Grove v Kenworthy-Groen - [2024] WASC 365

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GROVE v KENWORTHY-GROEN & ORS [2024] WASC 365
CORAM:   MASTER RUSSELL
HEARD:   14 MAY 2024
DELIVERED          :   8 OCTOBER 2024
FILE NO/S:   CIV 2249 of 2020
BETWEEN:   NICHOLAS WILLIAM GROVE
Plaintiff
AND
SIMON DIRK KENWORTHY-GROEN
First Defendant
SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
Second Defendant
SIMON KENWORTHY-GROEN as trustee for THE GROVE FAMILY HOUSE TRUST
Third Defendant
ANDREW HENDRICK GROVE as trustee for THE GROVE FAMILY HOUSE TRUST
Fourth Defendant
SIMON KENWORTHY-GROEN as trustee for THE GROVE GRAND FATHER FAMILY TRUST
Fifth Defendant
JOHN WILLEM GROVE
Sixth Defendant

Catchwords:

Practice and procedure - Application to remove party pursuant to O 18 r 6(2)(a) of the Rules of the Supreme Court 1971 (WA) - Whether the party is a necessary party to the proceeding - Whether the party's legal interests will be directly affected by any order which might be made in the proceedings - Turns on own facts

Legislation:

Rules of Supreme Court 1971 (WA) O 18 r 6, O 18 r 6(2), O 18 r 6(2)(a)

Result:

Second defendant's application that sixth defendant be removed as a party to the proceeding granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P G Donovan
First Defendant	:	No appearance
Second Defendant	:	Mr L A Tsaknis
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	Mr R Nash
Sixth Defendant	:	Mr D Robinson

Solicitors:

Plaintiff	:	MDS Legal
First Defendant	:	No appearance
Second Defendant	:	Fort Knox Legal
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	Croftbridge
Sixth Defendant	:	Williams + Hughes

Case(s) referred to in decision(s):

Brooks & Anor v Young & Ors [2018] SASCFC 81; (2018) 131 SASR 365
Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Elovalis v Elovalis [2008] WASCA 141 (S)
Grove v Fisher & Anor [2002] WASC 247
North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [2023] WASCA 122
North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [No 2] [2023] WASC 98
Official Receiver in Bankruptcy v Schultz & Anor (1990) 170 CLR 306
O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan [2021] WASC 168
Public Trustee v Peter Patrick Bebich as executor of the estate of Yanja Bebich (Dec) [2014] WASC 340
Saffari v State of Western Australia [2024] WASCA 77
Sawiak v The Public Trustee, unreported; SCt of WA; Library No 930479
Simon Dirk Kenworthy-Groen as executor of the estate of William Grove v Grove [2023] WASC 87
Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460
Wurth Australia Pty Ltd v Burgess [2012] WASC 504

MASTER RUSSELL:

