Goldie v Getley
[2008] WASC 23
•29 FEBRUARY 2008
GOLDIE -v- GETLEY [2008] WASC 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 23 | |
| Case No: | CIV:2109/2006 | 22 NOVEMBER 2007 | |
| Coram: | NEWNES J | 28/02/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out action dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN GOLDIE GORDON THEODORE HOTHERSAL GETLEY as executor of the estate of JANET MAY GOLDIE |
Catchwords: | Succession Claim by plaintiff against defendant as executor for transfer or account of shares to which plaintiff entitled under will Defendant says he transferred the shares to trustee of family trust more than six years before action commenced Interlocutory application by defendant to strike out claim as statutebarred Whether plaintiff's claim is for a legacy or is a personal claim against defendant in nature of conversion Relevant limitation period Whether claim is barred by expiration of limitation period Turns on own facts |
Legislation: | Limitation Act 1935 (WA), s 32(1), s 38(1)(c) |
Case References: | The National Trustees Executors & Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1 Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
GORDON THEODORE HOTHERSAL GETLEY as executor of the estate of JANET MAY GOLDIE
Defendant
Catchwords:
Succession - Claim by plaintiff against defendant as executor for transfer or account of shares to which plaintiff entitled under will - Defendant says he transferred the shares to trustee of family trust more than six years before action commenced - Interlocutory application by defendant to strike out claim as statutebarred - Whether plaintiff's claim is for a legacy or is a personal claim against defendant in nature of conversion - Relevant limitation period - Whether claim is barred by expiration of limitation period - Turns on own facts
Legislation:
Limitation Act 1935 (WA), s 32(1), s 38(1)(c)
(Page 2)
Result:
Application to strike out action dismissed
Category: B
Representation:
Counsel:
Plaintiff : Ms C H Thompson
Defendant : Mr T H Brickhill
Solicitors:
Plaintiff : Kaeser Kroon
Defendant : Brickhills
Case(s) referred to in judgment(s):
The National Trustees Executors & Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514
(Page 3)
1 NEWNES J: This is an application by the defendant for orders striking out the statement of claim and dismissing the action, on the ground that the plaintiff's claim is statute-barred and the action is therefore an abuse of process. At the hearing on 22 November 2007, the parties agreed that the application should be dealt with on the basis of written submissions.
The pleadings
2 In the action the plaintiff claims against the defendant as executor of the estate of the late Janet May Goldie (the deceased), who died on 6 April 1995. Probate of her will was granted to the defendant on 20 June 1997.
3 The deceased's will is dated 10 February 1995 and, so far as relevant, provides:
4. I direct that [the plaintiff] pay his beneficial interest in my AMP insurance policies numbers WO182629-X and WO473265 upon them vesting in him to the trust established for the maintenance advancement education or support of my said children in return for me relinquishing all my rights and entitlements to his insurance policies numbers WO473266-G, WO118873-X, WOO79892-S, WO427302-W and WO103330-C.
4 In the statement of claim, the plaintiff pleads that the deceased's AMP insurance policies vested in the plaintiff on 14 June 1995 and, on 19 June 1995, the plaintiff paid to the trust (the trust) referred to in cl 4 of the will his beneficial interest in those insurance policies. It is pleaded that in consequence the deceased's estate relinquished all rights and entitlements to the plaintiff's insurance policies (the plaintiff's insurance policies) and thereafter held the plaintiff's insurance policies on trust for him.
5 The plaintiff pleads that upon the conversion of Australian Mutual Provident Society to AMP Ltd on 1 January 1998, the deceased's estate, as the holder of the plaintiff's insurance policies, became entitled to 18,964 shares in AMP Ltd (the estate AMP shares). The deceased's estate therefore held the estate AMP shares on trust for the plaintiff.
6 It is pleaded that, in or about February 1998, the defendant transferred the plaintiff's insurance policies to the plaintiff, but did not transfer the estate AMP shares, nor did the defendant inform the plaintiff that he (the defendant) held the estate AMP shares.
(Page 4)
7 The plaintiff alleges that despite demand by his solicitors, the defendant has refused to account for the estate AMP shares or to transfer the estate AMP shares to him, and he seeks an order that the defendant transfer the shares to him, alternatively account to him for the shares, and that there be an order for the tracing of the proceeds of the estate AMP shares.
8 As the claim is pleaded, and as it was put to me by way of submissions, I understand the plaintiff's essential contention to be, in effect, that the estate AMP shares came to form part of a gift to him of the plaintiff's insurance policies under cl 4 of the will and that they were held by the defendant, as executor, as such.
9 In his defence, the defendant pleads, among other things, that in about May 1998 the plaintiff directed him, as executor of the estate of the deceased, to transfer the estate AMP shares to the trust by way of a gift from the plaintiff. The defendant says that in his capacity as executor he asked AMP Ltd to make the transfer and that the plaintiff received written notice, dated December 1998, from AMP Ltd informing him (as the defendant says was the fact) that the estate AMP shares had been transferred to the trust on 6 December 1998. The defendant further pleads that, pursuant to an agreement made in February 1999 between the plaintiff and the defendant (in his capacity as trustee of the trust), some of the estate AMP shares held by the trust were sold so that the trust could make a loan to the plaintiff to enable him to meet payments due in relation to the construction of his house. It is alleged that that agreement was evidenced by a written acknowledgement dated 12 January 2000 signed by the plaintiff.
