Ellul v Green - [2018] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ELLUL & ORS v GREEN & ANOR
[2018] SASC 49
Judgment of Judge Bochner a Master of the Supreme Court
13 April 2018
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - GENERAL PRINCIPLES
When application for extension of time made - whether distribution occurred prior to an application for an extension of time.
Held
1. The summons filed on 10 July 2017 and served on 13 July 2017 was an application for an extension of time.
2. The amendment to the summons filed on 18 September 2017 had the effect of making the summons filed on 10 July 2017 an application for an extension of time.
3. Whether the summons was an application for an extension of time is an objective question and not to be answered by virtue of the understanding or belief of the defendants.
4. No part of the estate was distributed before any application for an extension of time.
Inheritance (Family Provision) Act 1972; Civil Aviation (Carrier’s Liability) Act 1959 (Cth), referred to.
Blunden v Blunden (2008) 258 LSJS 206; Waugh v Kippen (1986) 160 CLR 156; Bull v Attorney-General (NSW) (1913) 17 CLR 370; Adams v Lambert (2006) 228 CLR 409; Robinson v Robinson [2017] SASC 132; Yancic v Yancic [2010] SASC 335; Young v IOOF Australia Trustees Ltd (1995) 180 LSJS 302; Dawson v Fitch (2002) 84 SASR 20; Fitzgerald v Masters (1956) 95 CLR 420; Younan v Younan (No 2) [2015] VSC 549; Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield (2005) 223 CLR 251, considered.

ELLUL & ORS v GREEN & ANOR
[2018] SASC 49

Mary Ellul (the deceased) died on 18 September 2016. Probate of her will dated 4 February 2011 was granted on 12 January 2017 to Joan Annette Green and Josephine Mary Tommasini, the defendants in this matter, and daughters of the deceased.
The deceased had seven children, six of whom were living at the time of her death. By her will, she left a cash legacy of $1000 to four of those children. She left the residue of her estate (after the payment of funeral and testamentary expenses) to the defendants. In the statement of assets and liabilities lodged at the Probate Registry, the net value of the estate is estimated to be $282,884.73. The principal asset of the estate is an interest as the sole lessee of a property at Daw Park. The lease is due to expire on 19 December 2062. The property has an estimated value of $215,000.
On 10 April 2017, the plaintiffs’ solicitor put the defendants on notice of the potential of a claim by the plaintiffs. On 20 June 2017, the defendants’ solicitor advised the plaintiffs’ solicitor that he had instructions to accept service on their behalf.
On 10 July 2017, the plaintiffs (three of the deceased’s children who were left legacies of $1000) issued proceedings pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (the Act). Those proceedings were served on the solicitor for the defendants on 13 July 2017, one day outside the timeframe for the commencement of the proceeding provided for in the Act. The summons did not include an application for an extension of time within which to bring the claim.
On 14 July 2017, the executors took the following actions:
·They caused a transmission application to be lodged on their behalf at the Lands Titles Office in respect of the property;
·They caused cheques each in the sum of $1,000 to be drawn in favour of each of the beneficiaries receiving such a legacy;
·They caused to be transferred to each of themselves as residuary beneficiaries the sum of $11,387.79; and
·They caused an amount of $10,000 to be transferred to their solicitor’s trust account in relation to their estate dispute file to meet costs and disbursements. Of that $10,000, an amount of $4,976.54 was later transferred to pay costs and disbursements.
The defendants have conceded that at the time that they instructed their solicitor to take these steps, both they and their solicitor were aware of the service of the plaintiffs’ proceedings on the previous day.
At the time of hearing this matter, the sum of $5,023.46 remained in the defendants’ solicitor’s trust account. On 26 July 2017, the transfer was registered at the Lands Titles Office. On 28 July 2017, the plaintiffs served on the defendants’ solicitor an interlocutory application seeking an extension of time within which to commence the proceedings.
On 31 July 2017, the defendants’ solicitor wrote to the plaintiffs’ solicitor and advised that final distribution of the estate had occurred and that the plaintiffs’ proceedings had been commenced out of time. He invited the plaintiffs to discontinue their claim.
