Hewitt v Gardner

[2009] NSWSC 705

CITATION:	Hewitt v Gardner; Hewitt v Gardner [2009] NSWSC 705
HEARING DATE(S):	14 July 2009
JUDGMENT DATE :	24 July 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Ward J
DECISION:	Orders made under r 7.10
CATCHWORDS:	SUCCESSION - family provision and maintenance – practice – plaintiffs commenced proceedings under Family Provision Act – no general grant of probate or administration – limited grant obtained under former s 41A of Probate and Administration Act prior to commencement of proceedings – whether appropriate to appoint representative of estate or continue in absence of representative under UCPR 7.10 – order made to continue in absence of representative of estate. - PRACTICE – commencement of proceedings – parties – proceedings commenced seeking, inter alia, to set aside transaction of deceased on grounds of undue influence – no general grant of probate or administration – chose in action formed part of the estate – whether plaintiffs had standing to pursue undue influence claim – whether proceedings a nullity – whether representative of estate should be appointed under UCPR 7.10 – whether power exists to do so – held that plaintiffs had no standing to pursue undue influence claim – proceedings not a nullity as plaintiffs had standing in respect of other claims brought in the proceedings – representative appointed in respect of undue influence claim under UCPR 7.10.
LEGISLATION CITED:	Chancery Procedure Act 1852 (15 & 16 Vic c 86) Contracts Review Act 1980 Family Provision Act 1982 Probate and Administration Act 1898 Succession Act 1981 (Qld) Supreme Court Act 1970 Supreme Court Rules Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	Aliperti v Official Trustee [2000] NSWSC 315 Australian Coastal Shipping Commission v Curtis Cruising Pty Limited (1989) 17 NSWLR 734 Bridgewater v Leahy (1998) 194 CLR 457 Bridgewater v Leahy (QCA, unreported, 14 March 1997) Chalker v Barwon Coast Committee [2005] VSCA 101 Chetty v Chetty [1916] 1 AC 603 Cockerill v Westpac Banking Corporation (unreported, FCA, 9 March 1992) Darrington v Caldbeck (1990) 20 NSWLR 212 Dean & Chapter of Ely v Gayford (1853) 51 ER 896; 16 Beav 561 Deveigne v Askar (2007) 69 NSWLR 327 Estate of Harriett Cassel [2000] NSWSC 294 Finnegan v Cementation Co Ltd [1953] 1 QB 688 Fowler v Bayldon (1853) 9 Hare App 78 Francis v National Mutual Life Association of Australasia Limited [1999] 2 Qd R 355 Gertsch v Roberts (1993) 35 NSWLR 631 Gibson v Wills (1856) 21 Beav 620; 52 ER 999 Government Insurance Office v Johnson [1981] 2 NSWLR 617 Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 Haq v Singh [2001] EWCA Civ 957 Hele v Lord Bexley (1852) 15 Beav 340; 51 ER 569 Hilton v Sutton Steam Laundry [1946] 1 KB 65 Ingall v Moran [1944] 1 KB 160 Leue v Reynolds (1986) 4 NSWLR 590 Long v Storie (1853) Kay App 12; 69 ER 317 Maridive & Oil Services (SAE) v CNA Insurance Company (Europe) Limited [2002] EWCA Civ 369 Marshall v DG Sundin & Co Pty Limited (1989) 16 NSWLR 463 McGee v Yeomans [1977] 1 NSWLR 273 Minister of State for the Interior v R T Co Pty Limited (1962) 107 CLR 1 Noble v State of Victoria [2000] 2 Qd R 154 Nock v Austin & Anor (1918) 25 CLR 519 Phipps v Australian Leisure and Hospitality Group Limited [2007] 2 Qd R 555 Pinney v Hunter (1877) 6 Ch D 98 Pratt v Estate of O'Sullivan [2005] NSWSC 1046 Re Grey Smith, deceased [1978] VR 596 Re J Hart, deceased; Smith v Clarke [1963] NSWR 627 Robertson v Kemble [1867] WN 305 Ronan v Watson; Re Estate of Quigley deceased [2002] NSWSC 600 Scallan v Scallan [2001] NSWSC 1129 Smith v Henniker-Major & Co [2002] EWCA Civ 762 Stone v ACE-IRM Insurance Broking Pty Limited [2004] 1 Qd R 173 Tarratt v Lloyd; Green v Green (1989) 17 NSWLR 343 Thomas v National Australia Bank Limited [2000] 2 Qd R 448 Vukic v Grbin [2006] NSWSC 41 Watkins v Combes (1921) 29 CLR 317 Weldon v Neal (1887) 19 QBD 394 Willoughby v Clayton Utz [2007] HCATrans 305 Willoughby v Clayton Utz [2007] WASCA 5 Wingrove v Thompson (1877) 11 Ch D 419
TEXTS CITED:	Daniell’s Chancery Practice (4th ed, 1866) Ritchie’s Uniform Procedure NSW Succession Law & Practice NSW
PARTIES:	Nita May Hewitt (First Plaintiff in both matters) Ronald Malcolm Gardner (Second Plaintiff in both matters) Nancy Ellen Hart (Third Plaintiff in both matters) Margaret Patricia Lipscome (Fourth Plaintiff in both matters) Jennifer Mary Bingham (Fifth Plaintiff in both matters) Shirley Ann Evans (Sixth Plaintiff in both matters) Pam Louise Brooks (Seventh Plaintiff in both matters) Lysle Brooks (Eighth Plaintiff in 2046 of 2008) Joy Lynette Gardner (Defendant in both matters)
FILE NUMBER(S):	SC 2693 of 2007; 2046 of 2008
COUNSEL:	M Bridger (Plaintiffs) M Lawson (Defendant)
SOLICITORS:	John Moon (Plaintiffs) R&M Legal (Defendant)

- 39 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

FRIDAY 24 JULY 2009.

2693/07 NITA MAY HEWITT & ORS V JOY LYNETTE GARDNER – ESTATE OF ESSIE LILA LIPSCOMBE
2046/08 – NITA MAY HEWITT & ORS V JOY LYNETTE GARDNER

JUDGMENT

1 On 14 July 2009, the second day of the hearing in this matter, I gave certain rulings in relation to the constitution of the respective proceedings before me as it appeared to me that it was necessary for the foundation on which the proceedings were brought to be clarified before the hearing proceeded further. In so doing, I gave a very brief outline of my reasons and indicated that I would publish my written reasons, which I now do.

Proceedings

2 The defendant in both proceedings, Joy Lynette Gardner, is the executrix named in the last will made by her mother (Essie Lila Lipscombe) in 2003 (to which a codicil was made in 2004) before her death in 2006. Ms Gardner has not sought to take out a grant of probate. I was informed that this was because the assets of the estate are minimal unless the claims made in these proceedings result in the family home of the deceased forming part of the estate or notional estate of the deceased.

3 There are two sets of proceedings before me. Orders have been made that they be heard together and that evidence in each be evidence in the other.

4 In the first set of proceedings (2693 of 2007), claims under s 7 of the Family Provision Act 1982 have been brought by seven of the eight children of the deceased seeking that provision be made for them out of the estate of the deceased. In those proceedings, an order is sought for the designation of the family home (which was transferred to Ms Gardner in 2004) as notional estate of the deceased. I refer to those as the Family Provision Act proceedings.

5 In the second set of proceedings (2046 of 2008), claims have been brought by the same seven siblings and Mr Lysle Brooks (one of the deceased’s sons-in-law, who was named as the executor in an earlier 1995 will) seeking an order setting aside the inter vivos transfer of the family home to Ms Gardner in 2004 , a declaration that the 2003 will and the 2004 codicil are invalid and an order that there be a grant of probate to Mr Brooks in respect of 1995 will. I refer to those as the undue influence proceedings.

Issues

6 During the course of the opening submissions in this matter, Counsel for Ms Gardner (Mr Lawson) drew my attention to a number of difficulties in the constitution of the respective proceedings.

7 First, in relation to the Family Provision Act proceedings, Mr Lawson informed me that Mrs Nita May Hewitt had obtained a limited grant under the former s 41A of the Probate and Administration Act 1898 to enable her to bring these proceedings. As one of the deceased’s daughters, she is an eligible person to bring (and has in these proceedings brought) her own claim for provision out of the estate of the deceased. Mr Lawson noted that she had been not been joined as the defendant in the proceedings on behalf of the estate (nor, as her Counsel, Mrs Bridger, notes, could she have been joined as both plaintiff and defendant in the one proceedings). Mr Lawson’s concern was that in the absence of a party separately representing the estate (other than by way of the limited s 41A grant), if the court were to make an order designating as notional estate the family home, and then to make orders for the maintenance of one or more of the plaintiffs, there would be no mechanism for making any order binding an executor or administrator to pay out the proceeds of the estate to any of the plaintiffs.

