circumstances the solicitors submit that SCR 12 cloaks the Court with power to dismiss the proceedings.
I do not accept this submission.
For the reasons explained above, I do not consider that the issuing of the second summons, after the agreement was made, constitutes a procedural irregularity.
Conclusion
I would dismiss the solicitors’ application. I would hear the parties as to costs.