The parties now accept that final distribution has not occurred, however, the amount left in the estate is minimal.
It is the plaintiffs’ position that the application for an extension of time was effectively made on 13 July 2017, prior to the distribution of the majority of the estate. This occurred either by:
·The filing and service of the plaintiffs’ summons on 13 July 2017, in that the summons itself amounted to an application for an extension of time, despite not containing those words; or
·The filing of the amended summons on 18 September 2017, in which the order was specifically sought, on the basis that such an amendment takes effect from the date of the original filing of the document.
The parties have determined that this issue should be dealt with as a preliminary point, so as to avoid the unnecessary expenditure of legal costs in the event that the plaintiffs’ position is rejected and their application becomes otiose (given that only around $5,000 remains in the estate for distribution).
This trial, therefore, deals with the following questions which have been agreed between the parties:
1Whether the summons filed on 10 July 2017 and served on 13 July 2017 was an “application for extension of time” within the meaning of sub-s 8(4) and 8(5) of the Act.
2Whether the amendment to the summons by way of filing a second summons on 18 September 2017 had the effect of making the summons filed on 10 July 2017 and served on 13 July 2017 an “application for an extension of time” within the meaning of those provisions.
3Whether the summons filed on 10 July 2017 conveyed to the defendants that the plaintiffs made an application for extension of time under the Act.
4Whether any part of the estate was distributed before any application for extension of time within the meaning of sub-s 8(5) of the Act.
The legislative framework
Section 8 of the Act provides as follows:
(1)Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2)The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
(3)     An extension of time granted pursuant to this section may be granted—
(a)     upon such conditions as the Court thinks fit; and
(b)     whether or not the time for making an application pursuant to subsection (1) of this section has expired.
(4)An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5)Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
(6)An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
(7)Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.
The Act provides a time limit of six months within which to bring proceedings pursuant to it. By sub-s 8(6), an application is made only once it has been served. The Act allows for the Court to grant an extension of time within which to bring proceedings. However, an extension of time cannot be granted after final distribution. Even if an extension is granted, it cannot operate so as to disturb any distribution made prior to the application for the extension of time. In Blunden v Blunden,[1] Bleby J described the operation of the section in the following way:
[18] Section 8(1) of the Act requires that an application “shall not be heard by the Court” unless the application is made within six months from the date of the grant of probate in this State. The application was made outside that time. While the Court has power to extend time under s 8(2) of the Act, s 8(4) requires that an application for extension of time “shall be made” before the final distribution of the estate. The estate was finally distributed on 20 June 2008. It is therefore not possible for the Court to extend the time within which to bring the plaintiff’s application. The Court has no discretion to exercise in that regard.
[19] It does not matter that the final distribution took place before the expiry of the six-month period within which the application could have been brought without an extension of time. Whatever may be the consequences of distribution within that time in respect of an application brought after final distribution but within the six-month period, the Act is clear with respect to the bringing of an application for extension of time. It can only be made before final distribution of the estate, and if so made, cannot disturb any distribution made before the application is made.[2]
(citations omitted)
[1] (2008) 258 LSJS 206.
[2] (2008) 258 LSJS 206 at [18]-[19].
Thus, it becomes crucial to determine whether the plaintiffs made an application for an extension of time, one way or another, on 13 July 2017. If they did so, then the distributions made on 14 July 2017 may be disturbed by the Court, in the event that the Court grants an extension of time. If they did not, then the distributions made on 14 July 2017 cannot be disturbed.
The plaintiffs’ arguments
The plaintiffs’ first contention is that the summons served on 13 July 2017 in itself amounted to an application for an extension of time. The plaintiffs argue that because the Act does not prescribe any particular method of seeking an extension[3] and in particular does not say that the extension must be expressly sought, the usual principles of construction, in relation to both legislation and documents generally, should apply. In reliance on cases such as Waugh v Kippen[4] and Bull v Attorney-General (NSW),[5] they argued that the Act as a remedial one, should be given a beneficial interpretation:
In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn LC in Bist v London and South Western Railway Co). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.[6]
[3] And in fact they noted that the practice varies between practitioners.
[4] (1986) 160 CLR 156.