8 Secondly, in the undue influence proceedings, it was noted by Mr Lawson that there is no one who stands in the shoes of the estate. The estate is unrepresented in those proceedings. (Mrs Hewitt’s s 41A grant is limited to the conduct of the Family Provision Act proceedings.)

9 Thirdly, one of the beneficiaries under the 2003 will (as it was prior to the execution of a codicil in 2004) (Mrs Patricia McLeod, who is the daughter of one of the plaintiffs in both sets of the proceedings (Mrs Patricia Margaret Lipscombe) and a granddaughter of the deceased), is not a party to either set of proceedings. Insofar as the validity of the 2004 codicil is challenged and she would, if that challenge were to succeed, be entitled under the 2003 will to a contingent interest in the residue of the estate, it was said that she should be notified and given an opportunity, if she wished, to be heard in both sets of proceedings.

10 The third issue is the most readily dealt with, in that I was informed by Mrs Bridger that that her instructions (which I have no reason to doubt) are that Mrs McLeod has been made aware of the proceedings throughout the course of the matter to date and that she does not wish to be heard in relation to the proceedings. Given that it was apparent by the second day of the hearing that the hearing was unlikely to be completed within the three days initially fixed for hearing, it seemed to me there was opportunity for any deficiencies in the process of notification to Mrs McLeod to be rectified before the conclusion of the hearing.

Family Provision Act Proceedings

11 As to the first issue, Mrs Bridger referred me to a decision of the former Chief Judge in Equity (Young J as he then was), which I assume to be that in Re Estate of Harriett Cassel [2000] NSWSC 294, in which Mrs Bridger noted that a similar issue had arisen. In Cassel, the court had been unable to make a final grant of probate or letters of administration because of doubt as to which was the testatrix’ last will.

12 Young J referred to the decision of Hodgson J (as his Honour then was) in Leue v Reynolds (1986) 4 NSWLR 590 suggesting that it had provided the mechanism by which the plaintiff in Cassel could there “save” its proceedings. In Leue v Reynolds, Hodgson J had held that the references in s 41A to the making of an application under the Family Provision Act referred to the whole process of making an application from the time of commencement of proceedings up to the time of making of a final order. His Honour had noted that s 41A(3), as it then stood, expressly empowered the court to grant administration under s 41A to a person who it was satisfied was an eligible person under that Act.

13 In Cassel, Young J said (at [7]-[9]):

The practice of the former Probate Division was to make a grant under s 41A whenever there was evidence that an eligible person requested it. The reason for this is that the Court has taken the view that the purpose of the section is merely to enable Family Provision Act applications to be made within 18 months of the date of death and the section was inserted so that defendants could not frustrate the proceedings by delaying the taking out of a grant. This is reinforced by the Supreme Court Rules. Part 78(26A) provides that an application for a grant will be in Form 105A. This form is drafted on the assumption that the person to get the grant is either the plaintiff being the eligible person, or the plaintiff on behalf of the eligible person, presumably in a situation where the eligible person is under a disability.

The grant under s 41A is not a grant entitling the grantor to administer the estate in any way at all. It is a grant purely to get over the barrier that would otherwise prevent an application being made under the Family Provision Act.

Accordingly, what usually occurs in this sort of case is that a grant is made to the plaintiff who is about to bring proceedings under the Family Provision Act. The Court, when hearing those proceedings, then needs to appoint a person to represent the estate under Part 8 rule 16 [the precursor to UCPR 7.10] , or some other rule under Part 8. (My emphasis)

14 (His Honour went on to comment that “all this seems rather pointless” on the basis that a grant of this kind was, his Honour considered, purely to remove the barrier to the Family Provision Act claim and, since it did not provide for the administration of the estate or provide authority for anyone to inquire as to the deceased’s assets or identity or wishes of the beneficiaries, it was then left to a plaintiff to make a series of applications (to the Probate Division for a grant and to the Equity Division for directions as to who should be a representative defendant), those costly applications in his Honour’s view conferring no real benefit on anyone.)

15 However, although the usual practice following a s 41A appointment may be for the court, when hearing the proceedings, then to appoint an authorised representative for the estate, this is not always the course which is adopted. In Vukic v Grbin [2006] NSWSC 41, Brereton J, dealing with an application which had been brought under the Family Provision Act by a person who had obtained a limited s 41A grant for the purposes of the proceedings, said (at [4]):

Save for the limited s 41A grant to the Plaintiff, there is no formal representative of the estate, which has an interest in the proceedings. However, all the persons interested in the estate are parties and have notice of the proceedings, and in those circumstances I am satisfied that it is appropriate to order, pursuant to UCPR r 7.10(2)(a), that the proceedings continue in the absence of a representative of the estate.

16 There, notice had been given to all other eligible persons within category (b) of the definition of that term under s 6(1) of the Family Provision Act and those persons had been joined to the proceedings (though they had not appeared on the hearing of the application).

17 Relevantly, for present purposes, in terms of the relief granted in that case, Brereton J (having noted that one executor named in the will had renounced and that the other showed no inclination to apply for a grant of probate) said (at [47]):

In order to give effect to the orders I propose to make, it would ordinarily be necessary for the Plaintiff to obtain a grant of administration cta . However, under Family Provision Act , s 15(1)(a)(v), the court can make a vesting order which has the same effect as a vesting order under the Trustee Act 1925 (NSW), s 78.

18 Accordingly, I do not consider that the way in which the Family Provision Act proceedings have been commenced and conducted in this case necessarily gives rise to the difficulty foreshadowed Mr Lawson. It seems to me that there are two ways in which to proceed at this stage. Either a party can be appointed as authorised representative of the estate pursuant to r 7.10(2)(b) of the Uniform Civil Procedure Rules for the purposes of representing the estate’s interest in the proceedings or an order can be made pursuant to r 7.10(2)(a) that the proceedings continue in the absence of a representative of the estate. Any orders made will therefore be binding upon any person who subsequently obtains a grant of probate or administration (which may depend on the outcome of the undue influence proceedings) and, in the absence of such a grant, any problems of enforcement of orders at the end of the case may be met by the making of appropriate vesting orders under s 15(1)(a)(v) of the Act.

19 Subject to being satisfied that Patricia McLeod has been properly notified of (and given an opportunity to make any submissions she may wish to make in relation to) the proceedings, I consider this is an appropriate case in which to proceed in the absence of a representative of the estate. All of the beneficiaries under the respective wills (and the named executors under the respective wills) are parties to the proceedings (with the exception of Mrs McLeod).

20 Accordingly, on 13 July 2009, I ruled that an order be made under r 7.10(2)(a) that the Family Provision Act proceedings continue in the absence of a representative of the estate, subject only to there being formal notification to Mrs McLeod of the proceedings (including provision of a copy of the pleadings and transcript, unless she indicates she does not wish to receive the transcript) so as to enable Mrs McLeod to obtain independent legal advice and to confirm to the court (if that be the case) that she does not wish to be heard in relation to the Family Provision Act proceedings (or, if she does, so that she may be joined and may file evidence and make submissions in due course).

Undue influence proceedings

21 The second issue raised by Mr Lawson is rather more complicated.

22 The undue influence proceedings, broadly speaking, raise two separate claims as summarised earlier – first, a challenge (based, among other things, on a claim that the relationship between Ms Gardner and her mother was one giving rise to a presumption of undue influence) to the inter vivos transfer to Ms Gardner by the deceased in 2004 of the whole of the interest in the family home for a consideration of one dollar; and the second being a challenge to the validity of the 2003 will and 2004 codicil (based on the ‘suspicious circumstances’ doctrine of probate law as considered in Ronan v Watson; Re Estate of Quigley deceased (Burchett AJ) [2002] NSWSC 600; Nock v Austin& Anor (1918) 25 CLR 519) and an application for a grant of probate to Mr Brooks in respect of the 1995 will. I will refer to those separate claims as the inter vivos undue influence claim and the probate claim.

23 As to the inter vivos undue influence claim, Mrs Bridger made it clear that the plaintiffs do not assert actual undue influence. Rather it is alleged that there was such a relationship of dependency or reliance upon Ms Gardner by the deceased that (unless rebutted by Ms Gardner) undue influence will be presumed as a matter of law.

24 As to the probate claim, again Mrs Bridger says that there is no onus on the plaintiffs to prove actual undue influence of the kind required as a matter of probate law. Rather, Mrs Bridger submitted that in a “suspicious circumstances” case there is not an onus on the plaintiffs to prove the invalidity of the will and codicil but, rather, that in circumstances where Ms Gardner was said to be instrumental in the framing of a will and obtained a bounty by that will, there is an onus upon her to show the righteousness of the transaction. It was conceded, as I understand it, by Mrs Bridger that the probate claim is one which would ordinarily be the subject of an application in the Probate List of the Equity Division.