Introduction

This proceeding is one of several proceedings in this court in relation to the estate of the late William Grove (Deceased), who died on 30 October 2015.
The Deceased is survived by three adult children, Simon Dirk Kenworthy‑Groen, Andrew Hendrik Grove and John Willem Grove. With no disrespect to any of them, I will refer to them and the other parties by their first names.
Simon is the first defendant in his own capacity, the second defendant in his capacity as executor of the Deceased's estate (Estate), the third defendant in his capacity as trustee for the Grove Family House Trust and the fifth defendant in his capacity as trustee for the Grove Grand Father Family Trust.
Andrew is the fourth defendant in his capacity as trustee for the Grove Family House Trust. He has filed a notice of intention to abide the decision of the court in this proceeding.
John is the sixth defendant. John's son, Nicholas William Grove, is the plaintiff in this proceeding and a grandson of the Deceased.
Nicholas commenced this proceeding by writ and statement of claim filed on 18 December 2020. An amended statement of claim was filed on 4 January 2021, which was re-amended on 31 May 2023 pursuant to an order made on 15 May 2023. In essence, Nicholas claims that, for the reasons pleaded in the re‑amended statement of claim, Simon:
(a)is in a position of actual or potential conflict between his duty as executor of the Estate and his personal interests;
(b)has breached his duty as executor to report to Nicholas as a beneficiary of the Estate concerning the administration of the Estate; and
(c)has acted in breach of his fiduciary duties.
Nicholas seeks the following relief:
(a)the grant of probate issued to Simon in relation to the Estate be revoked;
(b)Simon be removed as executor of the Estate pursuant to s 77 of the Trustees Act 1962 (WA) or the court's inherent jurisdiction; and
(c)an independent party suitable to the court be appointed administrator with the will annexed and as trustee of the Estate pursuant to s 6 of the Administration Act 1903 (WA) or the court's inherent jurisdiction.
Other than entering an appearance on 15 January 2021, John had taken no part in the proceeding until 28 August 2023, when he filed a defence to the re‑amended statement of claim.
By chamber summons filed on 18 September 2023, Simon in his capacity as executor of the Estate applied to strike out John's defence pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (RSC), further and alternatively for an order that John be removed as the sixth defendant pursuant to O 18 r 6(2)(a) RSC (Application).
In paragraphs 2, 3 - 5, 11, 20, 21, 24 and 26 of his defence, John pleaded matters the subject of other proceedings, namely:
(a)CIV 1532 of 2020, an application for letters of administration for the estate of his, Simon's and Andrew's late sister, Sonja Jennifer Grove (Sonja's Estate Action); and
(b)CIV 1369 of 2021, an action brought by John against Simon in his capacity as executor of the Estate and others for alleged breach of trust and fiduciary duty by the Deceased in his former capacity as trustee of the BE Lynn Trust (BE Lynn Trust Action).
By the time of the hearing of the Application, it was accepted on behalf of John that paragraphs 2, 3 - 5, 11, 20, 21, 24 and 26 of his defence be struck out to the extent those paragraphs or parts of them plead matters that relate to the Sonja's Estate Action and the BE Lynn Trust Action.
Once those parts of John's defence are struck out, John admits the allegations Nicholas makes against Simon in his capacity as executor of the Estate in all paragraphs of the re-amended statement of claim except for paragraphs 32A - 32F, to which he does not plead. As a result of the concessions made on John's behalf, the strike out application was not pressed, leaving for determination the application that John be removed as the sixth defendant pursuant to O 18 r 6(2)(a) RSC.
For the reasons that follow, that application should be granted and John removed as a defendant in this proceeding.

