Daicos v Daicos
[2018] VSC 18
•1 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S CI 2017 01057
| SHAMIMA DAICOS | Plaintiff |
| v | |
| PHILLIP DAICOS (who is sued as the Trustee of the Will and Estate of Alexandra Daicos, deceased) | First Defendant |
| GEORGE DAICOS | Second Defendant |
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JUDGE: | IERODIACONOU AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2017 |
DATE OF RULING: | 1 February 2018 |
CASE MAY BE CITED AS: | Daicos v Daicos & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 18 |
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WILLS AND ESTATES – Application by a contingent beneficiary for declarations – Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 54, r 54.02 – Standing – Whether contingent beneficiary has standing under r 54.02.
PRACTICE AND PROCEDURE – Application for summary dismissal by executor – Civil Procedure Act 2010 (Vic) ss 63 and 64 – Asserted ground for summary dismissal that plaintiff has no standing under r 54.02 – Application disallowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Pascoe | Hicks Oakley Chessell Williams Pty Ltd |
| For the First Defendant | Ms C Sparke QC | Whiting Lawyers |
| For the Second Defendant | No appearance | Robinson Gill Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 2
The Will................................................................................................................................................ 4
Originating motion............................................................................................................................ 6
Can a contingent beneficiary seek judicial direction under O 54?.......................................... 7
Has Phillip established Shamima has no real prospect of success on the basis she lacks standing?........................................................................................................................................................ 19
Submissions................................................................................................................................. 21
Consideration.............................................................................................................................. 24
Alternatively, is section 64 of the CPA applicable?.................................................................. 27
Conclusion......................................................................................................................................... 28
HER HONOUR:
Introduction
Alexandra Daicos (‘the Deceased’) gave her adult son George Daicos[1] a life interest in a house in Fitzroy (‘the Property’). At the time the Deceased made her Will, George was residing in the house with his wife Shamima and their two daughters. The Deceased’s Will provided that, if certain conditions were met, Shamima would be able to continue residing in the Property after George died. Shamima and George have now been estranged for some years. Shamima seeks judicial advice and directions.
[1]George is also known as ‘Ahmed’. As he is referred to as ‘George’ in the Will, and joined as a second defendant by that name, he shall be referred to as George in this ruling to avoid confusion. If he has legally changed his name, then the proceeding title will need to be amended.
In dispute is whether Shamima can reside at the Property and whether she can compel the estate to pay for its repair. The executor to the estate, Phillip Daicos, opposes the application. He is George’s brother and also a son of the Deceased. Phillip says that Shamima has no standing to bring this proceeding because the words of the Will do not give her a right to compel him to do anything. Accordingly, he seeks that the proceeding be summarily dismissed. The question for determination in this proceeding is whether Phillip’s application should be granted.
Summary
The issues determined in this proceeding are as follows.
1. Can a contingent beneficiary seek judicial direction under O 54 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’)? Yes.
2. If so, has Phillip established that Shamima lacks standing and therefore has no real prospect of success in this proceeding? No.
3. Alternatively, is s 64 of the Civil Procedure Act 2010 (Vic) (‘CPA’) applicable? Yes.
Phillip’s application for summary dismissal will be disallowed.
Background
George and Shamima were living together at the time the Deceased made her Will in April 2010. The Deceased died on 31 July 2010. The Will refers to her sons: Phillip and George, two daughters and various grandchildren. The grandchildren named in the Will include the two daughters of George and Shamima. The daughters are both now young adults.
Shamima has lived at the Property for 26 years.
In 2009, a government authority removed one of George and Shamima’s daughters to a safe house. In 2011, the other daughter was moved to a safe house. An intervention order was obtained by Shamima against George in 2011. She stayed temporarily at a women’s shelter. George left the Property. There is some confusion as to exactly when that was. Shamima says that it was in 2011 and George thinks it was after an intervention order in October 2010.[2] During the period 2011 to 2013, George sometimes returned to the Property.
[2]Affidavit of Ahmed Daicos, affirmed on22 November 2017, [7].
In 2011, George says he advised Shamima on three occasions that he divorced her.[3] He says they are now divorced in accordance with Sharia Law and have been since 2011.[4] Shamima says she does not accept the principles of Sharia Law apply in Australia. She says they remain legally married according to Australian law.
[3]Ibid, [8].
[4]Ibid, [8].
In late 2013, Phillip’s solicitors alleged Shamima was not entitled to remain in the Property with her two daughters. This allegation was strongly resisted.[5]
[5]Affidavit of Matthew John Hicks sworn on 9 November 2017, [5].
Shamima wanted the Property repaired. The estate’s solicitors indicated that the request for repairs should come from George.[6] Shamima’s solicitor requested George provide a signed authority to Phillip requesting the estate meet the cost of structural repairs and improvements to the home. George declined to give that authority.[7] Phillip then requested that Shamima obtain two quotations.[8] Those quotations were obtained and Phillip’s solicitors indicated the quantum to be excessive.[9] George supports his brother’s opposition to Shamima’s application to have the estate pay for repairs and improvements to the Property.[10]
[6]Affidavit of Matthew John Hicks sworn on 9 November 2017, [5].
[7]Ibid.
[8]Ibid, [7].
[9]Ibid [7]; Affidavit of Shamima Daicos sworn on 17 March 2017, [26].
[10]Affidavit of Ahmed Daicos affirmed on 22 November 2017, [5].
George and Shamima have now been estranged for at least six years. One daughter does not live with Shamima. The other daughter lives with Shamima on a part-time basis.
George has indicated he has been living in transient accommodation since separation with Shamima and now wishes to resume occupation of the Property. He supports any application by his brother to have Shamima vacate the Property.[11] George says he permitted Shamima to remain in the Property since separation because of previous concerns for her welfare and that of their two daughters. However, it has now been over seven years since separation and, as far as he is aware, their daughters are independent of their mother, and he no longer has concerns about either their welfare or Shamima’s welfare.[12]
[11]Ibid.