[5] (1913) 17 CLR 370.
[6] (1913) 17 CLR 370 at 384.
In addition, they relied on the following words of the High Court of Australia in Adams v Lambert:[7]
[21] In Wright v Australia & New Zealand Banking Group Ltd, Beaumont J pointed out that it is a well settled principle of construction that a written instrument must be construed as a whole, and that, as Dixon CJ and Fullagar J said in Fitzgerald v Masters, "[w]ords may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency".[8]
(citations omitted)
[7] (2006) 228 CLR 409.
[8] (2006) 228 CLR 409 at [21].
Thus, they argue that such an interpretation of both the legislation and the summons in question must lead to the conclusion that, construed objectively, the summons amounted to an application for an extension of time. Given that there is no specific requirement in the Act as to how an extension of time is to be sought, and given that, without reading the summons as containing an extension of time, the summons loses all utility, this application should be read into the summons.
The plaintiffs further argue that the very purpose of s 8 supports this interpretation. The purpose of the section is to provide certainty to executors in the performance of their duties, and protections when those duties are carried out in good faith. An almost inflexible time limit is set so as to achieve this end so that if they distribute an estate after the six month time period, they may do so with impunity as long as they do not have notice that a claim has been made. Any distribution of property after six months from the grant of probate, and in circumstances where the executors do not have notice of proceedings having been issued in relation to the estate, will not be disturbed by the Court. This allows executors to go about their business with confidence, and allows beneficiaries to take the assets of the estate to which they are entitled under the will, without fear that their actions will later be overturned by a court. However, if an executor distributes an estate, after he or she has notice, not just of a potential claim, but of proceedings having been issued and served, he or she does so at his or her own risk. Having accepted service of the claim, the executors thus have actual notice of the claim, and to suggest that they could then distribute the estate with impunity simply because of a failure to seek an extension of time would be an absurdity.
Finally, in relation to this ground, the plaintiffs say that, by including an open-ended plea for relief, in that they sought “such further or other Orders as this Honourable Court deems fit”, the plaintiffs have left open the ability to seek other relief as required. This would naturally include an extension of time, where the summons has been served out of time.
The plaintiffs’ second contention can be stated shortly, and relies on Rule 54 of the Supreme Court (Civil) Rules 2006, which provides:
(1)     A party may amend a document filed by the party.
(2)An amendment is made by filing in the Court the amended document on which the amendments are to be shown as follows—
(a)     material deleted from the previous version of the document is to be shown in erased type (that is, type through which a single line is drawn);
(b)     material not previously included is to be distinguished from material previously appearing in the document by underlining or by shaded type.
(3)A party who amends a document must serve copies of the amended document on all other parties as soon as practicable after the amendment is made.
(4)     An amendment may be made—
(a)     with the Court's permission; or
(b)     with the consent of all other parties; or
(c)     as authorised by subrule (5).
(5)A party is authorised to amend without the consent of the other parties or the Court's permission if—
(a)     the amendment is made within the period allowed for disclosure of documents or a further 14 calendar days from the end of that period; and
(b)     the party has not exercised the right to amend under this subrule on an earlier occasion.
(6)However, an amendment cannot be made without the Court's permission or the consent of the other parties if the effect of the amendment is—
(a)     to withdraw an admission; or
(b)     to add or substitute a cause of action that is statute barred; or
(c)     to introduce a defendant against whom a fresh action would be statute barred.
(7)The Court's power to grant permission for amendment under subrule (6) is subject to the following qualifications—
(a)     the Court may only grant permission for the addition or substitution of a cause of action that is statute barred if the new cause of action arises out of substantially the same facts as the original cause of action;
(b)     the Court may only grant permission for the introduction of a defendant against whom a fresh action would be statute barred if satisfied that the plaintiff's failure to joint the defendant arose from a genuine mistake.
(8)For the avoidance of doubt, nothing in this rule prevents the Court permitting an amendment to add a cause of action that is statute barred or introduce a defendant against whom a fresh action would be statute barred on the basis that that the amendment not relate back to the commencement of the action and the addition or introduction be subject to the subsequent granting of an extension of time under section 48 of the Limitations of Actions Act 1936 or other statutory power.
