Davies v Davies & Anor (No 1)

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SUPREME COURT OF QUEENSLAND

CITATION:

Davies v Davies & Anor (No 1) [2019] QSC 293

PARTIES:

BEVAN ROY DAVIES as Executor of the Estate of ALAN DOUGLAS DAVIES

(applicant)

v
JEANNE LORRAINE DAVIES as Executor of the Estate of NEVILLE BRIAN DAVIES

(first respondent)
MICHAEL DOUGLAS DAVIES in his personal capacity and as Executor of the Estate of ALAN DOUGLAS DAVIES
ELAINE JAN LOUISE FISHER
(second respondents)

FILE NO:

BS No 13463 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

29 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2019

JUDGE:

Bradley J

ORDER:

1.   The application filed 31 October 2019 is dismissed.

2.   Leave to withdraw the admission made in paragraph 1 of the document “Matters not in Issue” filed on 14 October 2019 is refused.

3.   The second respondents are to pay the applicant’s costs of and incidental to the application on the indemnity basis.

4.   The first-named second respondent Michael Douglas Davies is not entitled to an indemnity from the deceased’s estate for the costs ordered to be paid to the applicant or for his own costs of the application.

EVIDENCE – ADDUCING EVIDENCE – COURSE OF EVIDENCE – RE-OPENING CASE – BY PARTY –  where, after the trial in the proceeding had concluded and judgment had been reserved, the second respondents applied to adduce further evidence – where the application is opposed – whether exceptional circumstances justifying re-opening are demonstrated

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ADMISSIONS – WITHDRAWAL – where the second respondents seek leave to withdraw an admission made prior to trial – where the admission was made in a list of “Matters not in Issue”, signed by the solicitors for each party and filed in the court – where the second respondents allege the admission was made by mistake – where no evidence was adduced as to how the alleged mistake was made – whether leave ought to be granted to withdraw the admission

AON Risk Services Aust Ltd v Australian National University (2009) 239 CLR 175, cited
Bailey v Marinoff (1971) 125 CLR 529, cited
Bendigo and Adelaide Bank Ltd v Clout (No 2) [2016] FCA 561, cited
FYD Investments Pty Ltd v Promptair Pty Ltd [2017] FCA 1097, cited
Green & Ors v Pearson [2014] QCA 110, cited

Hamilton v Oades (1989) 166 CLR 486, cited
Hansen Construction Materials Pty Ltd v Davey (2010) 79 ACSR 668; [2010] QCA 246, applied
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, cited
Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors [2019] QCA 77, applied
Spotlight Pty Ltd v NCON Australia Ltd (2012) 46 VR 1, cited
Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd (No 5) [2019] WASC 310, cited

COUNSEL:

R T Whiteford for the applicant

A C Barlow for the second respondents

SOLICITORS:

Morton & Morton Solicitors for the applicant

Carswell & Company…

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Details
Case
[2019] QSC 293
Decision Date

CaseChat Overview and Summary

The proceeding in Davies v Davies & Anor (No 1) involved an application for leave to withdraw an admission regarding the disposition of certain assets under a will. The dispute centered on whether specific items, including dinghies, a jet boat, and a fishing trawler named Ajax, should pass to Neville’s estate as a gift or form part of the residue of the deceased’s estate. The court had to determine the proper construction of the will clauses related to these assets. Prior to the trial, the parties agreed that the dinghies, jet boat, and Ajax would pass to Neville, leaving only the disposition of a commercial fishing boat licence in contention.

The legal issues before the court included whether the second respondents could withdraw the earlier admission about the assets and whether they could present additional evidence regarding the commercial viability of the Ajax and the use of the fishing licence. The court examined the submissions and affidavits presented, finding that the second respondents’ arguments were factually incorrect and misstated the legal issue. The court concluded that the application for leave to withdraw the admission was without merit and that the application to adduce additional evidence was misconceived and prejudicial.

The court refused to grant leave to withdraw the admission, emphasizing that the trial had proceeded on the basis of the admission. Allowing the withdrawal would result in further delay and costs. The court also dismissed the application to adduce additional evidence, noting that it would have diminished the estate’s residue to the detriment of all beneficiaries. Costs were awarded to the applicant on an indemnity basis, and Michael Davies was not entitled to an indemnity from the deceased’s estate for those costs or his own costs of the application. The court held that the second respondents’ conduct fell below the expected standard for legally represented parties.

Orders

Orders of the court

1. The application filed 31 October 2019 is dismissed.

2. Leave to withdraw the admission made in paragraph 1 of the document “Matters not in Issue” filed on 14 October 2019 is refused.

3. The second respondents are to pay the applicant’s costs of and incidental to the application on the indemnity basis.

4. The first-named second respondent Michael Douglas Davies is not entitled to an indemnity from the deceased’s estate for the costs ordered to be paid to the applicant or for his own costs of the application.