· Standing

25 While it is not disputed that the plaintiffs, as beneficiaries, have standing to challenge the will and codicil, whether by reference to the suspicious circumstances doctrine or otherwise, as they have done in the probate claim, it seems clear that they do not have standing to bring the inter vivos undue influence claim; that being a chose in action held by the estate.

26 In Scallan v Scallan [2001] NSWSC 1129, Windeyer J considered an application by a beneficiary to set aside certain (inter vivos) transactions by the deceased on the grounds of either undue influence or unconscionable conduct, or in the alternative under the Contracts Review Act 1980. The proceedings before his Honour had been instituted at a time when there were contested probate proceedings that had not been determined and therefore there had been neither a grant of probate nor a grant of administration (general or limited) in the estate of the deceased. Windeyer J said (at [9]-[12]):

The chose in action being the cause of action for undue influence and setting aside the transactions relevant to the present proceedings was an asset vested in Gail Anne Scallan, now deceased. It would continue after death for the benefit of her estate. At the present time no legal personal representative of her estate has been appointed. The defendant’s claim on the notice of motion is that the plaintiff has no standing to bring the action, that it is therefore a nullity and that it should be dismissed.

The argument of the plaintiff is that she is a beneficiary under the 1997 will of which her brother is executor; that clearly enough he would not be willing to bring an action in undue influence against himself, even if that were possible; that therefore the position of the plaintiff is analogous to that of a beneficiary seeking to bring proceedings for enforcement of a right of action vested in a trustee which the trustee refuses to bring. Counsel for the plaintiff relied on a number of cases including Ramage v Waclaw (1988) 12 NSWLR 84; Hilliard v Eiffe [1874] LR 7 HL 39 and Hayim v Citibank NA [1987] AC 730. None of these cases really bear upon the situation. In all of them there was a legal personal representative of the estate or trustee of a trust, who either refused to take action or was unwilling to do so. It is not necessary to write a treatise on this interesting subject. In Marshall v D G Sundin & Co Limited (1989) 16 NSWLR 463, it was held that proceedings by a named executor before a grant were a nullity. That decision was followed in Darrington v Calderbeck – Caldbeck ] (1990) 20 NSWLR 212. The power to appoint a person to represent an estate given by Pt 8 r16 of the Rules cannot assist if the proceedings cannot be instituted without such order. The difficulty can be solved in appropriate cases by obtaining a grant of administration ad litem. That is not to say that the present claim would have been a case for the appointment of Victoria as administrator as the claim which she wishes to make in these proceedings is contrary to the claim which she makes in the probate action.

As a final fall back the plaintiff relies on s61 of the Wills Probate and Administration Act 1898 . The plaintiff’s solicitor has written to the Public Trustee asking whether he would be prepared to be substituted as plaintiff or joined as co-plaintiff. Not surprisingly the Public Trustee has replied saying that s61 does not give him any active role. The plaintiff says that as the estate of the deceased is deemed to be vested in the Public Trustee and as he is unwilling to take proceedings, then by analogy to the cases where a beneficiary is entitled to bring proceedings on behalf of an estate or on behalf of a trust, if the executor or trustee refuses to do so, then she should be held so entitled in this case.

I do not consider that this argument has substance. Without going into the matter in detail, I consider it is established by ex parte The Public Trustee re Birch (1951) 51 SR NSW 345 that the fact the estate of the deceased before grant is deemed to vest in the Public Trustee “in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary” does not mean that the Public Trustee has power, in respect of the estate of a deceased person before grant of administration, to bring an action to recover property transferred as a result of undue influence or unconscionable conduct. Andrews v Hogan (1952) 86 CLR 223, which held that a notice to quit can be served on the Public Trustee, and perhaps that the Public Trustee has capacity to surrender a lease, does not go so far as to hold that the Public Trustee would be empowered under s61 to commence the action the plaintiff purports to bring as representative of the estate. In Foy v Public Trustee (1942) 64 SR(NSW) 209 at 211, Roper J held there was no such power. As power to take possession of assets and to hand them to the administrator for distribution does not extend to power to pursue a chose in action in Court proceedings; refusal to do so cannot be relied upon as a ground to entitle a beneficiary to take proceedings on behalf of the estate. It must be remembered that limited grants for the purpose of bringing actions can be made in appropriate circumstances. Assuming that the chose in action is vested in the Public Trustee (which it is) and the Public Trustee has power to take action to recover it, (which he has not) it would not be appropriate for a beneficiary in the estate to take action on the basis that the Public Trustee refused to do so. The appropriate course would be to apply for a limited grant for appointment of an administrator ad litem who would then pursue the claim. (my emphasis)

27 For the reasons extracted above, his Honour considered the proceedings to be a nullity but said that, had he not come to the conclusion that the proceedings should be dismissed, he would have thought it appropriate that they be stayed pending the determination of the contested probate proceedings in relation to the will of the deceased.

28 The present proceedings can, however, be distinguished on a factual basis from those facing his Honour in Scallan, and the difficulty raised by Mr Lawson can be disposed of, on the basis that the plaintiffs (as beneficiaries and, in the case of Mr Brooks, as the executor named in the previous will) have standing to bring the probate claim made in the undue influence proceedings.

29 Although these proceedings were commenced in the General Equity List and not the Probate List, what Mr Brooks is seeking in that part of the Statement of Claim dealing with the probate claim is a grant of probate in solemn form of the 1995 will. The relevant procedures where an executor seeks probate of an earlier will, in circumstances where there are doubts as to the validity of a later document were discussed by Murphy J in Re Grey Smith, deceased [1978] VR 596. That judgment also contained useful discussion (with which Young CJ in Eq, as his Honour then was, relevantly agreed in Pratt v Estate of O'Sullivan [2005] NSWSC 1046 at [4]) concerning the relevant onus in such cases (see also those cases discussed at [6077] of Succession Law & Practice NSW). There can be no doubt that Mr Brooks has standing to commence proceedings in respect of such a claim and that the other plaintiffs have sufficient interest to be heard in those proceedings. The fact that the proceedings, insofar as they relate to the probate claim, were commenced in the wrong list can have no impact on the plaintiffs’ standing or upon the jurisdiction to grant the relief sought (see Pinney v Hunter (1877) 6 Ch D 98, in which proceedings were commenced in the wrong division).

30 Therefore, notwithstanding that the probate claim has been somewhat irregularly brought, there are presently on foot proceedings which can be pursued irrespective of the fact that the plaintiffs have no standing to bring or pursue the inter vivos undue influence claim. The undue influence proceedings cannot be said to be wholly a nullity and in those circumstances, I consider there is power under r 7.10 for me to appoint a representative of the estate to maintain the proceedings in relation to the inter vivos undue influence claim. There does not need to be a representative in respect of the probate claim in which the representation of the estate is the very point in issue.

31 In circumstances where the estate (even if it were to include the family home) is very small (and if I were to dismiss the proceedings as a nullity it would remain open to the plaintiffs, by seeking the appointment of an administrator ad litem, later to seek to recommence the same claims) it seems to me that it is consistent with the just, quick and cheap resolution of the matters in dispute between the parties to proceed by way of the appointment of an authorised representative where that is a course open to me to adopt.

· Nullity

32 For the reasons set out above, I do not strictly need to deal with the question of nullity, as the plaintiffs have standing to pursue at least some of the claims made in the proceedings as presently constituted. However, in case the issue does become relevant, I consider below the question whether, if limited to the inter vivos undue influence claim, the proceedings would have been an incurable nullity or could have been saved by the operation of r 7.10

33 In Watkins v Combes (1921) 29 CLR 317, the High Court considered a case where, prior to any grant of probate, proceedings were commenced by beneficiaries under the two wills of the deceased against the executors named in the two wills (and the wife of the executor named in the later will), seeking, among other things, a declaration that an inter vivos transfer of real property to the executor of the later will (and his wife) was void as having been obtained by fraud and undue influence. The beneficiaries having succeeded before Crisp J in the Supreme Court of Tasmania, the executor of the later will (and his wife) appealed to the High Court. In relation to the transfer of the real property, the appellants argued that the beneficiaries had no cause of action prior to a grant of probate. Knox CJ succinctly delivered the judgment of the court, in one sentence: “We are all of the opinion that there is a fatal defect as to parties”.

34 The relevance of a conclusion as to nullity for present purposes, lies in the conclusion reached by Yeldham J in Marshall v DG Sundin & Co Pty Limited (1989) 16 NSWLR 463 and followed by Windeyer J in Scallan that Pt 8 r 16 (the precursor to r 7.10) could be of no assistance where the proceedings were incompetent from their commencement.

