Gilbert v Kik

[2021] NSWSC 238

Supreme Court

New South Wales

Medium Neutral Citation:

Gilbert v Kik [2021] NSWSC 238

Hearing dates:

5 March 2021

Date of orders:

19 March 2021

Decision date:

19 March 2021

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) The defendants’ notice of motion filed 9 December 2020 is dismissed.

(2) The defendants are to pay the plaintiffs’ costs of the notice of motion.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – for irregularity – UCPR 36.15 – where costs orders made against defendants – where judgment pursuant to costs assessment sought to be set aside on basis that the plaintiffs were not referred to in their capacity as executors – whether plaintiffs must be described in their representative capacity – UCPR 6.18 – where no irregularity in the entry of judgment – application dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 61

Trustee Act 1925 (NSW) s 63

Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 6.18, 36.15

Cases Cited:

Levy v Kum Chah (1936) 56 CLR 159

Government Insurance Office v Johnson [1981] 2 NSWLR 617

Texts Cited:

Ritchie’s Uniform Civil Procedure NSW

Category:

Procedural rulings

Parties:

Marea Gilbert (First Plaintiff)
Lyn Ison (Second Plaintiff)
Janina Kik (First Defendant)
David James (Second Defendant)

Representation:

Counsel:
J Trebeck (Plaintiffs)
B May (Defendants)

Solicitors:
Adrian Holmes (Plaintiffs)
Allsop Glover Lawyers (Defendants)

File Number(s):

2020/218708

Publication restriction:

Nil

Judgment

1. On 27 July 2020 the plaintiffs registered a judgment pursuant to a costs assessment in the sum of $73,929.93. The plaintiffs are Marea Gilbert and Lyn Ison. The defendants are Janina Kik and David James. Pursuant to that judgment, the plaintiffs sought by notice of motion a writ for the levy of property in respect of the unpaid judgment.

2. By a notice of motion filed 9 December 2020 the defendants sought orders that the judgment of 27 July 2020 be set aside pursuant to rule 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) on the basis that it was entered irregularly, and that the writ on the property of the first defendant be stayed.

3. The sole reason for the application to set aside the judgment is said by the defendants to be the description of the plaintiffs in the judgment. To understand the point being made, it is necessary to set out the background history to the judgment.

4. The late Stanley Edward Douglas died on 2 December 2011. He left a substantial estate, largely in a testamentary trust called the Capital Protected Trust (CPT) for his wife Zeta Kathleen Douglas and their four daughters Marea Gilbert (the first plaintiff), Lyn Ison (the second plaintiff), Angela Weber and Trudie James. Stanley’s will appointed Zeta, Marea and a family friend, Janina Kik (the first defendant) as trustees of the CPT. David James (the second defendant) is Trudie James’ former husband. He was named in Stanley’s will as the appointer of the CPT.

5. On 6 June 2013 David James purported to remove Marea as a trustee and appoint his then wife Trudie James as a new trustee. On 22 January 2014 David James purported to remove Zeta as a trustee and appoint himself instead.

6. On 25 March 2015 in proceedings 2014/107434 in this Court, McDougall J made declarations and orders to the effect that David James did not have the power to remove or appoint trustees of the CPT, and that the trustees were Zeta, Marea and Janina Kik, as the will had appointed.

7. Thereafter on 6 May 2015, David James executed a document by which he purported again to remove Marea as a trustee.

8. On 30 July 2015 in the same proceedings, Slattery J made declarations to the effect that the document executed on 6 May 2015 was void and of no effect. Justice Slattery also ordered Janina Kik and David James to provide an account of their dealing with CPT funds during the period they had assumed control of the CPT.

9. The account provided by them showed that they made or allowed payments totalling $155,814.64 out of the CPT which were not for the benefit of the CPT or its beneficiaries.

10. Zeta and Marea commenced proceedings 2016/103090 in this Court as both trustees and beneficiaries of the CPT against the present defendants arising out of those payments. In those proceedings, Sackar J made orders on 2 September 2016 removing Janina Kik as trustee and removing David James as appointor. On 11 October 2016 Sackar J ordered that those defendants pay Zeta and Marea $177,400.00, and pay Zeta’s and Marea’s costs.

11. On 5 June 2018, Zeta Douglas died. Probate of her will was granted to the present plaintiffs on 22 August 2018.

12. A costs assessment application numbered 2019/66337 in respect of the costs orders made by Sackar J was filed on 28 February 2019. The applicants were named as “The Executors of the will of Zeta Kathleen Douglas deceased and Marea Gilbert”. The application was referred to Costs Assessor Marilyn Filewood. In an email to the solicitor acting for the costs applicants, Adrian Holmes, Ms Filewood said (inter alia):

I have not previously conducted an assessment where the Applicant was described as “executors of the estate…” as opposed to, for example, “XX as executor of the estate of …” – ie, naming the executor. I merely mention this, prior to the matter being finalised, it would be preferable to ensure any certificate which issues is capable of registration.

13. Mr Holmes replied and said:

I take your point about the name of the costs applicant. I attach a copy of the probate for your records and agree that any certificate ought properly be issued in the names of Ms Gilbert and Ms Ison as executors.

14. The defendants lodged objections and submissions in relation to the costs but said nothing about the names of the costs applicants.

15. In her reasons for determination of the costs assessment, the Costs Assessor described the applicants as “Marea Gilbert and Lyn and Ison as executors of the will of the late Zeta Kathleen Douglas and Marea Gilbert”.