Relevant factual background

No evidence has been filed in support of the Application or in opposition to it.
The following facts are pleaded in the re-amended statement of claim filed on 31 May 2023 and admitted by John in his defence filed on 28 August 2023.
Among other dispositions, by his will dated 11 September 2015 (Will), the Deceased:
(a)appointed Simon as executor and trustee of the Estate;[1]
(b)appointed the executor of the Estate (Simon) as the trustee and appointor of the Grove Grand Father Trust;[2]
(c)appointed the executor of the Estate (Simon) and Andrew as trustees and appointors of the Grove Family House Trust;[3]
(d)named Simon as a beneficiary of the Estate in his capacities as trustee of the Grove Grand Father Trust and trustee of the Grove Family House Trust;[4] and
(e)named Andrew as a beneficiary of the Estate in his capacity as trustee of the Grove Family House Trust.[5]
[1] Re-amended statement of claim filed 31 May 2023 (RASOC) [5.2], [15.1]; Sixth Defendant's Defence filed 28 August 2023 (Defence) [1], [9].
[2] RASOC [5.4], [15.2]; Defence [1], [9].
[3] RASOC [5.5], [15.3]; Defence [1], [9].
[4] RASOC [5.6]; Defence [1].
[5] RASOC [6.3]; Defence [1].
The Grove Grand Father Trust is a discretionary family trust created by the Will. There are four named beneficiaries of the trust, being Simon's children. The Grove Grand Father Trust is the residuary beneficiary of the Estate.[6]
[6] RASOC [8.1], [8.3], [8.5], [15.12]; Defence [6], [9].
The Grove Family House Trust is a discretionary family trust created by the Will. It has six named beneficiaries, being Simon's and Andrew's children.[7]
[7] RASOC [9.1], [9.3]; Defence [6].
A grant of probate was issued to Simon on 8 February 2016.[8]
[8] RASOC [5.3], [16]; Defence [1], [10].
At the date of the Deceased's death, the Deceased owned considerable moveable and immoveable property inside and outside Western Australia, including a 70% interest in what is referred to as the IOH Partnership. The IOH Partnership's assets included a property in Hastings Street, Scarborough (defined as the IOH Premises) from which the IOH Partnership operated a hotel, restaurant, and bar business under the name 'Indian Ocean Hotel' (IOH Business).[9]
[9] RASOC [11]; Defence [7].
Clause 6 of the Will included a gift to Nicholas.[10] That provision of the Will was the subject of an application for directions in a separate proceeding, referred to later in these reasons.
[10] RASOC [15.5]; Defence [9].
It is not necessary to set out or refer to all of the provisions of the Will or matters pleaded in the re-amended statement of claim in relation to it.
It is common ground that John is not named as a beneficiary in the Will.
As noted, this proceeding is one of several separate proceedings commenced in connection with the administration and assets of the Estate, and related matters.
It is not necessary to recount the details of each of the other proceedings for the purpose of the Application. Relevantly, they include action CIV 2348 of 2016 commenced by John in which he claims provision from the Estate, pursuant to s 6 of the Family Provision Act1972 (WA) (Family Provision Act Claim). Nicholas and two of John's other children and grandchildren of the Deceased, Cameron Jacob Grove and Robert Aaron Grove, have also made claims for provision out of the Estate, pursuant to s 6 of the Family Provision Act in the Family Provision Act Claim.[11]
[11] RASOC [18] - [20].
One of the other proceedings is the application for directions that I have referred to, being action CIV 2188 of 2020, in which Simon, as executor and trustee of the Estate, sought directions as to the proper construction of cl 6 of the Will in relation to the gift to Nicholas (Directions Proceeding). The parties referred in their submissions to the decision of Acting Master McDonald in the Directions Proceeding, Simon Dirk Kenworthy-Groen as executor of the estate of William Grove v Grove,[12] which sets out the following background concerning the Estate.
[12] Simon Dirk Kenworthy-Groen as executor of the estate of William Grove v Grove [2023] WASC 87 (Directions Proceeding Decision).
At the time of his death:
(a)the Deceased had a 70% share in a partnership (IOH Partnership) which carried on a hotel business at the Indian Ocean Hotel in Scarborough (IOH Premises); and
(b)John had a 20% share in the IOH Partnership and Andrew had a 10% share.[13]
[13] Directions Proceeding Decision [4] - [5].
There was no written partnership agreement.[14] The partners were registered proprietors of the IOH Premises as tenants in common in the same proportions as their shares in the IOH Partnership.[15]
[14] Directions Proceeding Decision [6].
[15] Directions Proceeding Decision [7].
Following the death of the Deceased, the business was placed in to the hands of receivers and managers which, by way of deed of assignment, settlement and release, continued under a new partnership.[16]
[16] Directions Proceeding Decision [10].
Clause 6 of the Will provides:[17]
[17] Directions Proceeding Decision [13].
PARTNERSHIP SHARE OR PARTNERSHIP INTEREST AFTER DISSOLUTION
I give 5% of the Indian Ocean Hotel (IOH), being taken from my 70% partnership share, or my share in partnership property (my share), free from estate expenses, to my grandson Nicholas Grove (Nick) and the remaining 65% of the IOH, which was the balance of my share, to be vested into THE GROVE GRAND FATHER FAMILY TRUST.
i.My Executor and Trustee will support Andrew being the manager in charge of the IOH, subject to:
a.The Executor and Trustee approving purchase and expense of the IOH greater than $100,000; and
b.The Executor and Trustee approving salaries of the IOH staff;