35 In Bridgewater v Leahy (QCA, unreported, 14 March 1997) the beneficiaries under a will of the deceased had commenced proceedings without standing but, when the matter came before the Queensland Court of Appeal, an order was made nunc pro tunc that they be given leave under the rules of court and the Succession Act 1981 (Qld) to bring the proceedings. Fitzgerald P said the following of the issue:

As I understand the respondents' argument that the appellants lack standing, it is not disputed that, if the testator had a cause of action against the respondents to set aside the gift, that right survived his death: Succession Act 1981, subs66(1). However, the respondents' contention is that only the executor could commence and prosecute such an action after the testator's death, and that, although he refused to do so, as the appellants pleaded, the beneficiaries were not entitled to do so even though the relief sought by the appellants is that the money allegedly payable by the respondents be paid to the executor of the deceased's will, with the obvious intent that it be dealt with by him in accordance with that will.

The appellants should have obtained an order giving them leave to bring the action against the respondents before doing so: Succession Act 1981, subs49(2); RSC O33 r9 [sic – presumably meaning O3 r9]. However, if such an order is appropriate, leave can be granted nunc pro tunc. The purpose of the provisions necessitating leave is to facilitate the orderly and efficient administration of deceased and trust estates; the special factors which influenced the Full Court in Fitzpatrick v Jackson [1989] 2 Qd R 542 are absent in a case such as this, which is closely analogous to the cases which permit an order nunc pro tunc when leave is required to proceed against bankrupts or corporations in liquidation or official management: see, for example, Murray v United Pacific Transport Pty Ltd [1960] 1 QWN 20; Re Testro Bros Consolidated Ltd [1965] VR 18; Re Sydney Formworks Pty Ltd (In Liq) (1965) 82 WN (Pt1) (NSW) 558.

The Court has a discretion to grant or refuse leave: Re Neville; ex p The Official Receiver (1898) 19 NSWR 22 (Bankruptcy and Probate Cases). Although a narrower view has sometimes been adopted, as in Yeatman v Yeatman [1877] 7 Ch D 210 and Meldrum and Scorer (1887) 56 LT 471, and seems to have been contemplated in Ramage v Waclaw (1988) 12 NSWLR 84, there is an extensive body of authority which favours the grant of leave to sue to interested beneficiaries if an executor fails to do so, joining the executor as a defendant: see Luke vSouth Kensington Hotel Co [1879] 11 Ch D 121; Gandy v Gandy [1885] 30 Ch D 57; Howden v Yorkshire Miners' Association [1904-1] All ER Rep 602; In re Jordan; Hayward v Hamilton [1904] 1 Ch 260; Franklin v Franklin (1915) WN 342; Australian Workers' Union v Bowen (1946) 72 CLR 575, 586; Re Atkinson [1971] VR 612; Lake v Quinton (1973) 1 NSWLR 111; 116; Hayim v Citibank [1987] AC 731, 748; see also Connolly v Macartney (1908) 7 CLR 48 and Parker-Tweedale v Dunbar Bank plc [No 1] [1990] 2 All ER 577, 583.

36 Bridgewater was relevantly different from the present circumstance in that a grant of probate had been made at the time the proceedings were commenced and the executor was named as a defendant in the proceedings. The powers there exercised under s 49(2) and O 3 r 9 may arguably be predicated upon the existence of such a grant and are not substantially similar to those under the rules considered in cases such as Sundin and Scallan in New South Wales.

37 The standing issue does not appear to have been argued when the case came before the High Court (Bridgewater v Leahy (1998) 194 CLR 457), though it was mentioned briefly in both the majority and the dissenting judgments. Gleeson CJ and Callinan J noted that a beneficiary under a will has no personal right upon which the beneficiary can sue to impugn transactions of the deceased testator on the ground that they were procured by undue influence, stating (at 467 [27]):

The standing of the appellants to bring these proceedings depends upon s 49 of the Act. This is an action which, so far as is presently relevant, is brought to vindicate an equity of the late Bill York. Prima facie, it is the executor of his will (Kevin Leahy) who would have had standing to bring the proceedings. Section 49(2) permits another person, or other persons, to bring actions in the exercise of the powers of a personal representative, with the consent of the court. It was held in the courts below that, if the appellants otherwise succeeded, this would be a proper case for such consent. However, the fact that it is the appellants who have sued should not be permitted to obscure the position that what is at issue is an equity claimed on behalf of the late Bill York and, because of his death, his estate. It is not a personal equity of any of the appellants which is involved.

38 Many of the cases dealing with questions of nullity have relied upon the judgment of the Court of Appeal of England in Ingall v Moran [1944] 1 KB 160 (often with reference as well to one or more of Chetty v Chetty [1916] 1 AC 603; Hilton v Sutton Steam Laundry [1946] 1 KB 65; and Finnegan v Cementation Co Ltd [1953] 1 QB 688).

39 In Ingall, the plaintiff had issued a writ commencing proceedings in September of 1942 purportedly as administrator of his deceased son’s estate. However, the plaintiff did not take out letters of administration until November of that year. It was said that proceedings instituted by an applicant who at the time had no standing to institute those proceedings were an incurable nullity. Scott LJ at (164-165) stated:

The cause of action arose, and was vested in the deceased lad, at the moment when he was injured, and the measure of his damages included fair compensation for such loss of expectation of life as was caused to him by the defendant's tort. That chose in action was his. To it the common law maxim "Actio personalis moritur cum persona" would have applied on his death but for the Act of 1934 which caused it to survive. If he had left a will, it would at the moment of his death automatically have vested in his executor. As he died intestate, it vested in the President of the Probate, Divorce and Admiralty Division, and remained in him until letters of administration were issued. Then - and not before - it would automatically pass from the President to the administrator. As the writ was issued on September 17, 1942, and there was no grant till November, it follows, necessarily, that at the time of writ issued the plaintiff had no shadow of title to his son's surviving chose in action, in respect of which he purported to issue a writ, falsely (although no doubt quite innocently) alleging that he issued it as administrator. It purported to launch a representative action under Or. III, r. 4 - an action in which he confessed, first, that he was not suing in his own right, and, secondly, that he had no right in that action to prosecute any claim except in his representative capacity. The defendant could have demanded production of the non-existent letters of administration, and on the plaintiff's failure to produce them the action would, on the defendant's application, automatically have been struck out. Such an action was, in my opinion, incapable of conversion by amendment into a valid action - just as much so as if he had issued a personal writ claiming to be lawfully possessed of the estate of the deceased and had subsequently asked leave to amend by substituting a representative claim. It is true that when he got his title by the grant of administration he prima facie became entitled to sue, and could then have issued a new writ, but that was all. An application by him to treat the original writ of September 17 as retrospectively valid from that date would have been refused by the court, not only because it might prejudice existing rights of defence, but because it would not be permissible under the Rules of the Supreme Court or the Judicature Acts. The old writ was, in truth, incurably a nullity. It was born dead and could not be revived. If that conclusion is right it follows equally that the statement of claim was not delivered in any action recognized by the Rules of the Supreme Court, and all subsequent proceedings in the supposed action, including the judgment of the learned county court judge, were likewise nugatory, for, if the action and the pleadings were bad, there was no valid action before the learned judge to try and it is our duty to say so.

40 To an extent, it seems that it is the inability of a plaintiff to rely upon causes of action arising after the commencement of proceedings which underlies a number of the cases in this area. In Minister of State for the Interior v R T Co Pty Limited (1962) 107 CLR 1, Taylor J (sitting as a single judge in the High Court) said (at 7):

To my mind principle and authority admit of only one answer to the problem; it is incumbent upon the plaintiff to establish the existence of his cause of action as at the date of his writ and the failure or success of his action will not depend upon whether the trial takes place promptly or happens to be delayed until after he has entered into possession. It seems to me that the problem is analogous to that which has arisen in cases where a plaintiff has, before actual grant of administration, commenced proceedings as an administrator. Notwithstanding that upon grant the administrator's title relates back to the death of the deceased whom he represents it has been consistently held that this element of retroactivity is incapable of sustaining a writ issued before grant ( Chetty v. Chetty [1916] 1 A.C. 603, at p. 608; Ingall v. Moran [1944] 1 K.B. 160; Hilton v. Sutton Steam Laundry [1946] 1 K.B. 65; and Finnegan v. Cementation Co. Ltd. [1953] 1 Q.B. 688).

41 In that regard, there may be some doubt as to whether the principles espoused in Ingall (and the other cases cited by Taylor J) continue to apply, in circumstances where the rules and legislation governing civil procedure now allow for amendment of pleadings so as to add causes of action arising after the commencement of proceedings.

42 That said, in Sundin, Yeldham J considered that neither the power to cure irregularities then found in s 81 of the Supreme Court Act nor the amendment powers then found in Pt 20 of the Supreme Court Rules 1970 could salvage a statement of claim filed in the name of the deceased fifty minutes after the deceased’s death and/or an amended summons filed in the name of the executrix of the deceased’s estate, both of which were filed prior to the grant of probate to the executrix.