[12]Ibid, [9].
Phillip has indicated that he will seek to evict Shamima from the Property.[13]
[13]Transcript of Proceedings, Daicos v Daicos (Supreme Court of Victoria, SCI 2017 01057, Ierodiaconou AsJ, 11 December 2017) 7 (‘Transcript of proceedings’).
George has sought an extension of time, in the County Court of Victoria, to enable him to commence Part IV proceedings in respect of the Deceased’s estate.[14]
[14]Ibid, 39.
The Will
The Will of Alexandra Daicos executed on 1 April 2010 under the Grant of Probate issued on 4 October 2010[15] relevantly provides:
[15]Affidavit of David Whiting sworn on 27 October 2017, Exhibit DW-01.
1.I REVOKE all former Wills and testamentary dispositions made by me.
2.I APPOINT my son PHILLIP DAICOS (hereinafter called “my Trustee”) Executor of this my Will and Trustee of my Estate and I DIRECT that the expression “my Trustee” where hereinafter used shall, unless the context otherwise requires, mean and include the Trustees for the time being of this my Will whether original or substituted.
3.I GIVE DEVISE AND BEQUETH my property situate and known as [address of property] or any other property purchased by me in substitution thereof to my Trustee UPON TRUST:
a.To permit my son GEORGE DAICOS to live in the property (“the house”) during his lifetime. My son must pay building insurance (as assessed by my Trustees) water and sewerage usage charges payable in respect of the house and shall keep the house in a reasonable state of repair. If my Trustees decide that because of illness, infirmity or other good reason it is in the best interest of my son to do so, my Trustees may sell the house and may purchase another residence (“the new residence”) out of the proceeds of the sale of the house and shall hold the new residence upon the same trusts as those upon which the house was held including the power of sale and purchase. Any surplus arising for the sale of the house and the purchase of the new residence shall be added to the fund set out or described in Clause 4 hereof. After his death, the house or any substitute property shall (subject to the following sub-clause) be sold and the net proceeds be added to the fund established under Clause 4 hereof.
b.IN THE EVENT that my son is living in a bona fide domestic relationship with SHAMINA DAICOS[16] at the time of his death, then she shall have the same rights to my house under the above sub-clause (but not the right to require the purchase of a substitute property) AND SHE MUST PAY BUILDING INSURANCE AS ASSESSED BY MY TRUSTEES AND THE COUNCIL RATES ASSESSED IN RESPECT OF THE PROPERTY AND WATER AND SEWERAGE USAGE CHARGES PAYABLE IN RESPECT OF THE PROPERTY until she has in the opinion of my Trustees ceased to reside permanently in the house OR THE CHARGES SHE IS REQUIRED TO PAY OR ANY OF THEM ARE OUTSTANDING FOR MORE THAN 90 DAYS, whereupon the house shall be sold and the net proceeds added to the fund established under Clause 4.
[16]The parties agree this is a typographical error and ‘Shamina’ is a reference to Shamima.
c.All fees costs and charges including taxes assessed on or payable by my estate in respect of any transaction (whether on income account or capital account or both) which arise directly or indirectly as a consequence of this Clause 3 shall be paid out of sale proceeds or the fund established under Clause 4.
4. I DIRECT MY TRUSTEES:
a. to set up a fund (“the George Daicos fund”), to consist of:
i.other part or parts of my estate directed to the fund under any other clause of this my Will;
ii.the net proceeds of any property transaction as described in or anticipated by Clause 3 of this my Will; and
iii.any income or capital added to or accumulated in the fund from time to time;
b. to invest the fund as authorised by law and this Will;
c.to pay costs of administering the fund including taxes on income and capital account from the income of the fund;
d.to pay those costs relating to any property to which Clause 3 applies and which are not paid as required by that Clause;
e.to pay so much of the income and capital therefrom as in my Trustee’s sole discretion necessary for maintenance and support of the said GEORGE DAICOS to or for the benefit of GEORGE DAICOS provided that my Trustee shall not in any year of income be obliged to make any payment to or for the benefit of my said son GEORGE DAICOS;
f.upon the death of my son GEORGE DAICOS, hereof to pay all or part of the income and capital of the fund to such of [names Shamima and George’s two daughters] as survive me and attain the age of thirty-seven (37) years as tenants in common in equal shares;
g.in the event that no person is entitled under sub-clause (f), the fund shall be held for PHILLIP DAICOS, HELEN KOMORA and JEANETTE DAICOS as tenants in common in equal shares.
...
17.I HEREBY DECLARE that every discretion vested in my Trustees shall be absolute and uncontrolled and every power vested in them shall be exercisable at their absolute and uncontrolled discretion and my Trustees shall have the like discretion in deciding whether or not to exercise any such power AND as Trustees shall be responsible for any loss or damage occasioned by the exercise of any discretion or power hereby or by law conferred on my Trustees by failure to exercise any such discretion or power hereby or by law conferred on my Trustees or by failure to exercise any such discretion or power or for any loss or damage occurring as a result of concurring or refusing or failing to concur in any exercise of any power or discretion or by reason or any other matter or think except individual fraud or wrongdoing on the part of the Trustees who is sought to be liable.
Originating motion
The relief sought in the amended originating motion filed 29 November 2017, includes the following.
14.Pursuant to r 54.02(a)(i) of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff seeks an order declaring whether, in the events that have occurred, she is entitled to bring the proceeding herein—as amended and with George Daicos added as a second defendant—to answer questions and seek orders in relation to matters that have arisen in the administration of the deceased’s estate.
15.If Yes to paragraph 14, the plaintiff seeks an order pursuant to r 54.02(a)(iii) of the Supreme Court (General Civil Procedure) Rules 2015, declaring whether, in the events which have occurred, sub-clause 3a of the Will, properly interpreted, permits George Daicos (‘George’), and his wife, Shamima Daicos, the plaintiff herein, to live in the house during George’s lifetime he:
d)paying building insurance on the house as assessed by the trustee;
e)paying water and sewerage usage charges; and
f)keeping the house in a reasonable state of repair.