Background

Background to the litigation

No application for leave to withdraw an admission was filed by the second respondents. The matters came before the court in a rather circuitous way. Background The proceeding was commenced by an originating application. No pleadings were directed or exchanged. However, the relief sought by the applicants indicated the scope of the dispute extended to whether five dinghies, a jet boat and a 37 foot fishing trawler, named Ajax, should pass to Neville’s estate as a gift under clause 4.03 of the will or form part of the residue of the deceased’s estate and pass to the four surviving children of the deceased under clause 4.05. Prior to the trial, the parties agreed that the dinghies, the jet boat and the Ajax should pass to Neville under clause 4.03. These were the only matters the parties agreed were not in issue. The agreement was evidenced by the solicitors for the second respondent signing a document to that effect and sending it to the solicitors for the applicant on 9 September 2019. The second respondents’ solicitors signed another such document to be filed in court and sent it to the applicant’s solicitors on 25 September 2019. This second document was signed by the solicitors for each of the other parties and filed on 14 October 2019. Under the heading “Matters not in Issue”, the parties listed only one paragraph. By reference to the paragraphs in the originating application, they notified the court that it was not in issue that the dinghies, the jet boat and the Ajax pass to Neville under clause 4.03 of the will. Under the heading “Matters in Issue”, the document recorded that only the disposition of the commercial fishing boat licence was in issue. I infer that the document was filed in compliance with an order made by the resolution registrar on 19 September 2019, which required the parties to file “an agreed list of the matters in issue and the matters not in issue” in the proceeding. At the commencement of the trial, counsel for the second respondents, Mr Barlow, informed the court that his instructions were that the fate of the jet boat and the dinghies was not as earlier agreed. When his attention was drawn to the signed document on the court file, Mr Barlow told the court he would take the matter up with the applicant’s counsel Mr Whiteford “in the break.” There was a short adjournment between 10:45 am and 11:09 am, to facilitate the taking of evidence by video. When court resumed the last of the applicant’s witnesses gave evidence. The second respondents accepted certain objections made to their evidence, redacted copies of their witness affidavits were tendered and none of their witnesses was required for cross-examination. The parties closed their cases and then counsel addressed the court. In his closing address, Mr Whiteford said the jet boat and the dinghies were “no longer in dispute”, but asked the court to make a declaration that they pass under clause 4.03 of the will to Jeanne Davis on the basis that “it has been a troubled administration as is evident from us coming before you today”.

Evidence

Evidence Before The Court

The proposed further evidence was presented in the form of the affidavit of Michael Davies filed with the application. The second respondents conceded a number of the applicant’s objections to parts of the affidavit and others were ruled upon by the court. Leaving aside fact-free, purely argumentative statements, the only remaining parts of the affidavit were the following: “5.The following is relevant to that question:(a)When my father retired in 2005 he disbanded his fishing business and became a recreational fisherman, only;(d)[At the time my father made his 2010 will, the Ajax] could not and did not operate commercially.(e)In fact, to my knowledge, my father’s fishing licence had been leased to another commercial fisherman from 2005 to 2014;9.In the rest and residue of the Estate, there is also a block of land located in Boonooroo which was valued at approximately $230,000.00 two and a half years ago.”Submissions on leave to adduce additional evidence The application for leave was heard on 19 November 2019. The second respondents were represented by Mr Barlow of counsel, who relied on written submissions.[8] [8]Oddly, the written submissions are dated 15 October 2019. The only explanation for the failure to adduce the further evidence at the trial may be found in the following passages from the written submissions:“whether or not the beneficiary (Neville) of “the Ajax’ (37 ft fishing trawler) would or could have considered using the Ajax in conjunction with the deceased fishing licence was not a matter previously raised as a means of determining the meaning of the words “fishing gear”.… the second Respondent’s … understanding of the law indicates the licence could not have been associated with the Ajax, (thus not a consideration when construing the words “fishing gear”) because the Ajax was not commercially viable in or about 2014/2015 (around the time of Mr Davies’ death).” These submissions were reinforced by Michael Davies’ affidavit, in which he swore: “the question of whether or not brother Neville could utilise my father’s fishing licence was not raised on previous material, and consequently was not the subject of evidence given by me or others.”Consideration of the submissions There are four difficulties with the second respondents’ submissions. Firstly, the submissions are factually incorrect. The use of the Ajax in conjunction with the licence was raised in three paragraphs of the affidavit of Mr Williamson, which was filed on 6 December 2018, more than ten months before the trial. At the trial, the second respondents’ counsel cross-examined Mr Williamson about that topic. It was also raised in the affidavit of Mr Bevan Davies, filed on 11 March 2019, about seven months before the trial. On 11 October 2019, six days before the trial, the applicant served his written submissions. In these, the applicant contended that the second respondents’ interpretation of the will made “little sense” because it would require the court to find:“the deceased’s intention was:(a)to give Neville sole ownership of equipment to work as a commercial fisherman, but not sole ownership of the licence which would allow him to use that equipment to do so; (b)to give all four of his children ownership of the licence to work as commercial fishers but only one of them ownership of equipment to do so.”