Note—
See Brook v Flinders University of South Australia (1988) 47 SASR 119.
(9)     The following documents cannot be amended under this rule—
(a)     an affidavit;
(b)     a judgment or order.
Pursuant to Rule 54, any party can amend once without leave, and such amendment takes effect from the date of the filing of the original document, unless the Court orders otherwise. Thus, the second summons, filed on 18 September 2017, took effect from the date of filing of the first summons, on 10 July 2017 and as a result, the request for the extension of time dates from that day.
Thus, the plaintiffs’ position is that, whether or not the documents before the Court amount to an application for an extension of time, is an objective question, to be determined on proper construction of those documents in the context of the Act and Rules. On that basis, they argue the third question posed should not be answered; the subjective view of the defendants is not relevant on this preliminary issue, however may become relevant when the Court is determining whether an extension of time should be granted.
The defendants’ arguments
The defendants’ position is that, because the majority of the estate has been distributed prior to their receiving an explicit application for an extension of time, the distributions that occurred on 14 July 2017 cannot be disturbed. They say that the first summons cannot be read as containing an implicit application for an extension of time, because at the time that it was filed, it was within time. Thus, at the time of filing, there can have been no intention on the part of the plaintiffs or their solicitors to seek an extension of time, as a result of which, such relief cannot be read into the document. The implicit application cannot come into existence only at the time of service.
In making this argument, the defendants relied on authorities such as Robinson v Robinson,[9] (Robinson) and Yancic v Yancic,[10] (Yancic) which make very clear a plaintiff’s obligation to comply with the Act. Any responsibility for failure to comply with the Act must lie with the plaintiff.
[9] [2017] SASC 132.
[10] [2010] SASC 335.
The defendants further argued that the position of executors and administrators would become untenable if they were forced to react to “implicit notice” as opposed to real notice. There must be a real form of relief sought, for the Court to be able to grant that relief. There was no real notice to the defendants of the plaintiffs’ application for an extension of time, and thus, they should not be required to infer one from the circumstances.

As to the application of Rule 54, the defendants say that Rule 54(6)(b) applies, and as a result, permission of the Court is required to amend, as the amendment purports to add a cause of action that is statute barred. In the circumstances of this case, such leave should not be granted.
Consideration
Does the summons filed on 10 July 2017 amount in itself to an application for an extension of time?
I am of the view that in the circumstances of this case, the summons filed on 10 July 2017 and served on 13 July 2017 amounted to an application for an extension of time. A beneficial interpretation of the Act, and of the documents filed by the plaintiffs should be adopted, in light of the ill that the Act was introduced to remedy. At the Second Reading Speech of the Inheritance (Family Provision) Bill, on 29 February 1972, the attorney-general introduced the Bill in the following way:
The general purpose of this legislation is to provide that, where a member of a deceased person’s family who has been left by the deceased, contrary to his legitimate expectation, without reasonable provision for maintenance, education or advancement in life, he may claim an allowance for those purposes out of the estate left by the deceased.[11]
[11] South Australia, Parliamentary Debates, House of Assembly, 29 February 1972, 3499-3500 (the Hon L J King, Attorney-General).
In Young v IOOF Australia Trustees Ltd,[12] Lander J discussed the nature of the Act. He said:
The policy of the legislation was identified and explained by Williams J, in Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 513.
"The Acts are remedial in character and `must be so construed as to give the most complete remedy which the phraseology will permit': Holmes v Permanent Trading Co of New South Wales Ltd (1932) 47 CLR 113 at 119. They are intended, at least partly, to service a public purpose by providing a means whereby indigent dependants of a testator who has left an estate sufficient to provide for their maintenance should not become a charge on the public purse. The right to make an application is created in the public interest and is not one that can be contracted out of: Dillon v Public Trustee of New Zealand [1941] AC 294; Liberman v Morris (1944) 69 CLR 69."