My Executor and Trustee, in his absolute discretion may review, maintain or revoke the support give[n] to Andrew being the manager in charge of the IOH, at any time.
ii.If the IOH remains an asset in which THE GROVE GRANDFATHER TRUST has a majority interest, the Executor and Trustee is to encourage, but not force members of my immediate family to work at the IOH. I wish that the business be a place in which the immediate family can always be employed, no matter their circumstances.
Clause 7 of the Will commences by expressing the Deceased's wish that Andrew and Nicholas make a 'joint effort to not have John as part of any entity or structure that manages or controls the IOH'. Further, if Simon as trustee, Andrew and Nicholas resolve to purchase John's share of the partnership from the proceeds of the sale, they must take into account a number of matters which are set out in cl 7.[18]
[18] Directions Proceeding Decision [14].
The remaining provisions of cl 7 set out how the profits from the sale of the 'IOH' are to be paid to the partners depending on whether it is sold before or after 1 July 2016, in respect of which I refer to paragraphs 15 - 16 of the Directions Proceeding Decision.
Acting Master McDonald concluded in the Directions Proceeding that the questions raised as to the proper construction of the gift to Nicholas provided for in cl 6 of the Will, should be answered as follows:[19]
1.The reference to the Indian Ocean Hotel or IOH in cl 6 of the Will refers to the IOH Partnership, the assets of which comprise both the IOH Premises and the hotel business conducted at the IOH Premises.
2.The IOH Premises form part of the property of the IOH Partnership.
3.The gift to Nicholas was intended to be a gift of the Deceased's share of the IOH Partnership.
4.The reference in cl 6 to the gift of 5% is intended to be 5% of the IOH Partnership taken from the Deceased's share, not 5% of the Deceased's share.
5.The gift to Nicholas is not void for uncertainty.
[19] Directions Proceeding Decision [105].
In this proceeding, Nicholas pleads among other things that:
(a)in or around December 2016, John assigned his 20% interest in the IOH Partnership to Indian Ocean Hotel Pty Ltd and Grove Superannuation Pty Ltd as trustee for the Grove Superannuation Fund;[20]
(b)since in or around January 2017, the IOH Business has been operated by a new partnership composed of the Estate, Andrew and the Grove Superannuation Fund, with the new partnership holding a 70% share of the IOH Business; [21] and
(c)on or about 30 March 2017, the 20% interest in the IOH Partnership previously held by John was transferred to the Grove Superannuation Fund.[22]
[20] RASOC [24]; admitted by John, Defence [13].
[21] RASOC [25]; admitted by John, Defence [13].
[22] RASOC [26]; admitted by John, Defence [14].
Nicholas alleges that, in or about January 2017, Simon purported, without Nicholas' consent and without there having been any distribution of the Estate to the beneficiaries, to:
(a)convert Nicholas' gift (under cl 6 of the Will) to a fixed cash sum equivalent to 5% of what Simon estimated to be the value of the IOH Partnership (including the IOH Premises) as at that time into a bank account in the name of the Estate;
(b)thereafter treat the 70% interest of the Estate in the new partnership (including the IOH Premises) as solely being for the benefit of the Grove Grand Father Trust; and
(c)deal with the new partnership such that the Grove Grand Father Trust will receive the sole benefit of all income from the IOH Business and all capital growth in the IOH Premises.[23]
[23] RASOC [29]; admitted by John, Defence [16].
Nicholas alleges, in effect, that in so doing, Simon has acted so as to disadvantage Nicholas in a manner that advantages the Grove Grand Father Trust.[24]
[24] RASOC [30]; admitted by John, Defence [16].
He also claims that:
(a)Simon has failed to comply with reasonable requests for information by him and his legal representatives regarding the administration of the Estate,[25] and breached his duty as executor to report to Nicholas as a beneficiary of the Estate concerning its administration;[26]
(b)by his actions,[27] placed himself in a position of actual or potential conflict between his duty as executor of the Estate and his personal interest in the distribution of the Estate, or preferred his personal interest in relation to the Estate over his duty as executor of the Estate; and
(c)acted in breach of his fiduciary duties.[28]
[25] RASOC [33]; admitted by John, Defence [19].
[26] RASOC [39]; admitted by John, Defence [14].
[27] As pleaded in RASOC [35] - [38]; admitted by John, Defence [25].
[28] RASOC [26]; admitted by John, Defence [14].
As referred to, the relief sought by Nicholas in this proceeding is that the grant of probate issued to Simon be revoked, an administrator be appointed in his place, and he be removed and replaced as trustee of the Estate.
In relation to the application to remove John as a party, Simon submits, in essence, that there are no rights or liabilities of John that will be directly affected by any order that may be made in the proceeding. That John is a claimant in the Family Provision Act Claim does not give him any direct interest in the Estate or the outcome of this proceeding, and his joinder in this proceeding is not necessary to protect his interests.
John disputes this. John does not dispute that he presently has no direct interest in the assets of the Estate. However, his position is that he has a contingent interest in the Estate based upon his claim in the Family Provision Act Claim. As such, he maintains that he is a necessary party whose interests may be directly affected by any orders made by the court in this proceeding.
William supports John's position that John should remain a party to the proceeding.