16.If Yes to paragraph 15, pursuant to r’s 54.02(b)(iii) & 54.02(c)(ii) of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff seeks an order declaring whether the first defendant, in his capacity as the Trustee of the Will and Estate of Alexandra Daicos, deceased, is required to pay from the George Daicos fund all such costs as this Honourable Court shall determine are presently required to be expended by him in discharge of his obligation pursuant to sub-clause 4d of the deceased’s will to pay those costs relating to the trust property situated and known as [address of Property] as are not, by clause 3 of the will, payable by George Daicos.
17.All necessary orders giving effect to any such declarations as are made pursuant to paragraphs 14, 15 and 16 above.
18.An interlocutory injunction that the first defendant, by himself, his servants or agents or otherwise howsoever, be and is hereby restrained until the hearing and determination of the proceeding herein or until further order, from doing any acts or commencing any legal proceedings to take possession of the house being the estate property situated and known as [address of Property] and being the whole of the land contained in Certificate of Title Volume …
Can a contingent beneficiary seek judicial direction under O 54?
For convenience, in this Ruling, the words ‘contingent beneficiary’ are used to define a person whose interest in the estate is solely contingent. As the parties agree that Shamima is a contingent beneficiary,[17] the question arises as to whether such an interest can support standing under O 54.
[17]Transcript of proceedings, 78.
For the following reasons, I find that a contingent beneficiary may seek judicial directions under O 54.
O 54 of the Rules relevantly provides:
Order 54—Administration of estates and execution of trusts
54.01 Definitions
In this Order—
administration proceeding means a proceeding for the administration of an estate or the execution of a trust under the direction of the Court;
estate means the estate of a deceased person.
54.02 Relief without general administration
(1)A proceeding may be brought for any relief which could be granted in an administration proceeding and a claim need not be made for the administration or execution under the direction of the Court of the estate or trust in respect of which the relief is sought.
(2) Without limiting paragraph (1), a proceeding may be brought for—
(a)the determination of any question which could be determined in an administration proceeding, including any question—
(i)arising in the administration of an estate or in the execution of a trust;
(ii)as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust; or
(iii)as to the rights or interests of a person claiming to be a creditor of an estate or to be entitled under the will or on the intestacy of a deceased person or to be beneficially entitled under a trust;
(b) an order directing an executor, administrator or trustee to—
(i) furnish and, if necessary, verify accounts;
(ii) pay funds of the estate or trust into court; or
(iii) do or abstain from doing any act;
(c) an order—
(i)approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee; or
(ii)directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate or trust were being administered or executed under the direction of the Court.
54.03 Parties
In an administration proceeding or a proceeding referred to in Rule 54.02—
(a)all the executors of the will of the deceased or administrators of the estate or trustees of the trust, as the case may be, shall be parties;
(b)where the proceeding is brought by executors, administrators or trustees, any of them who does not consent to being joined as a plaintiff shall be made a defendant;
(c)notwithstanding anything in Rule 9.03(1), and without limiting the powers of the Court under Order 9, all persons having a beneficial interest in or claim against the estate or having a beneficial interest under the trust, as the case may be, need not be parties, and the plaintiff may make such of those persons parties as the plaintiff thinks fit;
(d)where in the taking of an account of debts or liabilities under a judgment or order in the proceeding, a person not a party makes a claim—
(i)a party other than the executors or administrators or trustees shall not be entitled to attend before the Court in relation to that claim except by leave of the Court; and
(ii)the Court may direct or allow any party to attend before the Court either in addition to or in substitution for the executors, administrators or trustees.
54.04 Notice of proceeding and judgment
(1)In an administration proceeding or a proceeding within Rule 54.02, notwithstanding Rule 54.03, the Court may order that any person not a party be given notice of the proceeding and of any judgment in the proceeding.
(2)On the application of a person given notice under paragraph (1), the Court may, in accordance with Rule 9.06(b), order that the person be added as a party.
54.05 Relief in proceeding by originating motion
(1)In an administration proceeding or a proceeding within Rule 54.02 the Court may make any order and grant any relief to which the plaintiff is entitled by reason of any breach of trust, wilful default or other misconduct of the defendant, notwithstanding that the proceeding was commenced by originating motion.
(2) Paragraph (1) does not limit the power of the Court under Rule 4.07(1).
54.06 Judgment in administration proceeding
(1)The Court need not give judgment or make an order for the administration of an estate or the execution of a trust under the direction of the Court unless the judgment or order is necessary for the determination of the questions arising between the parties.
(2)Where an administration proceeding is brought by a creditor of the estate or by a person claiming to be entitled under the will or on the intestacy of the deceased or to be beneficially entitled under the trust, the Court may –
(a)if it is alleged that no or no sufficient accounts have been furnished by the executors, administrators or trustees, order –
(i)that the proceeding be stayed for a period specified in the order; and
(ii)that the executors, administrators or trustees shall, within that period, furnish the plaintiff with proper accounts;
(b)if necessary to prevent proceedings by other creditors or by other persons claiming to be entitled under the will or on the intestacy of the deceased or to be beneficially entitled under the trust –
(i)give judgment or make an order for the administration of the estate or the execution of the trust under the direction of the Court; and
(ii)order that no steps be taken under the judgment or order, or under any account or inquiry directed, without the leave of the Court.
54.07 Conduct of sale
Where the Court makes an order for the sale of property comprised in an estate, or trust property, the executors or administrators, or the trustees, as the case requires, shall, unless the Court otherwise orders, have the conduct of the sale.
Rule 9.03(1), referred to above in r 54.03(c) provides:
9.03Joinder of necessary parties
(1)Except by order of the Court or as provided by or under any Act, where the plaintiff claims any relief to which any other person is entitled jointly with the plaintiff –
(a) all persons so entitled shall be parties to the proceeding; and
(b)any person who does not consent to being joined as a plaintiff shall be made a defendant.