43 Having earlier referred to the finding in Ingall v Moran that the proceedings were “incurably a nullity”, Yeldham J said the following in relation to s 81 of the Supreme Court Act 1970:

It is clear, in my opinion, that the Supreme Court Act, s 81, cannot be invoked by the plaintiff. It relates only to the situation where “in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules …”. That, obviously, has no operation in the context of the present case where an amended summons was filed on 2 August 1988 naming as plaintiff the person who was said to be executrix of the estate of her late husband, but to whom no grant of probate had been made.

44 Yeldham J noted (at 474) that an argument put in reliance on the power of amendment contained in Pt 20 of the Supreme Court Rules failed by reason of the fact that no application had been made under Pt 20 r 1. However, his Honour continued on to say (at 475):

But there are more fundamental reasons why, in my view, the Master fell into error in saying that if the proceedings were regularly on foot “I would invoke Part 20 of the Rules”. That reason is that, because the amended statement of claim and the summons were filed on 2 August 1988, at a time when Mrs Marshall had not obtained a grant of probate, the action, including the amended summons, was a nullity and could not be saved by any powers of amendment to be found in Pt 20, r 4, or elsewhere. Examples of proceedings which, by reason of some fundamental defect, were said to be a nullity are contained in the cases collected in the judgment of the Victorian Full Court in Hubbard Association of Scientologists International v Anderson (No 2) [1972] VR 577 at 579. In MacFoy v United Africa Co Ltd [1962] AC 152 at 160, Lord Denning, delivering the advice of his Judicial Committee of the Privy Council, reminded us that the distinction between a nullity and a mere irregularity is the same as that between actions which are void and those which are voidable. In the former case it is in law a nullity and is not only bad but incurably bad and is automatically null and void without more ado: see also Pontin v Wood [1962] 1 QB 594. The natural tendency today is to treat failures to comply with matters of procedure as irregularities rather than nullities, and this is reflected, for example, in the amendments to O 2, r 1 of the English rules and in a number of decisions of our own courts. However, in the present case, for reasons which I have given, the issue of a statement of claim in the name of the plaintiff as executrix, at a time before probate had been granted, renders the proceedings a nullity and they were not validated by the subsequent grant.

45 Yeldham J additionally noted that, insofar as the Master had relied upon Pt 8, r 16 (the precursor to r 7.10), an order could not be made under the rule in circumstances where there were no valid proceedings on foot:

The Master appears to have taken the view (although it is not clear from his judgment) that the order which he made on 2 August 1988 was validly made pursuant to Pt 8, r 16(1)(b). This, however, assumes that the proceedings, up until that time, remained in existence and were valid, an assumption which is erroneous: Re Pritchard dec'd [1963] Ch 502 at 517. Any such order can only be made “on the application of any party”: see Sovereignton Pty Ltd v Public Transport Commission of New South Wales [1980] 1 NSWLR 243 at 258. In addition the rule is based upon the assumption that there is no personal representative of the deceased: see generally Government Insurance Office v Johnson [1981] 2 NSWLR 617. Furthermore, no order under that rule was in fact made by the Master, and if I were to make it now (assuming the proceedings otherwise to be valid and the rule therefore to be of some application) it would be too late, because the period of twelve months from the date upon which material facts of a decisive character relating to the cause of action came within the means of knowledge of the deceased and the plaintiff, for which the Limitation Act, s 59, provides, expired in August 1988. Hence Pt 8, r 16, cannot be relied upon.

46 In Darrington v Caldbeck (1990) 20 NSWLR 212, Young J (as his Honour then was), found that the proceedings then before him were no different from those in Sundin and stated (at 219) that he followed the decision of Yeldham J, “not only because of principles of comity, but because, with respect, it appears undoubtedly correct.”

47 In Gertsch v Roberts (1993) 35 NSWLR 631, Powell J (as his Honour then was) considered a case in which proceedings challenging probate had been commenced by a plaintiff, who had, at the time of commencement, lacked a relevant interest in the estate giving him standing, but who had subsequently received a grant of administration ad litem. Powell J, having cited Ingall v Moran (though refraining from expressing a view as to whether Yeldham J and Young J were correct in finding that the doctrine of relation back did not allow any distinction to be drawn between administrators and executors given s 61 of what is now the Probate and Administration Act) endorsed (at 635) both Sundin and Darrington for the proposition that the amendment and representation provisions could be of no assistance where the proceedings were incompetent from their outset:

If, therefore, these proceedings are to be regarded as having been, at the time of their commencement, incompetent, then, as it seems to me, there is no room for the operation of the Supreme Court Rules 1970, Pt 8, r 8, and r 9 (addition or removal of parties), Pt 20, r 4 (amendment because of mistake as to parties) Pt 8, r 13, and r 16 (representative orders) since the application of those various provisions, in any particular case, appears to be predicated upon the existence of proceedings were validly commenced: see, eg, Marshall v D G Sundin and Co Pty Ltd ; Darrington v Caldbeck .

48 In Pekel v Humich (unreported, Supreme Court of Western Australia, 3 December 1998), Sanderson M discussed Ingall, Minister of State for the Interior, Gertsch and a number of the other relevant authorities. However, his Honour noted that he was not bound by any of those authorities and declined to follow them, holding that the “relation back” effected by s 8 of the Administration Act 1903 (WA) did operate to validate what would otherwise have been invalid proceedings.

49 Sanderson M went on to consider whether, if he had followed Ingall v Moran, O 8, r 15 of the Western Australia Supreme Court Rules (the equivalent of r 7.10) could have been used to validate the proceedings. His Honour concluded that, while the ambit of the rule was not easy to understand:

For my part, I have some difficulty in accepting that any defects in these proceedings can be cured by resort to O18 r15 or O2 r1. If the principles of Ingall v Moran are applied, then there were no proceedings validly on foot and that cannot be cured by O2 (at least in its present form) or any other orders of the court. In this regard, I would rely on the decision of Parker J [i]n About Holdings Pty Ltd v Bellbird Enterprises Pty Ltd (1997) 17 WAR 309 at 313.

50 In Byers v Overton Investments Pty Limited (2000) 106 FCR 268, Emmett J considered whether proceedings commenced by an executor in New South Wales prior to a grant of probate were a nullity. His Honour discussed the position at common law, the development of the relevant legislation and the applicable legislation in some depth. Emmett J expressed some doubts (especially by reference to what had been said by Gibbs J in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 at 77-78) that the deemed vesting of a deceased’s personal estate in the NSW Trustee pending a grant of probate effected by s 61 of what is now the Probate and Administration Act had so significantly altered the common law position as had been held in Sundin and Darrington. His Honour noted that one of the precursors to s 61 (s 23 of 56 Vic No 30 (Probate Act of 1890 Amendment Act) 1893) seemed to be introduced under a misconception that the Probate Act of 1890 left unclear in whom a testate personal estate vested upon decease. His Honour considered it “curious that the devolution of testate personal estate should have been altered in such a haphazard fashion”, but ultimately concluded that:

Since the construction of ss 44 and 61 accepted by Yeldham J and Young J is clearly open, I am not prepared to conclude that their views of the provisions are clearly wrong. Indeed, while I have some reservation, I am disposed to conclude, for the reasons outlined above, that the conclusion is correct.

51 Accordingly, his Honour upheld the contention that the proceedings were a nullity and should be dismissed since, as at the dates on which the proceedings were commenced and the relevant proceedings filed, no cause of action was vested in the plaintiff.

52 On appeal (Byers v Overton Investments Pty Limited (2001) 109 FCR 554), Branson, North and Stone JJ broadly endorsed and adopted the reasoning of Emmett J, reaching the following conclusions:

In our opinion [the plaintiff] had no title to the relevant chose in action until grant of probate. It therefore follows that at the time this proceeding was commenced and at the time the application was amended she had no standing to commence proceedings such as this and the proceedings were therefore a nullity….
When [the plaintiff] commenced this proceeding (and when the application was amended) she had not been granted probate. The effect of s 61 of the WPA Act is that she did not at that time have title to the relevant property, namely the chose in action that the estate now seeks to pursue against the respondents. Being without title to the chose in action, she was not competent to commence proceedings to pursue that right. For reasons given above, the statutory relation back under s 44(1) does not cure that defect. The weight of authority and reason leads to the conclusion that this proceeding was incompetently commenced and therefore it was and remains a nullity.