16. The defendants applied for a review of the Costs Assessor’s assessment. The Review Panel affirmed the Costs Assessor’s determination. Marea Gilbert and Lyn Ison then applied to register the judgment. The plaintiffs were described as Marea Gilbert and Lyn Ison. As noted earlier, judgment was entered on 27 July 2020.

17. The defendants submitted that the judgment was entered irregularly in that it did not refer to them as executors of the estate of Zeta. The defendants submitted that the plaintiffs in their personal capacities had no claim, no cause of action and no judgment in their favour against the defendants. The defendants submitted that for the plaintiffs to be allowed to enforce the judgment against the defendants would obviously cause significant detriment to them.

18. The defendants submitted that it should be assumed that the plaintiffs are claiming in their personal capacities because they do not state otherwise. The defendants submitted that, even though the plaintiffs would be required to deal with the funds obtained from the judgment in accordance with their executorial and trustee duties, the defendants should not be placed in a position where they might to have to litigate in order to ensure that that subsequently occurs. The defendants submitted that they wished to ensure that moneys paid pursuant to the judgment were paid properly and to the people who obtained the benefit of the judgment in the capacity that they had.

19. Counsel for the defendants frankly conceded that there is no rule in the Uniform Civil Procedure Rules 2005 (NSW) which stipulates that a person suing in a representative capacity must be described as suing in that capacity.

20. The only rule in the UCPR dealing with capacity is r 6.18. That rule provides:

6.18 Joinder of causes of action (cf SCR Part 8, rule 1; DCR Part 7, rule 1; LCR Part 6, rule 1)

(1) In any originating process, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances -

(a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action,

(b) if the plaintiff sues -

(i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and

(ii) in his or her personal capacity, but with reference to the estate of the same deceased person, in respect of the remaining causes of action,

(c) if the plaintiff claims the defendant to be liable -

(i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and

(ii) in his or her personal capacity, and in relation to the estate of the same deceased person, in respect of the remaining causes of action,

(d) if the court grants leave for all of the causes of action to be dealt with in the same proceedings.

(2) Leave under subrule (1) may be granted before or after the originating process is filed.

21. That Rule, relevantly, simply enables a plaintiff to bring two or more causes of action in the same proceedings, where the plaintiff is suing in more than one capacity, as sub-r (1)(b) allows, or with leave under sub-r (2). The notes in Ritchie’s Uniform Civil Procedure NSW to this rule say that although there is nothing in the UCPR to require that a party indicate that they sue, or are sued, in a representative capacity, that fact should appear in the initiating process.

22. The notes say also that any judgment should indicate the capacity of the defendant, and that the purpose of so doing is to clarify whether the judgment may be enforced personally against the defendant, or only to the extent of the representative capacity. In circumstances where the defendant is sued as an executor, that statement would appear to accord with authority: Government Insurance Office v Johnson [1981] 2 NSWLR 617 at 622, and see the discussion in Levy v Kum Chah (1936) 56 CLR 159 at 168-169. That is not the position here. There is no question of the defendants having a limited liability as far as execution of a judgment against them is concerned.

23. It is doubtful that the statement in Ritchie is correct as far as proceedings brought by trustees, executors and administrators, or other persons in a representative capacity are concerned. It is certainly not the practice in the Possession List for the proceedings to be intituled with the capacity of the plaintiff where proceedings are brought by executors, administrators and trustees. Nor do I understand it to be the practice in the Equity Division except, perhaps, for proceedings for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW). It would be expected, however, that the plaintiff would plead his, her or its representative capacity at the outset in the pleading of the claim.

24. In the present case, the plaintiffs are entitled to the judgment that ensues from the costs assessment process. To the extent that the plaintiffs have the benefit of the judgment for costs in their representative capacity as executors of Zeta’s estate, those costs will be held by them and applied on the basis of that representative capacity. Of course, a judgment for costs has a different flavour from a judgment by way of damages, because the costs are merely to reimburse them for what the plaintiffs have expended, or are liable to pay, in the proceedings. In that way, the costs, unlike a judgment for damages or arising from some right in equity, are not held on behalf of the estate.

25. The notion that the defendants might be placed in a position where they had to litigate to ensure that the costs were properly dealt with after they were paid pursuant to the judgment by the plaintiffs has no basis. As I have said, in the first place the costs are merely to reimburse the plaintiffs for monies they have expended, or are liable to pay, in relation to the litigation. Secondly, the defendants would have no standing to bring any proceedings to ensure that the costs were properly dealt with by the plaintiffs once those costs had actually come into their hands. When the judgment is executed, or if those costs are paid prior to execution, the defendants would have a complete answer to any further claim against them for those costs. There was no detriment to the defendants by the form of the judgment.

26. For the reasons given in the preceding paragraph, the present notice of motion had no practical purpose. If set aside, the judgment would have been replaced immediately with another judgment for the same amount, with only the title of the judgment being changed to refer to the representative capacity of the plaintiffs.

27. If I am in error in determining that there has been no irregularity in the entry of judgment by the plaintiffs without their capacity as executors being stated, I would dispense with any requirement of practice that requires the disclosure of such capacity, pursuant to the power given in s 61 of the Civil Procedure Act 2005 (NSW) and r 2.1 UCPR. I would do so because there can be no possible detriment to the defendants in the judgment being entered in the form it has been for the reasons I have given.

28. I make the following orders:

1. The defendants’ notice of motion filed 9 December 2020 is dismissed.

2. The defendants are to pay the plaintiffs’ costs of the notice of motion.

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Decision last updated: 19 March 2021