The purpose of the legislation was explained by Barwick CJ, Mason and Murphy JJ in Easterbrook v Young (1977) 136 CLR 308 at 320: "The dominant purpose of this legislation is to enable the court, in a sense, to prevent the operation of the will according to its terms in an appropriate case. It is because the will is operating unduly or unjustly in relation to the testator's family that the court is empowered to order maintenance, its order operating as a codicil to change the terms of the will and have them operate in a way different to that expressed by the testator."
The Court is obliged, of course, in the construction of the legislation not to strain the plain language of the statute. However, if there is an ambiguity, the statute should be construed beneficially so as to give the most appropriate and fullest benefit, having regard to the purposes of the legislation.
[12] (1995) 180 LSJS 302.
The remedial nature of the legislation was further reiterated by Lander J in Dawson v Fitch,[13] where he said, in relation to s 8 of the Act:
[30] Where an application is brought outside the time provided for in s 8 of the Act but where an extension of time has been granted, the Court cannot order provision in favour of the applicant from that part of the estate which was distributed before the extension of time was granted.
[31] In the latter case the Court’s power to make provision out of the estate is limited by s 8(5) which provides:
(5)Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
[32] In construing this legislation it has to be remembered that it is remedial in character and “must be construed as to give the most complete remedy which the phraseology will permit”: Holmes v Permanent Trading Co Of New South Wales Ltd (1932) 47 CLR 113 at 119.
[33] The legislation has a public purpose and public interest. The public purpose is to provide for the maintenance of indigent dependents of the testator who should have otherwise have been provided for in the testator’s will. It is in the public interest to provide such a right to make an application: Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 at 513.[14]
[13] (2002) 84 SASR 20.
[14] (2002) 84 SASR 20 at [30]-[34].
Not to imply an application for an extension of time, into a summons which would otherwise be rendered otiose, would fail to “give the most complete remedy which the phraseology will permit”. The purpose of s 8(4) and (5) has been fulfilled; the executor has received notice, not just that a claim is contemplated, but that one has actually been filed and served. To require a specific plea for an extension of time, in circumstances where the claim would be rendered pointless without it, would be to detract from the remedial purpose of the legislation. A beneficial reading of the Act, given that it does not prescribe a method for seeking an extension of time, would not preclude such an application for an extension being made simply by the “making”[15] of the claim out of time.
[15] That is, filing and service.
In Fitzgerald v Masters,[16] the plaintiff/respondent sought to enforce a contract for the sale and purchase of land which contained the following clause:
The usual conditions of sale in use or approved of by the Real Estate Institute of New South Wales relating to sales by private contract of lands held under the Crown Lands Act shall so far as they are inconsistent (sic.) herewith be deemed to be embodied herein.[17]
[16] (1956) 95 CLR 420.
[17] (1956) 95 CLR 420 at 426.
The defendant/appellant sought to argue, amongst other things, as a result of this clause, the terms of the contract were so uncertain as to be unenforceable. Dixon CJ and Fullagar J said:
There is a superficial difficulty in cl 8, because it purports to incorporate a set of conditions so far as they are inconsistent with what has been specifically agreed upon. No real difficulty, however, is created. Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency. Here it would be indeed absurd to suppose that the parties, having expressed their agreement on a number of special and essential matters, should intend to incorporate by reference terms inconsistent with what they had specially agreed upon. What they must clearly have intended is to incorporate a set of general conditions except so far as they were inconsistent with what they had specially agreed upon, and cl 8 must be read as if it said "consistent" or "not inconsistent".[18]
[18] (1956) 95 CLR 420 at 426-427.
On the basis of this reasoning, the High Court found that clause should be read as the parties intended, to avoid absurdity.
In my view, the same reasoning should apply here. To give efficacy to the action filed, “words may be supplied” to the prayer for relief, so as to include an application for an extension of time. To do otherwise would render the action futile. Nor does it do injustice to the defendants. They did not distribute the estate without notice of the claim being made. They distributed the estate, having been served with the claim, but took advantage of the omission of specific prayer for relief, seeking an extension of time.