Rule 9.06(b), referred to above in r 54.04(2) provides:
9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order that—
(a)any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party;
(b) any of the following persons be added as a party—
(i)a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or
(ii)a person between whom and any party to the proceeding there may exist a question arising out of, or relating to, or connected with, any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding;
…
The High Court has summarised the current approach to interpretation as follows:
[t]he starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[18]
[18]SZTGM v Minister for Immigration and Border Protection (2017) 347 ALR 405, 410 citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-382 [69] – [71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46 – 47 [47]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.
Similarly, the Court of Appeal has emphasised the importance of the text, in light of any perceived tensions with the purposes of the legislation in consideration.[19]
[19]Colonial Range Pty Ltd v CES-Queen (Vic) Pty Ltd [2016] VSCA 328 (16 December 2016) [54].
The starting point for analysis is the text of r 54.02, in light of its purpose and context. A number of points may be noted in this regard. First, as a whole, the language of O 54 is broad, referring to ‘any relief’ and ‘any question’, with a non-exhaustive list of the types of questions that may fall into its scope.
Second, there is no express limitation on who may bring an application. Unlike the statute from which the rule is ultimately derived,[20] and an analogous rule in Western Australia,[21] a list of potential applicants has not been provided. Certainly r 54.03(a) stipulates the executors of the will or trustees or administrators of the estate must be a party but it does not preclude others and, as discussed below, r 54.03(c) envisages other parties. Use of the language ‘where the proceeding is brought by executors, administrators or trustees…’ in r 54.03(b) is an indication that the drafters contemplated that proceedings could be brought by other people. That is, if the drafters intended r 54.02 to be used only be executors, trustees or administrators, it may not have been necessary to specify proceedings commenced by those parties in r 54.03(b).
[20]See Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 citation 48 (‘Macedonian Orthodox’), the powers given by rr 54.02 and 54.03 are derived from the Rules of the Supreme Court 1883.
[21]Rules of Supreme Court 1971 (WA) r 58.2.
Third, O 54 contemplates persons with beneficial interests being parties. Rule 54.03(c) enables a plaintiff making an application pursuant to r 54.02 to join anyone with a beneficial interest in the estate, or a claim against it, as a party, although such a joinder is not mandatory. Thus while Rule 54.03(c) does not specifically identify who has standing, some indication of the parties that may be involved is provided in the references: to ‘a person claiming to be a creditor’, ‘entitled under a will’, or ‘to be beneficially interested’ in r 54.02(2)(a)(iii); and to executors and trustees, as well as ‘persons having a beneficial interest’ in r 54.03. Rule 54.04(2) expressly enables the Court to add ‘a person’ as a party to a r 54.02 proceeding in accordance with r 9.06(b) in the following circumstances: where the Court has ordered that a person who is not a party be given notice of the proceeding, and that person subsequently makes an application to be added as a party. This is consistent with a broad and flexible approach to standing.
Moreover, r 54.06 refers to administration proceedings ‘brought by a creditor of the estate or by a person claiming to be entitled under the will or on the intestacy of the deceased or to be beneficially entitled under the trust’,[22] suggesting that in those types of proceedings a broad approach to standing is adopted.
[22]Supreme court (General Civil Procedure) Rules 2015 (Vic) r 54.06(2) (emphasis added).
The overall impression from the text and structure of O 54 is that r 54.02 was intended to have a broad and flexible application, and that the matter of standing regarding applications under r 54.02 has been left open. The Court of Appeal has stated that the O 54 provisions ‘confer extensive power on the Court’,[23] and that ‘the procedure invoked … is a summary procedure, intended to enable questions arising in the administration of an estate or a trust to be resolved cheaply and simply’.[24]
[23]Fast v Rockman [2015] VSCA 61 (15 April 2015) [43].
[24]Morris v Smoel [2013] VSCA 11 (15 January 2013) [23].
Most authorities referring to r 54.02 have been applications by trustees or executors seeking the advice of the Court, approval regarding particular acts, or orders to facilitate the administration of the trust or estate. In this context, the breadth of the rule has been noted.
In Re Fast[25] Digby J held:
The nature of the proceeding, including its summary character, indicates a wide and facilitative, rather than a narrow or strict, approach by the Court is appropriate under Order 54.02 of the Rules. Such an approach promotes the intent of the Rule to enable the Court to assist in the administration of trusts by making practical and proportional orders well short of a general administration order, in suitable cases, for example to clarify the scope of a power or duty and thus afford certain personal protection to trustees or executors where appropriate.[26]
[25][2015] VSC 780 (23 October 2015).
[26]Ibid [14]; see also DR McKendry Nominees Pty Ltd [2015] VSC 560 (22 September 2015) [12]; Ballard v A-G (Victoria) (2010) 30 VR 413, 421; Re Salvation Army (Victoria) Property Trust [2017] VSC 553 (18 September 2017) [42].
When commenting upon an analogous rule, the Court of Appeal of New South Wales also recognised the protection afforded to beneficiaries or creditors of the estate.[27]
[27]Gonzales v Claridades (2003) 58 NSWLR 211, 218 (‘Gonzales v Claridades’); see also Bose v Bose [2013] NSWSC 327 (26 March 2013) [31].
In Cody v Cody,[28] an application by an executor to sell property of the estate, McMillan J stated:
Order 54 of the Rules enables the court to do all things that it could previously do in a general administration proceeding, without the need for such a proceeding. Although the power conferred by the order is broad and extends to directing a personal representative or trustee ‘to do or abstain from doing any act’, the court is confined within the limits of the trust.[29]
[28][2013] VSC 274 (5 June 2013).
[29]Ibid, [53].
It is apparent from both the heading of r 54.02 and text of r 54.02(1) that O 54 simplifies applications regarding the administration of estates and the execution of trusts. O 54 derives from statutory reforms in England creating an avenue for specific relief in relation to administration, without the time and expense associated with a suit for general administration.[30] The language of those reforms was particularly broad, referring to an originating summons taken out by:
executors or administrators … the trustees… and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next of kin, or heir-at-law or customary heir of a deceased person, or as cestui que trust under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid…[31]
[30]Macedonian Orthodox, 84 and footnote 48; Gonzales v Claridades; McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623, 633 (‘McLean v Burns’).