Legal principles

Order 18 r 6(2) RSC provides:
6.Misjoinder and nonjoinder of parties
…
(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -
(a)order that any person who has been improperly or unnecessarily been made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;
(b)order that any party who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
but no party shall be added as a plaintiff without his consent signed in writing or in such other manner as may be authorised.
The legal principles regarding joinder are well established. They were considered by the Court of Appeal in Elovalis v Elovalis[29] and summarised by Corboy J in Wurth Australia Pty Ltd v Burgess.[30] It is not necessary that I repeat them.
[29] Elovalis v Elovalis [2008] WASCA 141 (S) [4] ‑ [7].
[30] Wurth Australia Pty Ltd v Burgess [2012] WASC 504 [57] (Wurth Australia), followed in North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilots v Daniel [No 2][2023] WASC 98 [15] (Hill J) (North West Pilots [No 2]) (affirmed in North West Pilots Pty Ltd as trustee for the Port Hedland Pilots Unit Trust trading as Port Hedland Pilotsv Daniel[2023] WASCA 122 [23] ‑ [24] (Buss P, Beech & Vaughan JJA) (North West Pilots v Daniel) and cited with approval in Saffari v State of Western Australia [2024] WASCA 77 [21] (Mitchell JA, Tottle & Seaward JJ).

The Court of Appeal recently distilled the test imposed by O 18 r 16(2) RSC in Saffari v State of Western Australia,[31] as follows:
21… The test imposed by O 18 r 6(2) of the RSC is one of necessity, the question being whether the proposed party's rights against or liabilities to any existing party in respect of the subject matter of the action will be directly affected by any order that may be made in the action. The rule is designed to avoid unnecessary technicality so that the parties may litigate the real issues between them, in an expeditious, efficient and cost-effective way. The purpose of the rule is to ensure that all matters in dispute can be effectually and completely determined and adjudicated upon. The power contained in O 18 r 6(2) of the RSC is discretionary.
[31] Saffari v State of Western Australia [21] - [22].
In Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2],[32] concerning an application to join a party, Smith J stated:
To meet the test for necessity, the question to be answered is not whether it is just or convenient to join the proposed additional defendant but whether, if the proposed additional defendant is not added as a party to these proceedings, its rights will be directly affected by any order which may be made in the action.
[32] Trans Petroleum (Australia) Pty Ltd v United Petroleum (WA) Pty Ltd [No 2] [2022] WASC 460 [116] (Smith J). See also Wurth Australia [57(d)], [57(e)] and the authorities referred to.