53 However, in Noble v State of Victoria [2000] 2 Qd R 154, where two descendents of two aboriginal trackers, who were involved in the capture of the Kelly gang at Glenrowan, had brought an action upon a contractual indebtedness allegedly owed to their ancestors and grant of administration had been obtained by the plaintiffs, the plaintiffs successfully appealed from an order striking out their claim. McPherson JA, with whom McMurdo P largely agreed, held that there is (or may be) an exception to the principle set out in the judgment of Taylor J in Minister of State for the Interior, in cases in which beneficiaries commenced proceedings prior to a grant of representation which they later obtained. (Pincus JA dissented and found that there was weighty authority to the contrary and that the exception only applied when brought by beneficiaries, to protect estate assets and who had obtained a grant by the time the point regarding standing was taken.) In Thomas v National Australia Bank Limited [2000] 2 Qd R 448 at 458 [32], Pincus JA noted that the decision in Noble may throw doubt on Ingall v Moran.

54 In Stone v ACE-IRM Insurance Broking Pty Limited [2004] 1 Qd R 173, the Court of Appeal in Queensland again had cause to consider the issue of nullity. Before the court was an appeal from a decision striking out proceedings as a nullity in circumstances where those proceedings had been commenced by a discharged bankrupt to enforce a cause of action which remained vested in her trustee in bankruptcy. The Court of Appeal noted that in Cockerill v Westpac Banking Corporation (unreported, FCA, 9 March 1992), Drummond J in the Federal Court of Australia had struck out proceedings commenced by an undischarged bankrupt by reference, amongst others, to Ingall v Moran, in a passage cited with approval by Ambrose J in Francis v National Mutual Life Association of Australasia Limited [1999] 2 Qd R 355 at 356-357. The Court of Appeal nevertheless upheld the appeal and set aside the order striking out the proceedings, holding that a defective proceeding could not be described as a nullity if the court had power to cure the defect.

55 Prior to Stone, the weight of authority would seem to have supported the conclusion (following Ingall) that if proceedings were commenced by a party without standing (unlike the position in the present case where a claim has validly been commenced in relation to the probate part of the proceedings), the court’s power to amend irregularities or defective proceedings could not “cure” the proceedings, which remained a nullity.

56 Consistent with that line of authority, in Victoria in Chalker v Barwon Coast Committee [2005] VSCA 101, Eames JA, with whom Vincent and Chernov JJA agreed, held that proceedings commenced by strangers to a trust were incompetent, notwithstanding that they may subsequently have been appointed as trustees, citing Gertsch, Minister for the Interior, and Byers in this regard and distinguishing Noble.

57 Subsequent to the decision in Ingall v Moran, the English Court of Appeal has, however, moved away from the proposition that proceedings commenced by a plaintiff who has no title to sue are “incurably bad”. A number of the relevant decisions are recorded in the judgment of Mance LJ in Maridive & Oil Services (SAE) v CNA Insurance Company (Europe) Limited [2002] EWCA Civ 369 (at [20]-[23]). Similarly, in Smith v Henniker-Major & Co [2002] EWCA Civ 762 the Court of Appeal dealt with a case in which the primary judge had found that, as at the commencement of the proceedings, the chose in action sued upon was not vested in the plaintiff, Mr Smith. The plaintiff had sought leave to amend to plead an assignment of the chose subsequent to the commencement of proceedings. On appeal, Robert Walker LJ stated (at [92]-[93]):

There were two main arguments on which leading counsel previously instructed for the solicitors had relied before the judge, and on which Mr Symons relied in this court. The first argument was that at the time of issue of the claim form Mr Smith had no cause of action at all (or if different, no title to sue at all) and that the claim form was therefore a nullity (or of no effect) and could not be cured by amendment. The judge rejected that argument.

In my view the judge was right to do so. Mr Symons relied on the decision of this court in Ingall v Moran [1944] KB 160. But that decision was on a different point (change of capacity); was described (while still extant) as a blot on English jurisprudence; and has since been overturned by section 35(7) of the Limitation Act 1980 and CPR 17.4(4). So far as it embodied any larger principle it has been overtaken by the modern approach as described by Evans LJ in Hendry v Chartsearch Ltd [1998] CLC 1,382, para 23. In that case this court disapproved the more rigid approach adopted in Eshelby v Federated European Bank Ltd [1932] 1 KB 254. It is correct, as Mr Symons pointed out, that there was no limitation point in Hendry v Chartsearch Ltd , but that goes to his other main argument.

58 The effect of rule 17.4(4) of the Civil Procedure Rules of England and Wales, which is quite similar to Part 20, r 4 of the old Supreme Court Rules and s 65 of the Civil Procedure Act, had been considered by the Court of Appeal in Haq v Singh [2001] EWCA Civ 957. In that case, a discharged bankrupt had sued upon a chose which, as at the commencement of the proceedings, remained vested in her trustee in bankruptcy. After the commencement of the proceedings, the trustee assigned the chose to the discharged bankrupt. The trial judge granted leave to the discharged bankrupt to amend under rule 17.4(4) to plead the assignment, from which decision the appeal was brought.

59 Pill and Arden LJJ upheld the appeal on the grounds that the amendment did not effect a change in capacity, but considered that rule 17.4(4) had overturned the effect of Ingall v Moran.

60 The reasoning in Stone is consistent with these English decisions. It is worth noting in some detail what was said by McMurdo J (at 180 [21]-[22]):

It seems surprising that these days some proceedings could still be described as a nullity. There was a time when courts were more often called upon to decide whether some defect in the commencement or conduct of proceedings was so serious as to render them a nullity, or instead it was to be regarded as an irregularity, capable of remedy. For example, in MacFoy v United Africa Co Ltd [1962] AC 152 the Privy Council had to decide whether a statement of claim, delivered during a court vacation and therefore inconsistently with the relevant rules of court, was only voidable as an irregularity or instead void as a nullity. The relevant rules, relevantly identical with the then English rules, had provided that non-compliance with them should not render any proceedings void unless the court so directed. The judgment was delivered by Lord Denning, who, after explaining that the discretion under that rule had been held to apply to proceedings which were voidable, but not to those which were a nullity, remarked that "no court has ever attempted to lay down a decisive test for distinguishing between the two". There had developed a considerable body of cases in which defective proceedings had been put into one category or the other: see, eg, those discussed in Craig v Kanssen [1943] 1 KB 26. Many judgments had admitted the difficulty in distinguishing between an irregularity and a nullity. In In re Pritchard [1963] 1 Ch 502, Lord Denning MR strongly protested the continued use of this distinction, saying at pp 516-517:

We were referred to many cases on nullity and irregularity. They are most confusing because of the loose way in which the word 'nullity' is used: and the sooner it is put in its proper place the better. ...
(At p 517) The only true cases of nullity that I have found are when a sole plaintiff or a sole defendant is dead ... or non-existent ... and I would like to see the word 'nullity' confined to those cases in future.


His was a dissenting judgment, but he was able to subsequently claim that the outcome in that case brought about a change in the rules in England. The new rule provided, in effect, that where anything had been done or left undone contrary to the requirements of the rules, the failure to comply with the rules should be treated as an irregularity and should not nullify the proceedings or any step taken in them. An identical change was made to the Queensland Supreme Court Rules in 1965. The same provision is now found in r 371.

Yet it is said that some proceedings are still nullities, because their defect is due to something other than non-compliance with the rules of court: there are still proceedings which are "not only bad, but incurably bad" to use Lord Denning's description in MacFoy . The flaw in the present proceedings, when commenced, did not come from any breach of the rules, but from the plaintiff's mistaken claim to ownership of the causes of action. Many suits are wrongly commenced and prosecuted, including those where the plaintiff fails to establish an entitlement to the subject matter of the proceedings. Yet, it would seem surprising if, for example, a plaintiff who sued for recovery of property or for damage to it, but who ultimately is held to lack the necessary interest, could be said to have commenced and prosecuted a nullity. It is necessary then to examine the authorities cited in Cockerill and Francis for the proposition that in this particular context, which is where a bankrupt or former bankrupt sues upon a cause which vested in the trustee, the proceedings are from the outset an incurable nullity.

61 McMurdo J then said (at 183 [26]), having considered a number of cases in relation to the setting aside of decisions of a superior court even if in excess of jurisdiction, that:

It is then difficult to regard proceedings as a nullity in the sense that they are void whilst recognising that they can be the subject of a judgment which is valid unless and until set aside. To the extent that the expression is useful, it can only refer to a proceeding which is defective in a way which the court with its various powers, including those conferred by its particular rules of procedure, cannot cure. If there is an apparent remedial power under the procedural rules, the defect is curable and the proceeding should not be described as a nullity. It is the extent of the remedial power which defines what can be remedied, rather than the remedial powers being qualified by a characterisation of something as a nullity, according to what was said in other contexts and under different procedural rules. In the course of argument, Mr Bain QC, who led Mr Pyle for the respondent, submitted that Wigan v Edwards was itself an example of a proceeding which would be a nullity, but for the operation of r 375(2). That is to demonstrate that the categories of case fitting the description are affected by the content of the procedural rules. So, where the rules of court permit a defectively endorsed writ to be cured by an appropriate statement of claim, the writ is not a nullity, and it is effective as the commencement of proceedings for the purposes of the operation of a limitation period: Hill v Luton Corporation [1951] 2 KB 387; Pontin v Wood [1962] 1 QB 594.