[31]Macedonian Orthodox, 84 and footnote 48.
Applications have previously been brought under r 54.02 by beneficiaries.[32] In those cases, however, standing has not been at issue. While other jurisdictions have analogous provisions,[33] the associated case law provides limited assistance on the issue of standing.
[32]See eg. Re Staughton; Grant v McMillan [2017] VSC 359 (22 June 2017); Kerr v Perusia Nominees Pty Ltd [2002] VSC 277 (1 July 2002); See also Evans v Evans (1910) 10 SR (NSW) 594.
[33]See eg Rules of Supreme Court 1971 (WA) r 58.2; Uniform Civil Procedure Rules 2005 (NSW) 54.3; Supreme Court Civil Rules 2006 (SA) r 206; Supreme Court Rules 2000 (Tas) r 604; Supreme Court Rules 1987 (NT) r 54.02; Court Procedures Rules 2006 (ACT) r 2700; see also as to administration proceedings more broadly Administration Act 1903 (WA) s 45; Succession Act 1981 (Qld) s 6; Probate and Administration Act 1898 (NSW) s 57; Administration and Probate Act 1919 (SA) s 69; Administration and Probate Act 1929 (ACT) s 51; Administration and Probate Act 1969 (NT) s 82.
One case that did consider standing is Pacella v Sherborne.[34] It involved an application for directions as to the proper interpretation of a will, brought by a beneficiary under s 45 of the Administration Act 1903 (WA). Section 45 provided, inter alia:
(1) The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.
[34][2009] WASC 58 (19 March 2009).
The defendant executor sought to have the application struck out, however, Sanderson M found in the applicant’s favour:
there appears to be nothing in s 45 which would prevent an application to the court by a beneficiary.
…
… s 45 is in broad and general terms. It refers to ‘any question arising in any respect of any will or administration’. That phrase is entirely open-ended. It clearly shows that the legislature was intending to provide the court with the widest possible discretion to deal with problems which arise in relation to the estate.[35]
[35][2009] WASC 58 (19 March 2009)., [11] and [12]; see also Micallef v Micallef [2012] QSC 239 (3 September 2009); Manktelow v Public Trustee (2001) 25 WAR 126; [2001] WASC 290.
Of additional guidance, albeit limited, are early authorities that considered standing in the context of suits for general administration. In Re Parsons,[36] for example, Kay J stated that ‘the veriest scintilla of an interest will entitle a person’[37] to maintain an action for administration, before finding that the applicant next of kin did not have standing. Of significance was the indeterminate class of contingent beneficiaries, leading to the conclusion that the applicant had only a ‘hope or expectation’.[38]
[36](1890) 45 Ch D 51 (‘Re Parsons’).
[37]Ibid, 59.
[38]Ibid, 56; see also Clowes v Hilliard (1876) 4 Ch D 413.
Davis v Angel (1862)[39] was a matter in which a testator bequeathed part of his residuary estate to be held on trust for his nephew, in case his nephew should marry a named niece of the testator. Upon the death of the nephew that portion of the estate was to be held on trust for his eldest son who reached 21 years. During the testator’s lifetime the nephew married and had a son, but did not marry the niece specified in the will. The son sought orders declaring his rights to a share of the residuary estate, while the defendant executors asserted that the plaintiff had no standing, as at most he had a ‘remote possibility’ that was dependent upon three contingencies. In concluding that the son had no standing, Westbury LJ reasoned:
I am prepared to admit that an existing interest, whether it be vested or contingent, however future or remote, may, if it be a present interest, form the foundation of a right in the party representing it to come here with a bill to have the share secured. While the existence of such an interest interferes with the share being paid over by the trustees it will still warrant an application to the Court to secure it. But though the distinction is a fine one yet it perfectly exists and is easily apprehended; -I mean the distinction between an interest that has arisen and is represented, and an interest that has not arisen and that never may arise, but with regard to which there is a remote possibility that the event which has not occurred and upon which it is made to hang may hereafter occur. The latter is not an interest, it is not a right; it is nothing more than a bare expectation of a future right. The expectation of a future interest, or rather, of a future event that may give an interest, is not a thing which would justify a Court of Equity in entertaining a suit at the instance of a party having that and nothing more.[40]
[39](1862) 4 De G F & J 524.
[40](1862) 4 De G F & J 524, 1289 – 1290.
In other cases, creditors the subject of a discretionary power were afforded standing,[41] as were beneficiaries with a contingent interest seeking to have estate funds brought into court.[42] In Re Caines,[43] a testator devised his house to his wife for life, with the remainder to the plaintiff. The house was jointly owned, but certain evidence suggested that prior to his death the testator had taken steps to sever the joint tenancy. Although prima facie the plaintiff did not directly benefit under the will, Megarry VC determined that given the evidence, the plaintiff had standing to issue an originating summons for administration of the estate.
[41]Joel v Mills (1857) 3 Kay & J 458; 69 ER 1189 (‘Joel v Mills’); see also Cosser v Radford (1863) 1 DJ & S 585 (‘Cosser v Radford’); 46 ER 232; see also McClean v Burns.
[42]Bartlett v Bartlett (1845) 67 ER 800 (‘Bartlett v Bartlett’); see also Score v Ford (1844) 49 ER 1093; see generally LexisNexis, Wills, Probate & Administration Victoria, Parties and standing, [88,160.5] ‘Wills, Probate & Administration Victoria’); JD Heydon and MJ Leeming, Jacobs’ Law of Trusts in Australia (LexisNexis, 7th ed, 2006) [2306] – [2307] and [2303].
[43][1978] 1 WLR 540; [1978] 2 All ER 1 (‘Re Caines’).