10 The defendant pleads, among other things, that by December 1998, or at the latest by January 2000, the plaintiff was aware that the defendant had transferred the estate AMP shares to the trust. The defendant alleges that if (which he denies) he has failed as executor to account to the plaintiff for the estate AMP shares or to transfer them to the plaintiff, any cause of action was barred, pursuant to s 38(1)(c) of the Limitation Act 1935 (WA) (Limitation Act) or alternatively s 13(1) of the Limitation Act 2005 (WA), at the time the writ was issued on 16 October 2006, that being more than six years from when the cause of action arose.
11 In his reply, other than in relation to the limitation issue, the plaintiff simply joins issue with the defence. On the limitation issue, the plaintiff pleads that the relevant limitation period is 12 years, pursuant to s 32(1) of the Limitation Act, and that the cause of action accrued on either 6 April
(Page 5)
- 1995 (being the date of death of the deceased) or alternatively, 19 June 1995 (being the date upon which the plaintiff's obligations under cl 4 of the will were complied with) or alternatively, 1 January 1998 (being the date of the demutualisation of AMP). Accordingly, the limitation period did not expire until 5 April 2007, alternatively 18 June 2007, or alternatively 31 December 2009, and the action is therefore within time.
12 Although the position is perhaps not as clear as it might be, I understand the plaintiff does not admit that the estate AMP shares were transferred to the trust in November 1998 or at all.
13 I should also observe that although the pleadings refer to the transfer of the estate AMP shares to 'the trust', the transfer could only have been to the trustee of the trust, a trust itself not being a separate legal entity. It appears that the defendant is the trustee of the trust, as well as executor of the deceased's estate. The transfer to the trust referred to by the defendant must therefore have been a transfer by him in his capacity as executor of the estate to himself in his capacity as trustee of the trust.
The evidence
14 In support of the application the defendant referred to statements in evidence which were issued by AMP on 6 November 1998 and 7 November 1998. The former statement is addressed to the defendant and refers to 'The Christopher & Emma A/C'. It shows the transfer to the defendant of 18,964 AMP shares on 6 November 1998 by way of an off market transaction. The statement of 7 November 1998 is addressed to 'Estate of Janet May Goldie' and shows the transfer of 18,964 shares out of that name on 6 November 1998, also by way of an off market transaction.
15 The defendant also referred to a copy of an 'acknowledgement' by the plaintiff and his wife, dated 12 January 2000, in which the plaintiff and his wife 'acknowledge our liability to purchase 14,500 AMP shares to replace them [sic] sold from the Christopher and Emma Goldie Trust used to fund progress claim payments on 4A Mossman Terrace'. I understand, however, that whether the AMP shares referred to in the acknowledgement are part of the estate AMP shares remains unresolved between the parties.
16 In the course of correspondence between the parties' solicitors, the plaintiff's solicitors declined to agree that the estate AMP shares had been transferred to the trustee of the trust.
(Page 6)
The defendant's submissions
17 The defendant submits that it is unarguable that the plaintiff's claim is, in reality, one for conversion arising from the transfer of the estate AMP shares by the defendant, as executor of the deceased's estate, to the trustee of the trust in November 1998. Any remedy in respect of that transfer was barred after the lapse of six years from the date of the transfer: s 38(1)(c) of the Limitation Act, The National Trustees Executors & Agency Company of Australasia Ltd v Dwyer (1940) 63 CLR 1 (Latham CJ); that is, in November 2004. As the writ was not issued until 16 October 2006, the claim is clearly statute-barred.
The plaintiff's submissions
18 The plaintiff contends that the defendant has misconstrued the cause of action. The plaintiff's claim is that at the time of the demutualisation of Australian Mutual Provident Society, the estate became entitled to the estate AMP shares and thereafter held those shares on trust for the plaintiff. The defendant, as executor, has failed to transfer the shares or to account to the plaintiff for them. The plaintiff's claim is not one for conversion of the shares by the defendant by their transfer to the trustee of the trust, but a claim against the defendant as executor of the deceased's estate in respect of a legacy under a will. What, if anything, the defendant has done with the estate AMP shares since they first came into his hands is a matter best known to him.
19 The plaintiff says that the relevant provision of the Limitation Act is s 32(1), dealing with any action to recover 'any legacy', for which the limitation period is 12 years after the accrual of the right of the legatee to receive the legacy. The plaintiff says that a gift of insurance policies (and any property attached to them) under a will falls within the concept of a legacy, being a gift of personal property.
The statutory provisions
20 The relevant limitation provisions are contained in the Limitation Act rather than the Limitation Act 2005 (WA), it being common ground that whenever the plaintiff's cause of action in fact accrued, it was certainly before the commencement date of the latter.