62 His Honour had reference to the rules of court which permitted the court in its discretion to substitute or add plaintiffs (with the plaintiff’s consent), his Honour noting that the rule specifically permitted the addition or substitution of a plaintiff after the expiry of the limitation period, at least in special circumstances.

63 The conclusion in Stone was that the proceedings in question could be cured by reference to the court’s power of amendment. Stone has been considered in a number of subsequent cases in Queensland but not in any great depth.

64 In Phipps v Australian Leisure and Hospitality Group Limited [2007] 2 Qd R 555, McMurdo J said the following:

Alternatively, if any of these provisions, and in particular s. 250, do extinguish the common law cause of action and substitute a statutory right of action if and when their requirements are met, it would not follow that these proceedings were a nullity. Many proceedings are brought without the foundation of a cause of action against the defendant, or at least a cause of action to which the plaintiff is entitled. But they are not nullities. Proceedings are not a nullity simply because, for example, the plaintiff fails to establish an entitlement to the subject matter of the proceedings. Moreover, in Queensland, it is not necessary that the plaintiff’s cause of action should have accrued at the commencement of the proceedings; a plaintiff may obtain judgment upon a cause of action arising subsequently. Accordingly, it does not follow that proceedings are a nullity if the plaintiff has no right of action at the commencement of the proceedings. In particular if s. 250 does go to the right of action itself, a plaintiff who becomes entitled to seek damages in terms of s. 250 after commencing proceedings could, by amendment, pursue that right of action within those proceedings (subject to the matters discussed below).

65 In Willoughby v Clayton Utz [2007] WASCA 5, Wheeler JA, with whom Steytler P and Pullin JA agreed, distinguished Stone on the ground that the relevant amendment powers in Western Australia were less extensive but her Honour did not express any view as to the correctness of Stone.

66 As noted by Hayne J, when the matter came before his Honour on a special leave application (Willoughby v Clayton Utz [2007] HCATrans 305), the relevant rules in Western Australia had not abrogated the rule in Weldon v Neal (1887) 19 QBD 394 according to which an amendment will not be allowed if to do so would prejudice the rights of the opposing party as at the date of the amendment and the decision in Willoughby can be seen as an application of that rule. That said, the decision in Ingall goes beyond an application of Weldon v Neal, a point illustrated by the phrase: “not only because it might prejudice existing rights of defence”. Similarly, the decision in Sundin was made well after McGee v Yeomans [1977] 1 NSWLR 273 (in which the Court of Appeal held that Pt 20 had displaced the rule in Weldon v Neal – see Greater Lithgow City Council v Wolfenden [2007] NSWCA 180 at [13]-[17]), a judgment to which Yeldham J implicitly referred (as the editorial note in the report makes clear) when he mentioned the cases “collected in Ritchie's Supreme Court Procedure (NSW) in the notes under Pt 20, and in particular those to r 4”.

67 It is difficult to see any relevant difference between the rules considered in Sundin and the rules considered in Stone. Hence it is difficult to reconcile these two decisions (unless, which seems unlikely, Sundin may be read as limited to the legal existence of the plaintiff rather than going generally to the question of standing).

68 Notwithstanding that Stone is a bankruptcy case, and not a case relating to a deceased estate, there seems to me no logical difference between that situation and the one in the present case. If proceedings are an incurable nullity where the plaintiff had no title to sue at the time of their commencement, notwithstanding that title to sue was subsequently acquired, then it must be so in both circumstances.

69 The decision in Stone therefore seems squarely at odds with the decision in Sundin, which has been followed in Darrington, Gertsch and Scallan. While Sundin was applied by the Full Federal Court in Byers, the argument in that case turned more on the question of relation back and not on the nature of nullity.

70 In Deveigne v Askar [2007] 69 NSWLR 327, the Court of Appeal in this Court considered the distinction between proceedings which were infected by irregularity and proceedings or applications which were a nullity. The Court of Appeal referred both to Stone (briefly) and Sundin (at more length) without apparent disapproval of either. McColl JA noted that the severe consequences which flowed from the conclusion that an originating process was a nullity had led to the introduction in England of Rules of Court which were adopted in New South Wales by s 81 of the Supreme Court Act 1970. Her Honour referred to the judgment of Priestley JA in Australian Coastal Shipping Commission v Curtis Cruising Pty Limited (1989) 17 NSWLR 734 at 752-752, where his Honour inferred that one of the objects of s 81 was to deal with the second class of nullity identified by Lord Upjohn in Re Pritchard (deceased), namely proceedings which have never started at all owing to some fundamental defect in issuing the proceedings. In Deveigne, McColl JA referred to the adoption in subsequent cases of a wide and generous approach to the irregularity provisions, noting that they are intended to deal with procedural irregularities not jurisdictional errors of a fundamental kind.

71 Though the judgments in Deveigne are not as unequivocal as seems to be suggested by the headnote to the reported decision, their Honours did appear to accept that proceedings commenced in the name of someone who does not exist are a nullity. It may be therefore, that, even if Stone were to be preferred, Sundin would still stand in support of that limited proposition, though not in support of the broader proposition that proceedings commenced by a party who, at the time of commencement, lacks title to sue, but who later acquires such title, are incurably bad. As noted above, many of the authorities relied upon in Sundin are no longer followed by the court in which they originated (the English Court of Appeal).

72 In those circumstances, and in particular where the relevant sections of the Civil Procedure Act of New South Wales and the Uniform Civil Procedure Rules of Queensland are not different in substance and where the reasoning in Stone does not seem to have been regarded in Deveigne as plainly wrong, had it been necessary I would have been inclined to follow the decision in Stone.

73 In any event, I consider that in the present case the defect is remediable because, at the time the proceedings were commenced, there was capacity in Mr Brooks to bring the probate claim and therefore the proceedings cannot be said to have been a nullity from their inception.

74 If, contrary to Stone, the proceedings had been wholly a nullity and, in accordance with Sundin, there was no power in the court under r 7.10 to address that situation, then I would have been minded (given the overriding requirement that the court focus on the just, quick and cheap resolution of disputes) to dismiss the undue influence proceedings (inasmuch as they ever existed) and to adjourn the Family Provision Act proceedings in order to enable Mr Brooks to make a new application for a grant of probate in solemn form and for an application to be made for the appointment of an administrator ad litem in order to commence fresh proceedings in relation to the inter vivos undue influence claim, which could have been heard together with the Family Provision Act proceedings (evidence in the Family Provision Act proceedings to date standing as evidence in those fresh proceedings). As noted above, if the current undue influence proceedings were simply to be dismissed as a nullity, this would leave the possibility of further proceedings in due course on the same subject matter. In circumstances where the evidence suggests that the value of the estate (assuming for the sake of argument that the family home ultimately does form part of the estate on one or other of the bases contended for by the plaintiffs) is only marginally greater than the legal costs incurred by the respective parties in the proceedings to date, and all the persons with an interest in the proceedings (other than Mrs McLeod) are already before the court, it seems to me that if there is a means by which the fundamental issues in dispute between the parties can be resolved in the current proceedings, this should be done.

· Power to appoint authorised representative

75 Turning then to the question whether (leaving aside the nullity issue) there is power under r 7.10 to appoint an authorised representative of the estate for the purpose of continuing the undue influence proceedings.

76 I note that r 7.10 provides:

(1) This rule applies to any proceedings in which it appears to the court:
(a) that a deceased person's estate has an interest in the proceedings, but is not represented in the proceedings, or
(b) that the executors or administrators of a deceased person's estate have an interest in the proceedings that is adverse to the interests of the estate.
(2) The court:
(a) may order that the proceedings continue in the absence of a representative of the deceased person's estate, or
(b) may appoint a representative of the deceased person's estate for the purposes of the proceedings, but only with the consent of the person to be appointed.
(3) Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person's estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.
(4) Before making an order under this rule, the court may order that notice of the application be given to such of the persons having an interest in the estate as it thinks fit.

77 The immediate predecessor to the present rule is found in Part 8 Rule 16 of the old Supreme Court Rules. The rule dates back to section 44 of the Chancery Procedure Act 1852 (15 & 16 Vic c 86). (While many of the older variants of the rule do not include an equivalent of r 7.10(1)(b), there is little or no relevant difference in the various iterations of r 7.10(1)(a).)