Shamima relies upon authorities which, in the context of trusts and estates more broadly, have considered the issue of standing. In Parkes Management Ltd v Perpetual Trustee Co,[44] the manager of a trust sought an injunction in relation to the certification of his retirement by the trustees. The Court of Appeal of New South Wales rejected the submission that the manager did not have standing to bring the claim, finding that the manager had ‘various interests in the trust fund’, including some that were contingent.[45]
[44](1977) 3 ACLR 303.
[45](1977) 3 ACLR 303, 313.
Russo v Russo[46] was a decision of Hargrave J (as his Honour was then) exercising powers under s 34 of the Administration and Probate act 1958 . That section, which is sometimes relied upon in conjunction with O 54,[47] provides for the removal of executors. In the circumstances, the plaintiffs sought to remove their brother as the executor of their father’s estate. The father and mother had executed mutual wills such that, upon the father’s death the mother was the sole beneficiary, and in accordance with the mother’s will, the brother and plaintiffs all benefited. The brother applied for summary dismissal of the plaintiffs’ claim, with the plaintiffs’ lack of standing the only ground relied upon. Section 34 gave no insight as to issues of standing. Without relying upon issues of constructive trust, Hargrave J found in favour of the plaintiffs, stating:
I accept that the paramount concern of the Court in determining an application for the removal of an executor is the interests of the beneficiaries. However, I do not accept that the Court’s discretion is limited so that, in every case, regard may only be had to the interests of immediate or direct beneficiaries …
The daughters’ application to remove their brother as executor and trustee is based upon serious allegations against him. They contend that, as a result, the father’s assets were substantially diminished prior to his death. In these circumstances, the daughters seek removal of their brother so that an independent trustee can investigate their claims, take advice and determine whether the estate should bring proceedings to recover property taken from the father. If such claims are brought and established, they will swell their father’s estate and will, in all probability, also swell their mother’s estate upon her death. In these circumstances, the daughters have a real financial interest to ensure that the execution of their father’s estate is not infected with conflict of interest. In my opinion, that is a sufficient interest to give them standing to apply for their brother’s removal as executor and trustee.[48]
[46][2009] VSC 491 (30 October 2009) (‘Russo v Russo’).
[47]LexisNexis, Williams Civil ProcedureVictoria, Purpose, use and history of Order, [I 54.01.10].
[48]Russo v Russo, [30] – [31] (emphasis added).
The approach of Hargrave J was referred to by the Court of Appeal in Wood v McLean.[49] That case was an appeal from a decision which held that the plaintiffs, who were not beneficiaries under the relevant will, could not bring a claim against an executor asserting that a transfer of property by the deceased during his lifetime was made in unconscionable circumstances. Although the plaintiffs had also commenced a Part IV claim, such that they may have ultimately benefited under the will, at first instance it was held that this was not enough to satisfy standing:
[49][2011] VSCA 37 (18 February 2011) (‘Wood v McLean’).
[t]he authorities clearly demonstrate that in order to bring such a proceeding, the plaintiffs must have a present interest or an actual existing interest. A mere possibility or even probability will not be sufficient.
…
It is clear, in my opinion, that the plaintiffs are not beneficiaries in the relevant sense. They do not have a present interest or an actual existing interest so as to fall within the scope of the cases referred to by the plaintiffs.[50]
[50]Wood v McLean (2010) 31 VR 12, 15 [21] and [23].
Upon appeal, the distinction between a present or actual interest and the mere possibility of an interest was not emphasised. Rather, without determining the issue, the Court of Appeal appeared inclined toward a test of ‘whether, in all the circumstances, the applicants have a sufficient financial or economic interest, if no other’ to support standing. That is, towards a broad interest based test.
Redlich and Mandie JJA held:
This appears to be a novel question and the parties have been unable to point to any direct authority one way or the other. A number of authorities recognise that, in special or exceptional circumstances, a beneficiary under a will may institute proceedings in his own name, joining the executor as a defendant, seeking some relief to protect the estate. Of course, the applicants are not beneficiaries.
Nevertheless, the question might be thought to arise as to whether, in all the circumstances, the applicants have a sufficient financial or economic interest, if no other, as to support a conclusion that they have standing to bring the proceeding. The possible relevance of what was said by Hargrave J in Russo v Russo as to parties with a ‘real financial interest’ having standing to apply for removal of an executor may also require to be considered. A subsidiary question might be thought to arise as to whether it would have been appropriate, rather than to permanently stay the proceeding, to defer the question of standing to the trial. We think that these questions need to be fully ventilated and that the decision below is attended by sufficient doubt as to justify a grant of leave to appeal.[51]
[51]Wood v McLean, [7] and [8] (emphasis added).
In a recent decision, in the context of standing for the revocation of a grant of probate, the Court of Appeal has stated:
… in order to establish standing, an applicant for an order revoking a grant of probate or letters of administration must have a sufficient interest in the proceeding. Sufficiency of interest is established by showing that the applicant’s rights would or might be affected if the grant were to be revoked. The bare possibility of an interest will suffice.[52]
[52]Gardiner v Hughes [2017] VSCA 167 (29 June 2017) [90].
Although the cases are limited in number, on the whole, those that have considered the issue of standing, pursuant to O 54 or analogous mechanisms, lean in favour of a broad and flexible approach. In addition to Wood v McLean, this is evident from: the statement of Kay J in Re Parsons; Bartlett v Bartlett, in which beneficiaries with a contingent interest successfully sought to have funds ordered into court; the cases on creditors the object of discretionary powers having standing;[53] and Re Caines, in which a beneficiary whose gift in remainder appeared incapable of taking effect, was able to inform the Court of evidence that the joint tenancy may have been severed. The exception appears to be Davis v Angel, discussed above, which applies a narrow approach to the distinction between present interests and mere possibilities. Of note, however, the authors of Lewin on Trusts suggest that the interest of the plaintiff in that case ‘might nowadays be analysed as a contingent interest’.[54]
[53]Joel v Mills; Cosser v Radford.
