(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)
21 May 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - TRUSTS AND DECEASED ESTATES - STATUTORY PROVISIONS IN TRUSTEE ACTS
LIMITATION OF ACTIONS - LIMITATION OF PARTICULAR ACTIONS - TRUSTS AND DECEASED ESTATES - ACTIONS AGAINST DECEASED ESTATES
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - OTHER MATTERS
On 17 November 2006, Kathleen Florence Elliott (the deceased) made her last will and testament, under which she appointed the first and third respondents as her executors and trustees. She subsequently died on 27 January 2007. The appellant and the first respondent are the deceased’s children.
Since 2015 the appellant has foreshadowed various claims against the executors but has not prosecuted those claims. A Master ordered that notices be issued, allowing the applicant six months in which to either withdraw or commence those claims. The appellant did not withdraw or commence the “Notified Claims” by 5 January 2020.
On 24 September 2020 orders were made under s 29(2) of the Trustee Act 1936 (SA), barring the appellant from instituting any proceedings against the executors in respect of the Notified Claims.
The executors also applied under s 69 of the Administration and Probate Act 1919 (SA) for advice or direction as to how to proceed with the administration of the estate. The orders included advice or direction as to the distribution of the assets of the estate and as to costs.
The appellant appealed against this decision.
Held (by the Court), dismissing the appeal:
1. Section 29(2) of the Trustee Act 1936 (SA) confers a discretionary power to extend time and mould barring orders in any manner the Court “deems just”. Observations made about the history and operation of the Trustee Act and The Administration and Probate Act 1919 (SA).
2. While the burden rests upon the representative or trustee applying under s 29(2) of the Trustee Act 1936 (SA) to show that a barring order should be made, where a claimant fails to withdraw or prosecute claims within six months, the claimant bears an evidentiary onus to demonstrate why no order should be made.
3. The appellant has engaged in egregious delay without any satisfactory explanation over many years. Even allowing for the demands of other proceedings and chronic ill-health, the appellant has had a reasonable opportunity to pursue his claims. The appellant has not properly explained his failure to institute proceedings, including during the six months to 5 January 2020.
4. The appellant’s various claims are not reasonably arguable, or at least have not been shown by him to be reasonably arguable. Even if the appellant’s claims had merit, his long delay is a significant matter to be weighed in the exercise of discretion. Administrations are not to remain in stasis. It is not…
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.
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AGLC
Hall v Carney (No 3) [2021] SASCA 37
Case
[2021] SASCA 37
Decision Date
CaseChat Overview and Summary
The appeal concerned the administration of a deceased estate, brought by the appellant claimant against the executors. The dispute centred on the executors' application for a barring order under section 29(2) of the *Trustee Act 1936* (SA) to prevent the claimant from pursuing certain claims against the estate. The Full Court of the Supreme Court of South Australia was required to determine whether to uphold the barring order made by the primary judge.
The court considered the scope of the discretionary power conferred by section 29(2) of the *Trustee Act 1936* (SA), which allows a court to extend time and mould barring orders as it deems just. While acknowledging that the onus is on the trustee or representative to justify a barring order, the court observed that a claimant who fails to withdraw or prosecute claims within the prescribed six-month period bears an evidentiary onus to demonstrate why such an order should not be made. The court also examined the principles governing the administration of deceased estates, emphasizing the public interest in avoiding undue delay and the need for administrations to conclude.
The Full Court reasoned that the appellant had engaged in prolonged and unexplained delay in pursuing his claims, even after being afforded reasonable opportunities and considering his personal circumstances. Furthermore, the court found that the appellant's claims were not reasonably arguable, or at least had not been demonstrated to be so. Even if the claims possessed merit, the significant delay was a substantial factor weighing against the appellant. Consequently, exercising its discretion, the court deemed it just to make a barring order in respect of the notified claims to bring the administration of the estate to a conclusion. The appeal was dismissed, and the appellant was ordered to bear half the costs incurred by the executors in responding to his unreasonable inquiries.
Orders
Orders of the court
Held (by the Court), dismissing the appeal:
1. Section 29(2) of the Trustee Act 1936 (SA) confers a discretionary power to extend time and mould barring orders in any manner the Court “deems just”. Observations made about the history and operation of the Trustee Act and The Administration and Probate Act 1919 (SA).
2. While the burden rests upon the representative or trustee applying under s 29(2) of the Trustee Act 1936 (SA) to show that a barring order should be made, where a claimant fails to withdraw or prosecute claims within six months, the claimant bears an evidentiary onus to demonstrate why no order should be made.
3. The appellant has engaged in egregious delay without any satisfactory explanation over many years. Even allowing for the demands of other proceedings and chronic ill-health, the appellant has had a reasonable opportunity to pursue his claims. The appellant has not properly explained his failure to institute proceedings, including during the six months to 5 January 2020.
4. The appellant’s various claims are not reasonably arguable, or at least have not been shown by him to be reasonably arguable. Even if the appellant’s claims had merit, his long delay is a significant matter to be weighed in the exercise of discretion. Administrations are not to remain in stasis. It is not in the public interest that the due administration of estates be delayed.
5. In the exercise of this Court’s discretion, it is just that a barring order be made in respect of the Notified Claims pursuant to s 29(2) of the Trustee Act 1936 (SA) to bring the administration of this estate to a conclusion.
6. It was appropriate to direct that the appellant meet half the costs incurred by the executors in dealing with his unreasonable questions, requests and correspondence.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In our opinion, it is just that a barring order be made in respect of the Notified Claims pursuant to s 29(2) of the Trustee Act. It is time that the administration of this estate be brought to a conclusion.Conclusion To the extent that the appellant otherwise challenges the advice or directions given under s 69 of the Administration and Probate Act1919 (SA), or the determination and order made regarding costs under appeal ground 4, we dismiss that ground of appeal. Whilst we would allow appeal ground 1, on a re-exercise of discretion we too would make a barring order under s 29(2) of the Trustee Act. Strictly, that makes it unnecessary to make any orders regarding the other grounds of appeal. In the result, the appeal must be dismissed and we will hear from the parties regarding the form of the orders and as to costs.