Eugenius Sunny Willison by next friend Maria Beatrix Irmayanti v Clayton William Hollingsworth in his capacity as Executor of the Will of Kim Robert Willison
[2019] WASC 392
•30 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: EUGENIUS SUNNY WILLISON by next friend MARIA BEATRIX IRMAYANTI -v- CLAYTON WILLIAM HOLLINGSWORTH in his capacity as EXECUTOR OF THE WILL OF KIM ROBERT WILLISON [2019] WASC 392
CORAM: MASTER SANDERSON
HEARD: 12 SEPTEMBER 2019
DELIVERED : 12 SEPTEMBER 2019
PUBLISHED : 30 OCTOBER 2019
FILE NO/S: CIV 3079 of 2017
BETWEEN: EUGENIUS SUNNY WILLISON by next friend MARIA BEATRIX IRMAYANTI
Plaintiff
AND
CLAYTON WILLIAM HOLLINGSWORTH in his capacity as EXECUTOR OF THE WILL OF KIM ROBERT WILLISON
Defendant
Catchwords:
Practice and procedure - Defendants application for summary judgment - Turns on own facts
Legislation:
Nil
Result:
Summary judgment granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr R Singh |
| Defendant | : | Mr A P Hershowitz |
Solicitors:
| Plaintiff | : | Chapmans Barristers & Solicitors |
| Defendant | : | Jackson McDonald |
Case(s) referred to in decision(s):
Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994)
MASTER SANDERSON:
At the hearing of this application I granted summary judgment in favour of the defendant. I indicated that I would publish written reasons for that decision. These are those reasons.
This action was commenced in December 2017. A statement of claim was lodged on 21 March 2019 and on 27 May 2019 the defendant issued a chamber summons seeking summary judgment or in the alternative, an order striking out the plaintiff's statement of claim.
At a hearing on 5 August 2019 I struck out the plaintiff's statement of claim and gave leave to replead. I adjourned the defendant's application for summary judgment to a further hearing. A substituted statement of claim was lodged on 19 August 2019. The defendant maintained the substituted statement of claim still disclosed no cause of action. I accepted the defendant's submissions on this question and on that basis I entered judgment.
The starting point in any application for summary judgment by a defendant is the statement of claim. As counsel for the defendant said in his submissions[1] it is not for the court to identify causes of action which are not pleaded but which the evidence might arguably support: see Forsayth NL v Northern Gold NL (Unreported, WASCA, Library No 940012, 20 January 1994). For its part the defendant accepted that in considering the summary judgment application the version of the facts pleaded by the plaintiff must be accepted. There was no dispute between the parties as to the applicable principles.
[1] Defendant's submissions filed 10 July 2019 par 16.
The substituted statement of claim repeats many of the faults of its predecessor. It is an unhappy amalgam of facts and evidence all mixed in with what are really submissions. There is no point in attempting to go through the statement of claim line by line. In pars 1 through to 12 of his written submissions, counsel for the defendant set out what he submitted was the substratum of fact which could be drawn from both the original statement of claim and the substituted statement of claim. The summary of the claim which follows is largely taken from those submissions.
Kim Robert Willison (the deceased) died while living in Bali on 17 April 2011. The deceased left assets in Australia, Indonesia and Singapore. Taken together these assets are referred to as the deceased's 'estate'. Difficulties arose with various wills signed by the deceased and the executors were uncertain whether the wills were valid in Indonesia or Australia. They were also unsure where probate should be sought – that is, whether in Indonesia or Australia – and they were also uncertain as to how to go about resealing the grant of probate in Singapore. The defendant's solicitors were Jackson McDonald. On instructions they engaged an Indonesian law firm styled Austrindo. Austrindo were to advise on the validity of the Indonesian will. Without going into detail Austrindo provided inconsistent advice to the defendant and considerable time was taken up in resolving that conflicting advice and taking steps to obtain probate. In support of this application the defendant relied on his affidavit sworn 27 May 2019. At pars 25 through to 34 of his affidavit the defendant sets out the correspondence passing between Jackson McDonald and Austrindo and highlights the difficulty in understanding precisely what advice Austrindo was offering. Eventually the position was sufficiently clear for the defendant to instruct Jackson McDonald to apply for probate in Western Australia. This was done on 5 October 2012.
Perhaps not surprisingly the probate office issued numerous requisitions in relation to the will. The questions were complex and responses took time. Eventually probate was granted to the defendant on 20 March 2013.