[54]L Tucker, N Le Poidevin and J Brightwell, Lewin on Trusts (Thomson Reuters, 19th ed, 2015) 23-080 and 39-075, footnotes 325 and 278 respectively.
I conclude that r 54.02 should be interpreted broadly and flexibly and that a contingent beneficiary can have standing.
Has Phillip established Shamima has no real prospect of success on the basis she lacks standing?
The application is made under s 63 of the CPA or alternatively rr 23.01 and 23.02 of the Rules.
62 Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
…
Order 23—Summary stay or dismissal of claim and striking out pleading
23.01 Stay or judgment in proceeding
(1) Where a proceeding generally or any claim in a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.
(2)Where the defence to any claim in a proceeding is scandalous, frivolous or vexatious, the Court may give judgment in the proceeding generally or in relation to any claim.
(3) In this Rule—
(a)a claim in a proceeding includes a claim by counterclaim and a claim by third party notice; and
(b)a defence includes a defence to a counterclaim and a defence to a claim by third party notice.
23.02 Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
There were no submissions particular to r 23.01 or 23.02 and accordingly they will not be further addressed.
The principles concerning summary judgment pursuant to the CPA are well established. The Court of Appeal outlined the following tests for summary judgment in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[55]
…
a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[56]
[55](2013) 42 VR 27 (‘Lysaght’).
[56]Ibid, 40 [35].
Submissions
Phillip’s key submissions are as follows.
1. Shamima has no standing and no rights under the Will to compel him to do anything.
The only place in the Will where Shamima has rights is clause 3(b). Those rights only arise if three pre-conditions are met and at least two out of the three are not. That is, firstly, George is alive. Secondly, George and Shamima are no longer living together. Therefore the rights of Shamima do not exist yet.
Phillip concedes that Shamima may have rights in the future. For instance, if George died while he and Shamima were reconciled and living together.
Phillip says the question would then arise as to what Shamima is entitled to do to protect her rights. The repair rights are vested in him as the executor, not George or Shamima.
2. Neither clause 3 nor 4 of the Will give George a right to demand that he and Shamima live in the house. They are only permitted to occupy the house. Phillip says that he has an unfettered right to sell the house arising from clause 3(a) of the Will, therefore construing the Will as requiring him to hold the house until George’s death is inconsistent with that. He retains decision making control. Shamima has no part in the decision making process. Contingent rights cannot override his present rights.
3. To give Shamima a right to live in the property is contrary to George’s interests and the Trustee can take into account George’s wishes pursuant to clause 3 of the Will.
4. He has an absolute discretion pursuant to clause 17 of the Will.
5. The settled land issue is not raised in the originating motion, although he concedes that the formal rules of pleadings do not apply to originating motions. He concedes that clause 3(a) is a life tenancy, although perhaps not a ‘full’ life tenancy.
6. Phillip is prepared to assume, for the purpose only of this application, that the Property is ‘settled land’ under the Settled Land Act 1958 and there is a right to lease it. However, even if George has leased it, in part, he is no longer doing that because he no longer wishes for Shamima to reside there. Therefore Phillip does not concede that it is a settled land tenancy.
7. He has permitted George to use the Property, acquiescing to whatever arrangement is in place between George and Shamima. George has, in turn permitted Shamima and the children to live there. Phillip has no arrangements with Shamima. If the situation has a legal character, then either George has created a licence at will in which he allowed Shamima to exercise occupancy of the Property or acquiesced to her remaining against his will and Phillip then acquiesced.
8. He has permitted George to use the Property, acquiescing to whatever arrangement is in place between George and Shamima. George has, in turn permitted Shamima and the children to live there. Phillip has no arrangements with Shamima. If the situation has a legal character, then either George has created a licence at will in which he allowed Shamima to exercise occupancy of the Property or acquiesced to her remaining against his will and Phillip then acquiesced.
9. There is no evidence of any agreement between Shamima and George save for the alleged oral agreement that Shamima asserts. There is no evidence of any consideration paid in respect of such agreement. Nor are the elements of an equity of acquiescence satisfied.
Shamima key submissions are as follows. She emphasises that succession law proceedings are interest based.
1. An estate beneficiary has standing and she is a beneficiary on either or both of the following bases.
(a) A contingent interest pursuant to clause 3(b) of the Will. A beneficiary may institute proceedings to compel a Trustee to perform a duty. Shamima’s contingent interest is allied to her longstanding and current occupation of the Property pursuant to an oral contractual licence. In a suitable case, such a licence may be granted by the Court as a means of giving effect to an equity of acquiescence; and / or
(b) an interest because the Will gives her a personal right to live in the house during the lives of herself and George. This arises by way of interpretation of clause 3(a) of the Will and, with the addition of certain words. Sub-clause 3(a) should be construed as if the opening sentence reads:
To permit my son George Daicos, to live in the property (‘house’) during his lifetime together with his wife/domestic partner and children.
2. George has a clear obligation to pay repairs and it has nothing to do with the Trustee. The Trustee’s right to sell the Property only commences if there is ‘good reason’ to sell as per the other words in clause 3(a) of the Will.
3. George has an equitable life interest in the Property or substitute property, and not merely a personal right of interest. Indeed, George alleges in his affidavit that he has a life interest.
4. This application is superimposing a Will construction suit on a strike out application. If the Will needs to be construed, then a full hearing on merits should occur. This issue of whether Shamima has standing is however capable of being dealt with discretely.
5. The Settled Land Act 1958 submissions also mean that there is a complexity appropriate for a full hearing. The requirements of the Settled Land Act 1958 are satisfied, and Phillip is prepared to assume, for the application only, that the Property is ‘settled land’ within the meaning of the Settled Land Act 1958 and that there is a right of George to lease that land. George is either a tenant for life or a person who has the powers of a tenant for life in respect of the settlement. Reliance is placed on sections 12 and 16(1)(f) of the Settled Land Act 1958. A tenant for life, with the consent of Trustees or a Court Order, may lease settled residential land for no more than 21 years. Shamima relies on s 41 of the Settled Land Act 1958. A tenant may grant an occupation licence in respect of such settled land for similar terms. There is no need to make a finding about this in relation to this in the summary judgment application.