Decision

Reasons for decision

The prejudice to the applicant is obvious. The trial was conducted and closing addresses delivered expressly on the basis of the admission. If leave were granted to withdraw the admission, the court would be left with no submissions from any of the parties about the topic. There would have to be a further hearing or opportunity for the parties to address the court about the fate of the jet boat and dinghies. This would involve further delay and costs. Conclusion on withdrawal of the admission The second respondents have not shown that a grant of leave would be in the interests of justice or that they would suffer an injustice if leave were refused. The objective of avoiding undue delay and expense and facilitating the just and expeditious resolution of the real issues at a minimum of expense is better served by the refusal of the application. The court should refuse leave to withdraw the admission. Costs The application to adduce additional evidence was wholly misconceived and never had any prospect of succeeding. It ought never to have been made. The cost of responding to it diminished the residue of the deceased’s estate to the detriment of all four beneficiaries. The second respondents should pay the applicant’s costs of the application on the indemnity basis to minimise the adverse effect on the beneficiaries as a whole. Insofar as Michael Davies is concerned, he should not be entitled to an indemnity from the deceased’s estate for those costs or for his own costs of the application. The application cannot be said to have been brought in the interests of the administration of the estate. The second respondents’ conduct in respect of the withdrawal of the admission fell far below the standard to be reasonably expected from legally represented parties in this court. To the extent that any costs of or incidental to the second respondents’ application were incurred in relation to the proposed withdrawal of the admission, those costs should be awarded in the same manner as those in relation to the application to adduce additional evidence.

Ratio Decidendi

Legal Principle Established

These submissions were reinforced by Michael Davies’ affidavit, in which he swore: “the question of whether or not brother Neville could utilise my father’s fishing licence was not raised on previous material, and consequently was not the subject of evidence given by me or others.”Consideration of the submissions There are four difficulties with the second respondents’ submissions. Firstly, the submissions are factually incorrect. The use of the Ajax in conjunction with the licence was raised in three paragraphs of the affidavit of Mr Williamson, which was filed on 6 December 2018, more than ten months before the trial. At the trial, the second respondents’ counsel cross-examined Mr Williamson about that topic. It was also raised in the affidavit of Mr Bevan Davies, filed on 11 March 2019, about seven months before the trial. On 11 October 2019, six days before the trial, the applicant served his written submissions. In these, the applicant contended that the second respondents’ interpretation of the will made “little sense” because it would require the court to find:“the deceased’s intention was:(a)to give Neville sole ownership of equipment to work as a commercial fisherman, but not sole ownership of the licence which would allow him to use that equipment to do so; (b)to give all four of his children ownership of the licence to work as commercial fishers but only one of them ownership of equipment to do so.” Secondly, the respondents’ understanding of the law, for what it may be worth, is also incorrect. The Ajax is the primary boat identified, by name, boat mark and length, in the licence. The licence allows the holder to use the Ajax to take fish for trade or commerce in any of the commercial fisheries noted on the licence.[9] It allows the licence holder to use a tender boat – at the same time as the Ajax or independently of the Ajax – to take fish for trade or commerce in commercial fisheries L1 and L3.[10] It allows the licence holder to sell fish taken using the licence and to process such fish.[11] It allows the licence holder to buy, sell or possess commercial fishing apparatus.[12] It also allows the licence holder to authorise someone else to do any of these things.[13] [9]Fisheries Regulation 2008 (Qld), s 246(1)(a).[10]s 246(1)(b), (c).[11]s 246(1)(e), (f).[12]s 246(1)(g).[13]s 246(1)(h). It allows only a commercial fisher to use the Ajax.[14] It allows the Ajax to be used in any of the commercial fisheries noted on the licence.[15] It allows the tender boats for the Ajax – the jet boat and the dinghies – to be used in a commercial fishery the subject of the licence.[16] [14]s 247(2).[15]s 247(3).[16]s 247(6). Thirdly, the commercial viability of the Ajax in 2014 or 2015 is not relevant to any matter in issue in the proceeding. The only evidence admissible in aid of the interpretation of the will is evidence of the deceased’s intentions at about the time he made the will, in January 2010. Finally, the submissions misstate the issue for determination by the court. The actual issue is the proper construction of clause 4.03 of the will, in light of the evidence of the deceased’s intentions at the time he made the will. It is not confined to determining the meaning of “fishing gear”.