I am of the view that the authorities of Robinson and Yancic do not assist the defendants. In Robinson, the estate was fully distributed before the executor had notice of any claim, and well before proceedings were issued and served. Similarly, in Yancic, the executors distributed the major asset of the estate prior to notice of a claim, but within six months of the grant of probate. The plaintiff then failed to serve the defendants with the proceedings within the six month period required by the Act, although he sought to serve the defendants’ solicitor within the time period, while well aware that the solicitor did not have instructions to accept service. Thus, the plaintiff sought an order for presumptive service on the solicitor nunc pro tunc, so as to allow the Court to disturb the distribution of assets that occurred prior to the expiration of the limitation period. The Court declined to do this, and said the following:
[30] The plaintiff has had to bring the application because of a combination of two things: first, the distribution of the majority of the estate some seven weeks after the grant of probate by the administrators to themselves as beneficiaries without reference to, or notice of a claim from, the plaintiff; and, second, the failure on the part of the plaintiff to effect personal service on the defendants of the proceedings prior to the expiry of the relevant six month period. The reality of the orders sought by the plaintiff in this regard is that, if made, personal service would be dispensed with and the actions of Mr Chambers on 20 August 2010 at Mr Fabbro’s office would be deemed as sufficient service on the defendants.
[31] In my opinion, when the application of the plaintiff is characterised in this manner, it is clearly evident that no such orders should be made. In particular, where, as in this case, the solicitor acting for the defendants has stated in plain terms that he has been unable to obtain instructions to accept service, it would be quite inappropriate now to deem the actions of Mr Chambers (leaving the papers at Mr Fabbro’s office) as comprising sufficient service on the defendants. What has caused the difficulty of the plaintiff is the last minute attempt at service. The plaintiff could have issued proceedings and sought to serve them at a much earlier stage.
[32] To the extent that the plaintiff relies upon any delay on the part of the defendants’ solicitor in responding to the plaintiff’s solicitor’s letter of 13 June 2010, I consider such reliance to be ill-founded. It is always the plaintiff’s obligation to comply with clear statutory requirements as to the making of a claim. Subsection 8(6) of the Act makes it clear the application is not made until the summons is served upon the administrator. In those circumstances, I consider it would be a wrongful exercise of the discretion to make an order deeming the leaving of the papers at Mr Fabbro’s office in the circumstances deposed to by Mr Chambers as being sufficient service. The papers were left at Mr Fabbro’s office by Mr Chambers in the face of the clear opposition to that course demonstrated by Mr Fabbro. To somehow convert that into an effective method of service is, in my opinion, not warranted.
With respect, Judge Burley was entirely correct in the decision that he reached. It simply does not apply to this matter. Yancic was a case where there was no service on the defendants. In this matter, the defendants had been served with the proceedings prior to distribution. They were not distributing without notice.
Similarly, the case of Younan v Younan (No 2),[19] referred to by the defendants in their list of authorities, does not assist them. In that case, while the plaintiff had put the executors on notice of her intention to bring a claim, the estate was distributed prior to the expiration of the time limit for the bringing of proceedings. The plaintiff failed to issue and serve her claim within time. The Court declined to extend the time for the plaintiff to bring her application, because the estate had been fully distributed. The Court emphasised that, had the plaintiff’s application been brought within time, the Court would have had the liberty, if appropriate, to disturb the distributions made during the six month period.[20]
[19] [2015] VSC 549.
[20] [2015] VSC 549 at [30].
This is very different to the case before me where there was no distribution of the estate prior to service of proceedings. Distribution occurred entirely after service of the proceedings.
This is a problem that the executors have brought on themselves. If they had distributed the estate on 14 July 2017, and then been served with the plaintiff’s summons on 15 July 2017, while I would reach the view that the summons contained an implicit application for an extension of time, the consequences for the defendants would be minimal. They would have distributed the estate without notice of the claim and so would be entitled to the protections afforded them by s 8.
What of the defendants’ argument that there can be no implicit application to extend, because at the time of filing the matter was within time? This argument is clearly defective. By virtue of s 8(6), the date of service of the summons, not its date of filing, is the relevant date to determine whether a matter has been brought within time. Thus it is the state of affairs at the date of service that is relevant.
Does Rule 54 operate so as to give retrospective effect to the second summons filed on 18 September 2017?