Consideration
Phillip has conceded that Shamima is a contingent beneficiary and I proceed upon that basis.
The declaratory relief sought by Shamima pursuant to the Will includes, importantly, the following. First, she says that clause 3(a) of the Will, properly interpreted permits her and George to live in the house during his lifetime and requires him to pay certain charges and keep the house in a reasonable state of repair. Secondly, she says that for other costs relating to the Property, payable by George pursuant to clause 4(d) of the Will, the Estate should pay those costs from the George Daicos Fund.
I do not consider that Phillip has established that Shamima has no real prospect of success on the basis she lacks standing in respect of the declaratory relief she seeks in the amended originating motion for the following reasons.
First, Shamima has a right, even as a contingent beneficiary, to seek a judicial direction under O 54. It is subject, of course, to the proceeding having merit.
The breadth and flexibility of r 54.02, discussed above, support a conclusion that Shamima, as a contingent beneficiary, has standing.
At this point, for completeness, I refer to Shamima’s alternative submission that the question of standing be deferred until the final hearing. I do not consider justice demands such a deferral. There were extensive written and oral submissions received by the parties and the issue is capable of being dealt with on a discreet basis. Further, such a deferral would be neither timely nor cost-effective.
Turning now to the next reason.
Secondly, Shamima’s right, or otherwise, to live at the Property is a matter appropriate for ventilation at a full hearing.
George has a life tenancy, although Phillip does not agree it is a ‘full’ life tenancy. It is conceded, for the purpose of the application that the Property is ‘settled land’ for the purpose of the Settled Land Act 1958. There is a legal and factual question as to whether or not Shamima has been given a occupation licence pursuant to that Act. As Phillip conceded, if that is the case, that is more appropriately ventilated at a full hearing.
George has acquiesced, by his own admission, to Shamima residing in the Property until recently. Phillip has also acquiesced to Shamima remaining in the Property. And she has remained in the Property. There are two issues which are more appropriately ventilated at a full hearing. Firstly, whether there is an oral agreement between George and Shamima that permits her to live at the Property. Secondly, whether there is an equity of acquiescence.
Shamima submits that clause 3(a) of the Will should be construed with certain words added giving her an express right to live in the house during George’s lifetime. It is not appropriate to determine construction of the Will on a summary judgment application. Phillip submitted that the construction was not palpable on the pleadings or pursuant to the Wills Act. However, as conceded, this proceeding is instituted by originating motion and does not require formal pleadings.[57] The question of whether or not the Will is ambiguous and whether the words should be implied into the Will as Shamima asserts, is an issue more appropriately ventilated at a full hearing.
[57]I will hear from the parties as to the further conduct of this matter to ensure proper identification of the real issues in dispute.
I cannot agree with Phillip’s assertion that he has an unfettered right to sell the house arising from clause 3(a) of the Will. The wording of that clause provides that he must have ‘good reason’ for doing so. However, this is an issue more appropriate for ventilation at a full hearing.
Thirdly, the question of whether Shamima can compel the estate to undertake the repairs and improvements to the Property is also more appropriately ventilated at full hearing. It will be impacted by the findings above, and also the construction of clauses 3(a) and 4(d) of the Will.
For completeness, I reject Phillip’s assertion that clause 17 of the Will gives him an absolute discretion and this should override any rights that Shamima has concerning the exercise of that discretion. As both parties agreed, the exercise of discretion by trustees is subject to various duties.
Turning now to the next issue.
Alternatively, is section 64 of the CPA applicable?
Section 64 provides:
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
In Manderson M & F Consulting (a firm) v Incitec Pivot Limited,[58] the Court of Appeal stated:
The complexity of the issue between the parties made this proceeding inappropriate for summary dismissal where the only basis for dismissal relied upon was an analysis of whether the applicants statement of claim properly defined the confidential information. The real contest was whether what the applicant had advanced as confidential information was of such a character. There will be cases in which cost and complexity may converge as a relevant factor justifying summary dismissal, but this is not such a case.
Finally, in the present case the discretion under s 64 was not invoked, or even considered. That is perhaps explained by the narrow scope of the inquiry undertaken. The introduction of s 63 as a basis for relief, and the claim for summary dismissal, led to an unfortunate conflation of the contest over the adequacy of the pleading to define confidential information and the prospects of success at trial. An analysis of the latter issue may well involve a consideration of the evidentiary foundation, whereas the former does not.[59]
[58](2011) 35 VR 98.
[59]Ibid, 108 [33] – [34].
Section 64 was not invoked by Shamima as she does not consider that her case has ‘no real prospect of success’. Indeed, I have found, above, that Phillip has not established that. Nevertheless, in the event that I am wrong on that issue, I consider that s 64 is applicable for the following reasons.
The proceeding is sufficiently complex, for the reasons above, to warrant it going to a full hearing.
I do not accept Phillip’s submission that because George is in transient accommodation, there is an interest of justice against going to trial. Phillip says that George is the primary beneficiary under the Will and is ousted from the Property for the time being. He has instructions to issue proceedings to take possession and have Shamima evicted once this application is determined. Further, Phillip says the construction of the Will is not before me.
As to George’s current living arrangements, there is no evidence as to why, after he has not lived at the Property for more than six years, they should be construed in favour of summary disposal of this proceeding.
As discussed above, the construction of the Will is more appropriately determined at trial.
Shamima has been living in the house for 26 years. She remains, under Australian law, married to George. She is in occupation of a Property in which her husband, George, admits he has a life interest.
Given both the factual and legal complexity, and the very serious potential consequences of summary dismissal to Shamima, it would not be in the interests of justice to dispose of this proceeding summarily.
Conclusion
The parties are requested to confer as to the appropriate form orders consequential to this ruling. If they are not agreed, they will be given the opportunity to make submissions.
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