The parties' submissions

I do not repeat the parties' submissions. What follows is a summary of their respective submissions.
It was submitted on behalf of Simon, in his capacity as executor of the Estate and as trustee of the Grove Grand Father Trust, that:
1.It is not necessary for John to be a party to the proceeding.
2.Nicholas' claim in this proceeding concerns allegations and seeks relief only against Simon as executor of the Estate. He makes no allegations against or concerning John and seeks no relief against him.
3.John is not a beneficiary under the Deceased's Will. Although he is a claimant in the separate Family Provision Act Claim, his rights and any liabilities will not be directly affected by any orders made in respect of the relief sought in this proceeding.
4.Nicholas' siblings, two other grandchildren of the Deceased, Robert and Cameron, also claim provision out of the Estate in the Family Provision Act Claim and have not been joined as parties to this proceeding. That is because their joinder is also unnecessary.
5.Ordinarily, the only parties to an action such as this, to revoke probate or letters of administration, are those with an interest in the grant either as appointees or as beneficiaries under the instrument or on intestacy.
6.There is no issue in this case as to validity of the Will. It is not disputed that John is entitled to bring a claim for family provision as a son of the Deceased. However, he has no extant interest in the Estate and none that will be directly affected by the orders sought by Nicholas in this proceeding.
7.It is not usual for Family Provision Act claimants to be a party to proceedings to remove an executor. That is because an executor does not owe duties to a Family Provision Act claimant.[33] No right crystalises or arises from a claim under the Family Provision Act in relation to assets or an interest in an estate unless and until the claim for any entitlement to provision from the estate is upheld.[34]
8.Cases in which a claimant for family provision is a party to an action for the removal of an executor generally involve exceptional circumstances, such as where an executor's actions were seriously compromising the Family Provision Act claim. For example, by denuding the estate or administering it in such a way as to deprive the claimant. There is no evidence of that in this case.
9.John's claim in the Family Provision Act Claim is not affected by whether Simon is executor of the Estate or whether an independent person is appointed to that position if Nicholas' claim is successful. John's claim will subsist regardless of any orders made in this proceeding.
10.John's interest is no different to that of Robert or Cameron as claimants for provision in the Family Provision Act Claim, neither of whom have been joined as parties to this proceeding. There is no reason why John should continue to be joined as a defendant to this proceeding.
[33] Referring to Brooks & Anor v Young& Ors [2018] SASCFC 81; (2018) 131 SASR 365 (Brooks) .
[34] Relying on Official Receiver in Bankruptcy v Schultz & Anor (1990) 170 CLR 306; Sawiak v The Public Trustee, unreported; SCt of WA; Library No 930479, pages 21 - 25 (Sawiak) (Barker J).
The submissions made on John's behalf were to the following effect:
1.John is a necessary defendant to the proceeding and entitled to be heard on matters relevant to the determination of Nicholas' application.
2.The focus should be on the relief sought rather than the statement of claim more generally.[35]
3.The question is not whether he has a direct interest in the Estate but rather whether he has an interest in the relief sought in the proceeding. It is John's position that he does have a direct interest in the proceeding and the relief sought because of his claim in the Family Provision Act Claim.
4.John accepts that his interest in the Estate is a contingent interest based upon the success of his claim in the Family Provision Act Claim. However, that is not determinative of whether he will be directly affected by any orders that may be made in this proceeding.
5.John relies on a number of decisions in which relief was granted to a Family Provision Act claimant, including to order the removal of an executor, to support his position that he has an interest that may be directly affected by the relief claimed and the outcome of this proceeding.[36] I consider those decisions and the parties' submissions in relation to them later in these reasons.
6.John should be a defendant because his rights and liabilities will be directly affected by the executor's removal or non‑removal in the same way that the named beneficiaries' rights and liabilities will be affected by the outcome of the proceeding.
7.As observed by Acting Master McDonald in the Directions Proceeding Decision,[37] the beneficiaries named in the Will have no more than a chose in action to compel the due administration of the Estate. There is no basis to distinguish between John and the 'other beneficiaries'.
[35] Referring to North West Pilots [No 2] [27], affirmed in North West Pilots v Daniel [24].
[36] O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan [2021] WASC 168 (O'Sullivan); Public Trustee v Peter Patrick Bebich as executor of the estate of Yanja Bebich (Dec) [2014] WASC 340 (Bebich) [19] (Le Miere J).
[37] Directions Proceeding Decision [103].
Nicholas had not filed an outline of submissions. However, I gave leave for counsel appearing on his behalf to make submissions at the hearing of the Application. Those submissions largely mirrored and endorsed the submissions made on behalf of John.

