Green v Ellul - [2018] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
GREEN & ANOR v ELLUL & ORS
[2018] SASCFC 100
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
26 September 2018
SUCCESSION - FAMILY PROVISION - APPEALS
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - APPLICATION TO BE BEFORE FINAL DISTRIBUTION
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - TIME
Appeal from the decision of a Master of the Supreme Court on the determination of preliminary issues in an application for provision under the Inheritance (Family Provision) Act 1972 (SA) (the Act).
Section 8(1) of the Act provides a limitation period of six months for the commencement of proceedings claiming the benefit of the Act. Section 8(5) of the Act provides that any distribution of any part of an estate made before an application for an extension of time shall not be disturbed pursuant to an application for the benefit of the Act.
On 10 July 2017, the plaintiffs filed a summons seeking provision out of the deceased estate pursuant to the Act. On 13 July 2017, those proceedings were served on the solicitor for the defendants one day outside the limitation period for the commencement of the proceedings provided for in s 8(1) of the Act. The summons did not expressly include an application for an extension of time within which to bring the claim. Knowing that proceedings had been served outside the limitation period, the defendants in their capacity as executors distributed the estate, except for $5,023.46 which remained in their solicitor’s trust account. On 18 September 2017, the plaintiffs filed an amended second summons expressly including an application for an extension of time.
A Master of the Supreme Court held the summons filed on 10 July 2017 and served on 13 July 2017 was an “application for extension of time”; 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 extension of time”; and no part of the estate was distributed before any application for an extension of time.
The defendants appealed from the decision of the master to the Full Court.
Held (per Stanley J, Kourakis CJ and Lovell J agreeing): Appeal allowed.
1. The summons filed on 10 July 2017 and served on 13 July 2017 was not an “application for extension of time” within the meaning of subsections 8(4) and 8(5) of the Act.
2. It is unnecessary to answer the question whether 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 extension of time” within the meaning of those provisions.
3. The summons filed on 10 July 2017 did not convey to the appellants that the respondents made an application for an extension of time under the Act.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Green v Ellul

Details

AGLC: Green v Ellul [2018] SASCFC 100
Case: [2018] SASCFC 100
Decision Date: 26 September 2018

CaseChat Overview and Summary

The appeal concerned an application for provision out of the estate of Mary Ellul, deceased, brought by three of her children (the respondents) against the executors of her will (the appellants). The deceased died on 18 September 2016, and probate was granted on 12 January 2017. The respondents, who were each left a cash legacy of $1,000 under the will, issued proceedings pursuant to the relevant Act on 10 July 2017, seeking provision from the estate. These proceedings were served on the appellants' solicitor on 13 July 2017, which was one day outside the six-month limitation period prescribed by section 8(1) of the Act. The initial summons did not expressly seek an extension of time.

The legal issues before the court were whether the summons filed on 10 July 2017 constituted an "application for extension of time" within the meaning of sections 8(4) and 8(5) of the Act, whether a subsequent amended summons filed on 18 September 2017 had the effect of making the initial summons an application for an extension of time, whether the initial summons conveyed to the appellants that an extension of time was being sought, and whether any part of the estate had been distributed before an application for an extension of time was made. The significance of these questions lay in section 8(5) of the Act, which stipulated that distributions made before an application for an extension of time would not be disturbed.

The master reasoned that the Act was remedial legislation and that to interpret the summons as not including an application for an extension of time would render the claim otiose, thereby failing to give the most complete remedy permitted by the Act. The master concluded that the purpose of sections 8(4) and (5) was fulfilled as the executors had notice of the claim. The master also held that, in any event, Supreme Court Rules (SCR) 54 provided retrospective effect to the amended summons filed on 18 September 2017, which expressly sought an extension of time. This amendment was deemed to relate back to the date of service of the first summons, 13 July 2017, meaning the application for an extension of time was effectively made on that date.

The master's decision was that the initial summons, when read beneficially and in conjunction with the supporting affidavits, constituted an application for an extension of time. Furthermore, the subsequent amendment retroactively confirmed this. Consequently, the master found that the application for an extension of time was made before any distribution of the estate, and the appellants' actions, including drawing cheques for legacies and transferring funds to themselves as residuary beneficiaries, were therefore subject to the potential orders of the court.