The argument of the defendants can be disposed of quickly. Rule 54(6)(b) does not apply, because, contrary to their submissions, the amendment made by the document does not add or substitute a new cause of action, statute barred or otherwise. The amendment simply adds an additional prayer for relief, that is, the order for the extension of time. The same cause of action that is relied on in the first summons is relied on in the second summons; it simply makes an overt acknowledgement that an extension of time is required. The amendment does not bring the application within time; it simply articulates the need for the extension.
I am of the view that, in the present circumstances, Rule 54 does operate so as to give a retrospective effect to the second summons, thus making the amendment operate from 13 July 2017.
In Agtrack (NT) Pty Ltd (t/as Spring Air) v Hatfield,[21] the High Court considered the effect of a late amendment to a summons and statement of claim. In that matter, the plaintiff issued against the defendant following the death of her husband in an aviation accident, to which the Civil Aviation (Carrier’s Liability) Act 1959 (Cth) (the CACL Act) applied. Under the CACL Act, liability for the death of a passenger is imposed on the carrier, in substitution for any civil liability which might otherwise apply. The CACL Act imposes a limitation period of two years. The plaintiff, in her statement of claim, omitted any mention of the Act. Her claim was brought within time. After the expiration of the time limit, the plaintiff was given leave to amend her statement of claim so as to invoke the CACL Act. This was appealed by the defendant, on the basis that it allowed the introduction of a cause of action which was statute barred. The Court said:
[42] … within the two year period, Mrs Hatfield had brought an action in exercise of her right to damages under Pt IV. She was the widow of a passenger who had died as the result of an aircraft accident. She claimed to have suffered damage by reason of the passenger's death and claimed damages from the carrier. The facts alleged in the pleadings showed that Pt IV applied.
[43] Contrary to the submissions by Spring Air, it is unnecessary to show that within this period Mrs Hatfield had it in her mind, or her lawyers had it in their minds, that they were proceeding under Pt IV. Nor was it a requirement for compliance with s 34 that the Statement of Claim aver reliance upon Pt IV. Allegations that went beyond what was required to comply with s 34 were surplusage. The surplusage was liable to removal under procedural provisions picked up by s 79 of the Judiciary Act, but that did not deny that s 34 had been satisfied.[22]
[21] (2005) 223 CLR 251.
[22] (2005) 223 CLR 251 at [42]-[43].
As a result of this reasoning, the Court allowed the amendment to operate from the date of the filing of the original summons and statement of claim. Because the facts as pleaded brought the matter squarely within the ambit of the CACL Act, and because the CACL Act did not require specific invocation of it in the summons and statement of claim, the amendments were allowed to act retrospectively. The Court did not consider that addition of the express reliance on the CACL Act, previously omitted, amounted to the addition of a fresh cause of action, because the facts as alleged in the statement of claim clearly brought the matter within the CACL Act.
Similarly, the Act does not specify how an application for an extension of time must be made. The facts as pleaded by the plaintiffs in their affidavits in lieu of statements of claim make it clear that their application is made on the basis of a grant of probate made on 12 January 2017. It is obvious that any application made more than six months after this date would require an extension of time. Thus the retrospective operation of the amendment should be allowed as it is clearly contemplated in the documents as originally filed.
Did the summons filed on 10 July 2017 conveyed to the defendants that the plaintiffs made an application for extension of time under the Act?
I decline to answer this question as in my view, the subjective view of the defendants is not relevant. The objective construction of the summons in the context of the Act is the only relevant question.
Was any part of the estate distributed before any application for extension of time within the meaning of sub-s 8(5) of the Act?
In light of my answers to questions 1 and 2, I conclude that distribution occurred after service of the application for an extension of time.
The questions posed by the parties must be answered as follows:
1The summons filed on 10 July 2017 and served on 13 July 2017 was an application for an extension of time.
2The amendment to the summons filed on 18 September 2017 had the effect of making the summons filed on 10 July 2017 an application for an extension of time.
3This question should not be answered. Whether the summons was an application for an extension of time is an objective question and not to be answered by virtue of the understanding or belief of the defendants.
4No part of the estate was distributed before any application for an extension of time.
I will hear the parties on the question of costs.