Determination

In the exercise of my discretion as to whether John should be removed or remain a defendant, as outlined, the critical question is whether his rights against, or liabilities to, any of the other parties in respect of the subject matter of the proceeding will be directly affected by any order that may be made.
I accept the submission made on behalf of John to the effect that the focus should be on the relief sought rather than the statement of claim more generally, as stated by Hill J in North West Pilots.[38]
[38] North West Pilots [No 2] [27], affirmed in North West Pilots v Daniel [24].
The relief sought is the revocation of the grant of probate issued to Simon in relation to the Estate, Simon's removal as executor of the Estate and for the appointment of a replacement administrator and trustee.
Simon argues that, as John is not a beneficiary under the Will, he has no interest in the Estate unless and until his application for provision in the Family Provision Act Claim is determined and an order is made that provision be made for John out of the Estate.
During the administration of an estate, both the legal and beneficial interests in an estate vest initially in the executor. The beneficiaries, being those named as beneficiaries under the will, do not have any interest in the property of the estate. Until an estate has been administered and is ready for distribution, the beneficiaries have no interest in any of the estate property. Rather, they have a chose in action, or personal right, against the executor to compel the proper administration of the estate.[39]
[39] Directions Proceeding Decision [103], citing Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12, 27; Official Receiver in Bankruptcy v Schultz 312 - 313. See also Brooks [87].
Whilst, as John submits, the estate should not be administered while his claim in the Family Provision Act Claim is pending,[40] a claimant for family provision has no proprietary rights in an estate unless and until an order for provision from the estate is made by the court.
[40] Directions Proceeding Decision [103], citing Grove v Fisher & Anor [2002] WASC 247 [55] (Hasluck J).
In Sawiak v The Public Trustee,[41] in considering duties owed by an executor to a claimant for provision under the Inheritance (Family and Dependants Provision) Act 1972 (WA), now the Family Provision Act, Murray J stated:[42]
… Nothing in the Act confers any proprietary right or benefit upon the applicant as a result of the making of the application. Clearly under the statute the applicant's rights to participate in the distribution of the estate derive from the order of the court: Coffey v Bennett [1961] VR 264; McLeod v Johns (1981) 1 NSWLR 347. I think it is clear from the statutory provisions themselves, that upon the making of the order the successful applicant then has a proprietary interest in the estate, but there is nothing to suggest that he or she has the benefit of that interest conferred retrospectively.
…
[41] Sawiak v The Public Trustee, unreported; SCt of WA; Library No 930479 (Murray J).
[42] Sawiak, pages 22 - 23.
In Sawiak,[43] after considering the operation and effect of ss 10 and 14 of the Inheritance Act, Murray J affirmed his view by reference to the High Court's decision in Official Receiver in Bankruptcy v Schulz,[44] in which the court stated:
The right to which any beneficiary has in an unadministered estate springs from the duty of the executor to administer the estate, to preserve the assets and to deal with them in the proper manner. Each beneficiary has an interest in seeing that the whole of the assets are treated in accordance with the executor's duties. …[45]
[43] Sawiak, pages 23 - 25.
[44] Official Receiver in Bankruptcy v Schultz & Anor (1990) 170 CLR 306, 313 - 314 (Schultz) (Mason CJ, Brennan, Deane, Dawson, Gaudron JJ).
[45] Schultz, 313.
After considering Schultz,[46] Murray J concluded in Sawiak, relevantly, that the rights of a successful claimant for family provision and the duties owed to that person by an executor and trustee once an order for provision is made, are effectively merged with those of the other beneficiaries under the will as it was originally framed.[47]
[46] Schultz, 313 - 317.
[47] Sawiak, pages 24 - 25.
It was submitted on behalf of Simon, in effect, that it would only be in exceptional circumstances that a claimant for family provision would be a party to a proceeding such as this. In response, John's and Nicholas' counsel referred to decisions of this court in which an applicant for provision was a party to proceedings seeking relief against an executor concerning the administration of an estate.
The first of those was a decision of Master Sanderson in O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan.[48] In that case, the Master heard two separate but related applications made by the plaintiff, one for an order for provision under the Family Provision Act and the other for removal of the first defendant as executor of the relevant estate. John points to the fact that the plaintiff in that case was not a beneficiary under the deceased's will and submits that the plaintiff's Family Provision Act claim gave rise to the requisite standing to apply to remove the executor.[49]