21 Section 32(1) of the Limitation Act provides, so far as relevant:
No action or suit or other proceeding shall be brought to recover … any legacy, but within 12 years next after a present right to receive the same
(Page 7)
- shall have accrued to some person capable of giving a discharge for or release of the same …
22 Section 38, on which the plaintiff relies, provides, so far as relevant:
(1) Subject to the preceding sections of this Act and as hereinafter provided, actions, suits, or other proceedings as herein set out shall and may be commenced within the time herein expressed after the cause of such actions, suits, or other proceedings respectively: -
…
- (c) (iv) Actions in the nature of actions for trespass quare clausum fregit, trespass to goods, detinue, or trover;
…
- (vi) All other actions founded on tort;
(vii) All other actions in the nature of actions on the case:
6 years.
- …
Is the action statute-barred?
23 As the matter was put by the parties, the current application turns on the nature of the plaintiff's cause of action. That is to say, whether, as the plaintiff contends, his claim is for a legacy, to which s 32(1) of the Limitation Act applies, or whether, as the defendant contends, it is, in truth, an action in the nature of conversion, to which s 38 of the Limitation Act applies.
24 It is well established that it is only in the clearest of cases that a claim should be dismissed at an interlocutory stage on the basis that the claim is statute-barred: Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514. On the material before me, I do not regard this as such a case.
25 The defendant relied for the proposition that the relevant limitation period was six years upon the decision of Latham CJ in The National Trustees Executors & Agency Company of Australasia Ltd v Dwyer. In
(Page 8)
- that case, the executors of an estate had extended the time for payment of the balance of the purchase price owing by a purchaser of certain land which formed part of the residuary estate of the testatrix. When the purchaser failed to make payment on the extended deadline the executors decided not to exercise their right to terminate the contract, having decided that in light of the very depressed economic conditions then prevailing the land was unsaleable. Subsequently moratorium legislation came into force, with the result that the executors were unable to pursue their remedies against the purchaser for non-payment. A statutory board later caused the amount to be paid by the purchaser on terms that were much less favourable to the estate than the original contractual terms. Some years later, a number of residuary beneficiaries commenced proceedings against the executors claiming that they were in breach of duty in failing to get in the balance of the purchase price on the due date and in failing to exercise their powers under the contract when they were entitled to do so. The beneficiaries claimed a declaration that the executors had been guilty of breach of duty as executors, accounts on the basis of wilful default, administration of the estate and other relief.
26 The High Court, by a majority, concluded that on the facts the executors were not in breach of their duty. Relevantly for present purposes, Latham CJ expressed the opinion, by way of obiter, that although the action by the residuary beneficiaries was one to recover a legacy, in respect of which the prescribed limitation period was 15 years, it was entirely based upon the alleged breach of duty by the executors in failing to get in the money owing. Its real foundation was therefore a devastavit, an action on the case, for which the limitation period was six years. More than six years having elapsed between the date of the devastavit and the commencement of the action, the claim was statute-barred. Starke J, however, was of a contrary view, concluding that the action was more in the nature of an action for the administration of the estate and therefore for a legacy, and it was not open to the executors to set up their own devastavit and claim the protection of the applicable limitation period. The other members of the court did not express a view on the issue.
27 In the present action, the plaintiff claims, in effect, that in breach of his duty as executor the defendant has failed to transfer to him, or to account for, property to which the plaintiff is entitled under the will of the deceased, namely the estate AMP shares, and the plaintiff seeks an order for the transfer to him of the estate AMP shares or an account. The defendant, on the other hand, says (so far as relevant) that in his capacity as executor he transferred the estate AMP shares to the trust in
(Page 9)
- November 1998, so that any claim the plaintiff may have is one in tort in respect of that transfer and any such claim was statute-barred six years after the transfer occurred.
28 As I have concluded that this action must go to trial, it is unnecessary and undesirable that I express any final opinion at this point as to the merits of the defendant's contention. For present purposes, it is sufficient to conclude, as I do, that whether the present claim is properly to be regarded as an action for a legacy, as opposed to one against the defendant personally for misapplying the assets of the estate contrary to his duty as executor, is arguable and is not a matter appropriately determined on an application of this nature. It follows that the limitation issue cannot be determined at this stage.
29 In any event, whether the proper characterisation of the plaintiff's cause of action is as contended by the plaintiff or by the defendant or otherwise, I do not consider that the question of whether or not the action is statute-barred can properly be determined until the facts relating to the ultimate fate of the estate AMP shares have been investigated at trial. In that connection, it is relevant that the alleged transfer of the estate AMP shares upon which the defendant relies was apparently one by himself as executor of the estate to himself as trustee of the trust. What took place, and when, is therefore a matter best known to him as the party on both sides of the transaction, albeit in different capacities, and not a matter to which the plaintiff was necessarily privy. I should say in relation to that that no affidavit of the defendant was filed in support of this application.
30 Although the evidence on behalf of the plaintiff in opposition to the application is somewhat less than satisfactory, I would not be prepared to dismiss the claim without the opportunity being afforded to him of investigating the relevant facts at trial.
Conclusion
31 On the material before me I am not satisfied that the plaintiff's claim is plainly statute-barred. That issue, in my view, must be left to a trial of the action. I would therefore dismiss the application.
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