Cuthill v Vonta - [2015] SASCFC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CUTHILL & ANOR v VONTA
[2015] SASCFC 120
Reasons for Decision of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
27 August 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
Appeal against an interlocutory order made by a Judge of this Court during an adjournment of a trial. The plaintiffs are the executors named in a purported will of the deceased dated 24 February 2000. The defendant is the niece of the deceased. In or about early March 2011, the defendant advised the plaintiffs that the deceased had made a later valid testamentary disposition by a will dated 6 May 2007. The plaintiffs claim that on the basis of representations made by the defendant as to the 2007 will, they entered into a deed whereby they agreed to take no action to prevent the defendant from making an application to pronounce that 2007 will.   Subsequently, the plaintiffs wrote to the defendant stating that they believed the 2007 will had not been validly witnessed. The defendant produced two further purported wills dated 3 December 2006 and 10 October 2008. The originals of the purported 2006, 2007 and 2008 wills have not been produced. The plaintiffs instituted these proceedings seeking to rescind the May 2012 deed with the defendant and claim a grant of probate in solemn form of the 2000 will.
There has been a history of delay in these proceedings due to the availability of witnesses and the fact that the defendant was unrepresented for much of the proceedings, including at trial.   The trial eventually commenced on 16 December 2014 continued until 19 December 2014. As at 19 December 2014, the plaintiffs’ case had concluded and the defendant had given evidence and presented witnesses for the defence. The trial has since been adjourned multiple times to allow for the taking of evidence from an elderly witness called by the defence. During this adjournment, the defendant engaged counsel. Counsel for the defendant considered that the defendant should call a handwriting expert to provide evidence as to the validity of the 2006, 2007 and 2008 wills and made an application for an extension of time for the obtaining of an expert report. Over the opposition of the plaintiffs, the Judge made an order extending time for the defendant to obtain and serve an expert report to 28 May 2015. The plaintiffs sought permission to appeal against the order to this Court. The appeal was set down for hearing on 3 June 2015. No report of the handwriting expert was served by 28 May 2015.
Whether the defendant’s failure to comply with the Judge’s orders rendered the appeal otiose. Whether this Court should grant the defendant a further extension of time to serve the expert report.
Held per Gray J (Kourakis CJ and Stanley J agreeing):
1.       The expert report was not served by 28 May 2015 and…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Cuthill v Vonta

Details

AGLC: Cuthill v Vonta [2015] SASCFC 120
Case: [2015] SASCFC 120
Decision Date: 27 August 2015

CaseChat Overview and Summary

The appeal concerned an interlocutory order made by a judge of the Supreme Court of South Australia during the adjournment of a trial. The plaintiffs, Daniel James Cuthill and Barry David Machin, as executors of a purported will of Franciska Pregelj dated 24 February 2000, sought to rescind a deed entered into with the defendant, Yana Vonta, the deceased's niece. The plaintiffs also sought a grant of probate in solemn form of the 2000 will. The defendant contended that the 2000 will had been revoked by later purported wills dated 6 May 2007, 3 December 2006, and 10 October 2008, the originals of which had not been produced.

The central legal issue before the Full Court was whether the primary judge erred in refusing an application by the defendant to extend the time for serving an expert’s report. This application arose during the adjourned trial, which had been significantly delayed due to witness unavailability and the defendant's change of legal representation and personal circumstances, including injuries from a motor vehicle accident. The trial had resumed after an adjournment to allow for the evidence of an infirm witness, the defendant's mother, who resided in Queensland.

The Full Court reasoned that the rules of court governing the extension of time for serving expert reports required the court to consider all relevant circumstances, including the need for a fair trial and the efficient administration of justice. While acknowledging the defendant's difficulties, the Court found that the application for an extension of time was made at a very late stage of the proceedings, after the plaintiffs' case had concluded and the defendant had presented her defence. The Court considered that granting the extension would cause further significant delay and prejudice to the plaintiffs, and that the defendant had not demonstrated a sufficient reason for the late filing of the expert report, particularly given the long history of the proceedings and the previous adjournments. The Court applied principles relating to the court's discretion to extend time, balancing the interests of the parties and the need for timely resolution of litigation.

The appeal was dismissed, and the interlocutory order refusing the extension of time was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against an interlocutory order made by a Judge of this Court during an adjournment of a trial. On 11 June 2015, I joined in an order refusing an application to extend the time within which the defendant could serve an expert’s report and the making of consequential orders. My reasons follow. Background The plaintiffs, Daniel James Cuthill and Barry David Machin, are the executors named in a purported will of the deceased, Franciska Pregelj, dated 24 February 2000. The sole beneficiary under this will is the Watchtower Bible and Tract Society of Australia. The defendant, Yana Vonta, is the niece of the deceased. The deceased died on 9 February 2011. The plaintiffs claim that, in or about early March 2011, the defendant advised the plaintiffs that a later valid testamentary disposition was made by the deceased. On 26 July 2011, the solicitors for the defendant provided the plaintiffs with a copy of a purported will dated 6 May 2007, together with a purported English translation of that document. The plaintiffs claim that on the basis of representations made by the defendant as to the 2007 will, they entered into a deed dated 18 May 2012, whereby they agreed to take no action to prevent the defendant from making an application to pronounce that 2007 will. On 27 June 2012, the plaintiffs’ solicitors wrote to the defendant’s solicitors stating that they believed the 2007 will had not been validly witnessed. The defendant produced two further purported wills dated 3 December 2006 and 10 October 2008. Notice of the existence of these two purported wills was not provided until 5 November 2012. The originals of the purported 2006, 2007 and 2008 wills have not been produced. The plaintiffs instituted these proceedings seeking to rescind the May 2012 deed with the defendant and claim a grant of probate in solemn form of the 2000 will. The defendant claims that any testamentary disposition in the 2000 will has been revoked by the later purported wills or one of them. Initially a trial date was set in June 2014 but could not proceed due to the unavailability of witnesses. The matter was then listed for trial to commence on 26 August 2014. On 14 August 2014, the solicitors acting for the defendant advised the Court that they were no longer acting and, on 19 August 2014, the defendant made an oral application for the trial date to be vacated on the ground that she had recently suffered injuries as the result of a motor vehicle accident and would be unable to represent herself at trial. On 22 August 2014, the August trial date was vacated and a new trial date was fixed for 15 December 2014. The trial commenced on 16 December 2014 and continued until 19 December 2014. The defendant was present at trial but unrepresented. As at 19 December 2014, the plaintiffs’ case had concluded and the defendant had given evidence and presented witnesses for the defence. A further elderly witness, Draga Holzl, remained to be called by the defendant. This witness, the defendant’s mother, was physically infirm and a resident in a nursing home in Noosa, Queensland. The trial was adjourned to 2 February 2015 for the taking of this witness’ evidence, then further adjourned to 9 February 2015, and eventually relisted to resume on 13 February 2015.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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