The plaintiff is one of three sons of the deceased and is a beneficiary under the will. The plaintiff commenced these proceedings asserting the defendant failed to act in the best interests of the beneficiaries and breached his fiduciary duty owed to the plaintiff. As I understand the substituted statement of claim the plaintiff says the defendant breached his fiduciary duties in first, failing to obtain a grant of probate in a timely manner. Second, by not taking reasonable steps to sell shares held by the estate. Third, by failing to reseal the grant of probate in Singapore in a timely manner. Four, in failing to manage the estate assets in a responsible, methodical and prudent manner. Five, in failing to cease acting as executor after having knowledge of criminal and civil investigations in Italy against himself and the deceased due to a conflict of interest. Six, in failing to ensure all matters relating to the estate were dealt with in a timely manner so the estate monies were distributed to the beneficiaries as soon as practicable. Finally, he committed a devastavit. These alleged breaches of fiduciary duty are provided as particulars to par 107 of the substituted statement of claim.
The defendant says he has provided a full explanation of events leading up to the grant of probate and his administration of the estate since the time of his appointment as executor. It is difficult to see how the defendant owed any fiduciary duty to the plaintiff prior to the defendant's appointment as executor. If such a fiduciary duty did exist it does not fall into one of the readily recognisable categories such as agent and principal where a fiduciary duty is axiomatic. The plaintiff would need to plead material facts to establish that in the circumstances of this case a fiduciary duty did arise. No such material facts are pleaded. This aspect of the claim could not be made out.
At the heart of the plaintiff's complaints about the defendant's administration of the estate is his dealings with shares held in HSBC Bank and owned by the estate. Between pars 43 and 55 of his affidavit, the defendant explains his dealings with the HSBC shares. In summary, the position is as follows.
On 20 March 2013 Jackson McDonald enquired of HSBC what shares were held in the portfolio and whether the grant of probate had to be resealed in Singapore before the defendant could deal with those shares. On 4 April 2013 HSBC advised a reseal was required. Singapore solicitors were instructed. The matter was not entirely straightforward and in par 44 of his affidavit the defendant sets out the steps that were taken. On 19 August 2013 the Western Australian grant of probate was resealed by the High Court of Singapore. There is nothing in the evidence to suggest any steps could have been taken to obtain the reseal earlier than it was obtained.
The HSBC share portfolio comprised of six different tranches of shares. There was also a loan facility attached to the HSBC share account. The defendant says he was aware between the date of death of the deceased and the reseal of the probate in Singapore the value of the HSBC share portfolio was decreasing. But there was nothing that he could do prior to the reseal.
Having obtained the reseal the defendant considered his position. One of the assets – the shares in Alkane Resources – had fallen considerably in value between the date of death of the deceased and the grant of the reseal. The defendant decided to retain ownership of these shares for a number of reasons. Whatever the wisdom of that decision it was a judgment made by the defendant in the exercise of his office of executor and is not on the facts to be criticised. It may be the decision was questionable in a commercial sense. But there is nothing in the evidence to suggest taking that decision in some way breached the fiduciary duty owed by the defendant to the estate. No material facts are pleaded which could give rise to such a duty let alone to a breach of that duty.
Eventually the defendant decided to sell all of the shares except for the Alkane Resources shares and to discharge the loan account owing the HSBC. Management of the Alkane Resources shares was then transferred to stockbrokers based in Western Australia. That appears to have been a sensible commercial decision. It is not open to question and it does not represent any breach of a fiduciary duty.
In pars 56 and 57 the defendant deals with the so‑called 'Italian proceedings'. The defendant says proceedings were commenced against him Italy and that on 14 November 2017 he was acquitted of a charge of 'usury'. The details of the charge are not provided nor is there any explanation of the background facts. But the mere fact that the defendant was charged with an offence in Italy does not in any way effect his capacity to act as executor of the deceased's will. No material facts are pleaded which could give rise to a cause of action – perhaps a claim of conflict of interest. Furthermore, the defendant says he took advice and that advice confirmed there was no conflict of interest and he need not resign his position as executor of the deceased's will. With respect, that advice was clearly correct.
In the end the plaintiff's main complaint appears to be the value of the estate declined significantly in the time between the death of the deceased and the disposal of the shares in the HSBC portfolio. While such a decline did occur there is nothing to suggest the defendant could have done anything more to protect the estate than he did. Perhaps with the benefit of hindsight some of the steps taken could have been taken more promptly. But really the fault there lay with the Indonesian solicitors – or perhaps with the deceased given the uncertain way he arranged his affairs. The evidence does not suggest any fault lay with the defendant. He did not waste the assets of the estate and he did not commit a devastavit. The pleaded case cannot succeed. On that basis the defendant is entitled to summary judgment.
I will hear the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson30 OCTOBER 2019
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