[48] O'Sullivan v O'Sullivan Executor of the Estate of JM O'Sullivan [2021] WASC 168 (O'Sullivan).
[49] O'Sullivan [8].
It was argued that it follows from O'Sullivan, by parity of reasoning, that John has standing to be a defendant to an application to remove an executor. In O'Sullivan, the Master stated that the executor's failure to discharge his duties was readily apparent and his behaviour was 'nothing short of reprehensible.' He stated that the defendant executor in that case had taken no part in the proceedings and had failed in his obligation to respond to proceedings brought in relation to the estate. The Master stated that, without more, such failure would in most circumstances justify the removal of the executor. He said the position in that case was worse. The executor had threatened the plaintiff with violence if she brought a claim against the estate and had threatened to destroy property forming part of the estate.[50]
[50] O’Sullivan [8].
There is no suggestion of any such behaviour by the executor in this proceeding. In any event, it appears the orders made for removal of the executor in O'Sullivan were made following orders having been made for provision. That is not the case here. John's claim in the Family Provision Act Claim is yet to be determined. No orders have been made.
John's and Nicholas' counsel also referred to Public Trustee v Peter Patrick Bebich as executor of the estate of Yanja Bebich (Dec)),[51] in which Le Miere J held that the court has jurisdiction to grant an injunction on the application of an applicant for family provision to restrain an executor from disposing of or distributing property pending determination of the application for provision.
[51] Bebich [19].
The circumstances of that case also differ from those in this proceeding. In Bebich, the plaintiff had made a claim for provision pursuant to s 6 of the Family Provision Act. The sole executor was on notice of the claim and proceeded to transfer real property of the estate to himself and his brother as tenants in common in equal shares. Shortly after, a mortgage was registered against the property securing a loan facility for their benefit or for the benefit of their businesses.[52] Approximately six months after the proceedings were commenced, the court ordered, by consent of all parties, that the grant of probate issued to the executor be revoked, and there be a grant in favour of the Public Trustee in solemn form of the will.[53]
[52] Bebich [3] - [4].
[53] Bebich [5].
The court was satisfied on the facts applicable in Bebich, as outlined in the reasons for decision, that it was appropriate to restrain the executor and his brother from selling, disposing of, or encumbering or otherwise dealing with the real property of the estate until the Family Provision Act proceeding had been resolved.[54] However, that does not, in my view, support the submissions made by John and Nicholas to the effect that John is a necessary defendant in this proceeding. Whether someone is a necessary party must be considered and determined by reference to the circumstances of each case, and whether the party or proposed party's rights and liabilities will be directly affected by an order that may be made in the proceeding.
[54] Bebich [37].
John states that his rights and liabilities will be directly affected by the executor's removal or non‑removal in the same way that the named beneficiaries' rights and liabilities will be affected by the outcome of the proceeding. However, he has not articulated why that is so. John is not a plaintiff seeking revocation of the grant of probate or Simon's removal and replacement as executor.
In light of the concessions made, John does no more in his defence than admit the allegations made by Nicholas against Simon, except for paragraphs 32A - 32F to which John does not plead. John is not a beneficiary under the Will. No relief is sought against him.
There is no suggestion that Simon, as executor of the Estate, has acted in a way that may denude the Estate so as to disadvantage John, or to otherwise deprive him of the provision he seeks, for example, by disposing of assets from which provision may ultimately be made for John if his claim is successful.
Neither John nor Nicholas have adduced any evidence to demonstrate this is a case in which the circumstances are such that John, as a Family Provision Act claimant, has any rights or liabilities that will be directly affected by any order that may be made in this proceeding. It is not necessary, in my view, that John should be a party to it.

Conclusion and orders

For these reasons, the second defendant's application for an order that John be removed as the sixth defendant in this proceeding pursuant to O 18 r 6(2)(a) RSC should be and is granted.
I will hear from the parties to the Application as to the final form of orders and in relation to the costs of the Application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
8 OCTOBER 2024