Orders

Orders of the court

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Background

Background to the litigation

In order to understand the basis of the master’s decision and the appeal, it is necessary to set out the background to the application for the benefit of the Act. Background Mary Ellul (the deceased) died on 18 September 2016. Her last will was made on 4 February 2011. Probate of the will was granted on 12 January 2017 to her executors, Joan Annette Green and Josephine Mary Tommasini (the appellants) who are the defendants to the application pursuant to the Act. The deceased had seven children, including the appellants, six of whom were living at the time of her death. By her will, she left a cash legacy of $1,000 to four of those children. She left the residue of her estate (after the payment of funeral and testamentary expenses) to the appellants. 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 respondents’ solicitor put the appellants on notice of the potential of a claim by the respondents. The respondents are three of the four children of the deceased who have each been left a cash legacy of $1,000 in the deceased’s will. The remaining beneficiary under the will, Anthony Ellul, a son of the deceased, who also received a legacy of $1,000, is not a party to the application for the benefit of the Act. On 20 June 2017 the appellants’ solicitor advised the respondents’ solicitor that he had instructions to accept service on their behalf. On 10 July 2017 the respondents issued proceedings pursuant to s 7 of the Act. The respondents filed a summons seeking provision out of the deceased estate pursuant to the Act and three supporting affidavits from each of the respondents. Those proceedings were served on the solicitor for the appellants on 13 July 2017, one day outside the limitation period for the commencement of the proceedings provided for in s 8(1) of the Act. The summons did not expressly include an application for an extension of time within which to bring the claim. The summons sought the following relief:1. The plaintiffs be entitled to such provisions as this Honourable Court deems fit out of the estate of Mary Ellul, deceased.2. The costs of and incidental to this application be paid out of the estate of Mary Ellul, deceased.3. Such further or other orders as this Honourable Court deems fit. The significance of the application for an extension of time is to be found in s 8(5) of the Act which provides that any distribution of any part of an estate made before an application for an extension of time shall not be disturbed pursuant to an application for the benefit of the Act. Between 14 July 2017 and 26 July 2017, in their capacity as executors, the appellants, through their solicitor, took the following steps:1.They caused a transmission application to be lodged on their behalf at the Lands Titles Office (LTO) in respect of the Daw Park property;2.They caused cheques each in the sum of $1,000 to be drawn in favour of each of the beneficiaries entitled to such legacy under the will;3.They caused to be transferred to each of themselves as residuary beneficiaries the sum of $11,387.79; and4.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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In those circumstances the master was asked to decide the following questions:1.Whether the summons filed on 10 July 2017 and served on 13 July 2017 was an “application for extension of time” within the meaning of subsections 8(4) and 8(5) of the Act.2.Whether the amendment to the summons by way of filing a second summons on 18 September 2017 had the effect of making a summons filed on 10 July 2017 and served on 13 July 2017 an “application for extension of time” within the meaning of those provisions.3.Whether the summons filed on 10 July 2017 conveyed to the appellants that the respondents made an application for an extension of time under the Act.4.Whether any part of the estate was distributed before any application for an extension of time within the meaning of subsection 8(5) of the Act.The master’s decision There are two limbs to the master’s reasons. First, the master held that the summons was, in fact, an application for an extension of time within the meaning of s 8 notwithstanding the absence of an express plea seeking an extension. The master correctly identified the Act as remedial legislation. From that premise, she proceeded to reason that to decline to imply that the summons included an application for an extension of time would result in the summons being rendered otiose. This conclusion would fail to give the most complete remedy which the phraseology of the Act permits. In the circumstances, the master considered that the purpose of s 8(4) and (5) was fulfilled. The executors received notice, not just that a claim was contemplated, but that one had 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 Act. Given the Act does not prescribe a method for seeking an extension of time, a beneficial reading of the Act permits an application for an extension of time to be brought by the simple making of the claim out of time. Second, in any event, the operation of SCR 54 gives retrospective effect to the second summons filed on 18 September 2017 by which an additional prayer for relief i.e., an order for an extension of time, was sought. As a result the same cause of action sought in the first summons is relied on in the second summons. The second summons simply acknowledges expressly that an extension of time is required. In circumstances where the Act does not specify how an application for an extension of time is to be made, the facts as pleaded in the supporting affidavits, filed in lieu of a statement of claim, made it clear that the application for provision was made on the basis of a grant of probate made on 12 January 2017. The master reasoned that it was obvious that any application made more than six months after this date required an extension of time. Accordingly, the retrospective operation of the amendment should be allowed, so that the amendment effected by the second summons would relate back to the date of the service of the first summons and operate from 13 July 2017.

Ratio Decidendi

Legal Principle Established

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