78 Although the present service of Ritchie’s Uniform Procedure NSW when addressing r 7.10 appears to contemplate that normally the appointment will be of an administrator ad litem:

An appointment will not be made under this rule without the consent of the proposed appointee, but, subject to this, the court may appoint any person it considers appropriate: Re Curtis & Betts [1887] WN 126; Pratt v London Transport Board [1937] WN 43; Lean v Alston [1947] KB 467; Re Hart; Smith v Clarke [1963] NSWR 627; (1962) 80 WN (NSW) 1120. Normally the person would be appointed administrator ad litem : Dean & Chapter of Ely v Gayford (1853) 51 ER 896; 16 Beav 561. [My emphasis],

on my reading of Dean & Chapter of Ely v Gayford , while that case supports the proposition that the person appointed under such a rule “ought, as nearly as possible, to be the same as would have been appointed administrator ad litem ” (at 896-897), it does not support the proposition that an appointee under the rule must necessarily (or would normally) be appointed as an administrator ad litem .

79 The distinction between the two roles is apparent in the introduction in Daniell’s Chancery Practice (4th ed, 1866): to the rule from which the present rule is derived:

Where a claim on property in dispute would vest in the personal representative of a deceased person, and there is no general personal representative of that person, an administration, limited to the object of the suit, was necessary to enable the Court to proceed to a decision on the claim; but now the Court is empowered, by the 44th section of the Act 15 & 16 Vic c 86, if it thinks fit, to appoint a person in such cases to represent the estate, or to proceed in the absence of any such representative.

80 Similarly, in Aliperti v Official Trustee [2000] NSWSC 315, Austin J discussed (at [6]) the origin of Pt 8 r 16 of the old Supreme Court Rules:

The English Court of Chancery had jurisdiction to appoint a person as administrator ad litem if the person was willing so to act: Dean & Chapter of Ely v Gayford (1853) 16 Beav 561, 51 ER 896. However, it appears that with the adoption of statutory provisions which authorised the Court to appoint a representative in equivalent circumstances (Chancery Procedure Act 1852, s44), the appointment of an administrator ad litem became rare and it became more usual to appoint a representative pursuant to the statutory provisions and rules of Court: see Butterworths Australian Legal Dictionary , entry for 'ad litem'. The English statutory provision became s24 of the Equity Act 1901 (NSW), and a comparable provision is now found in Pt8 R16 of the Supreme Court Rules .

81 The distinction between the two roles is perhaps most clearly expressed in the following passage of the judgment of Hutley JA in Government Insurance Office v Johnson [1981] 2 NSWLR 617 at 625:

In the course of argument in the court, it was suggested that the master's orders were equivalent to appointments of an administrator ad litem. It is not within the powers of a Master in Common Law to make such an order: Supreme Court Act, 1970, s 118. In any event, he did not do so. His Honour had all the powers of the probate judge and could, undoubtedly, have appointed an administrator ad litem, but he did not do it. If he had done it, the orders of the court would have had to be preceded by a formal grant, an administrator ad litem being, for limited purposes, as much an administrator as any other administrator. The only way in which this Court can know whether a grant has been made is by the formal production to it of that grant, which did not happen. Further, no grant could have been made because, except where specially authorized by statute, a corporation cannot be appointed as an administrator, though it has the power to designate by instrument under its seal one of its officers (a syndic) to take a grant on its behalf: In the Goods of Darke (1859) 1 Sw & Tr 516; 164 ER 839; Mortimer on Probate , 2nd ed, (1927) 205.

82 I note that some doubt has in the past been raised as to the appointment of a personal representative where the representative is to be a plaintiff. In Darrington, Young J said (at 220):

The rule cannot, or alternatively only in exceptional circumstances may, be used to appoint a representative as a plaintiff. In expansion of this ... point, it should be noted that the present rule merely carries forward the practice of the Court of Chancery prior to 1852 in which the Court would appoint a person to represent an estate where the absent person would not have to be active in the execution of the decree which the court was called upon to make. As to the history of this rule, see Lean v Alston [1947] KB 467 at 470, and as to the practice in Chancery, see Daniell's Chancery Practice , 7th ed (1901) at 179 and Fowler v Bayldon (1853) 9 Hare App II lxxviii; 68 ER 802.

83 While it certainly appears to be the case that it is rare that the rule has been used to appoint a personal representative to act as plaintiff, it is not clear to me that the rule cannot be used to appoint a representative as a plaintiff. The authorities cited in the extract above do not suggest that this must necessarily be the case.

84 There is nothing found in the language of the present rule (or its predecessors), which suggests that its application is so restricted. McLelland CJ in Eq in Re J Hart, deceased; Smith v Clarke [1963] NSWR 627, certainly seems to have contemplated that the appointment of a representative as a plaintiff was possible, when he set out (at 631) a potential formulation of an order under the rule:

“This Court doth order that the plaintiff ----- be appointed to represent the estate of the plaintiff ----- deceased for the purposes of this suit”.

85 The rule has been used to appoint a representative as plaintiff on at least three occasions. The Master of the Rolls appointed a personal representative as a plaintiff in Robertson v Kemble [1867] WN 305. In Wingrove v Thompson (1877) 11 Ch D 419, the defendant sought to have a representative appointed as plaintiff, so that the defendant could move to have the proceedings dismissed for want of prosecution. (From the report of that case, it appears that counsel for the defendant had been unable to find the earlier case in which a representative had been appointed as plaintiff.) Fry J said the following (at 420):

The difficulty seems to be that, though the legal personal representative when appointed may be liable for the costs of the action, it does not follow that he can be made to carry on the action; but I think the section enables me to make the order; I say nothing about the motion to dismiss for want of prosecution, which may be made hereafter by a separate application.

86 More recently, Austin J employed the rule to appoint a plaintiff in Aliperti v Official Trustee [2000] NSWSC 315 (though in that case the motion was not opposed, and it does not appear that his Honour was taken to the decisions in Robertson, Wingrove or Darrington).

87 I am of the view that the rule can be used to appoint a representative as plaintiff (though by reference to reported cases historically it is rare that this has been done). I see no reason why the circumstances required for the appointment of a personal representative as plaintiff need be any more “exceptional” than those which would allow the appointment of a personal representative as defendant (other than insofar as the difficulty adverted to by Fry J might perhaps point to such a reason). However, in a case such as the present it seems to me that it is not necessary for the court to make any decision as to whether a personal representative, if appointed to act as plaintiff, should proceed with the cause of action presently on foot.

88 I would also note briefly that, insofar as some commentaries and cases state in broad terms that the rule does not apply where the estate would be more than a nominal party or where the representative would have active duties to perform in the proceedings, those statements tend not to distinguish between cases in which it is sought to proceed in the absence of a representative (eg Fowler v Bayldon (1853) 9 Hare App 78) and those in which it is sought that a representative be appointed. The materiality of the distinction in this regard was recognised by Wood VC in Long v Storie (1853) Kay App 12 at 13; 69 ER 317 at 318. Insofar as Gibson v Wills (1856) 21 Beav 620; 52 ER 999 might be read as authority for the proposition that a person will not be appointed where that person would represent the entirety of one side of the case, it cannot be reconciled with Robertson v Kemble, or Wingrove v Thompson and I note that Hutley JA did not seem to adopt such a reading of Gibson in GIO v Thompson.

89 The usual circumstance in which a personal representative would be appointed under the rule is where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate. However, the use of the rule is not limited to such circumstances. In Hele v Lord Bexley (1852) 15 Beav 340; 51 ER 569 a dispute in the Ecclesiastical Court as to the validity of a codicil to a deceased defendant’s will prevented probate from being granted. The death of the defendant prevented the proceedings from being concluded. The Master of the Rolls, Sir John Romilly, considered that a personal representative could be appointed in such a case.

90 Similarly, a representative of the estate of a deceased plaintiff was appointed in Robertson v Kemble where a dispute as to probate prevented a general grant from being made.

91 Again, in Long v Storie, where letters of administration had been granted to a creditor by the Ecclesiastical Court, but another creditor had entered a caveat before the proceedings had been perfected, Wood VC ordered that one of the creditors (or, if consent was not forthcoming from that creditor, the other creditor) be appointed personal representative for the purposes of the proceedings before him.

92 Accordingly, I am satisfied that r 7.10 does empower the appointment of a personal representative to act as a plaintiff in appropriate cases. Ultimately, the question whether a personal representative should be appointed is an exercise of discretion (Tarratt v Lloyd; Green v Green (1989) 17 NSWLR 343 at 350 per Gleeson CJ).

93 It was submitted by Mr Lawson that in the exercise of my discretion I should not appoint a personal representative to continue the proceedings, having regard to what was said to be the low prospects of success in relation to a claim of the kind raised by the probate claim. While the plaintiffs do not accept that there are not reasonable prospects of success in their claim (based, as it is, on a invocation of the “suspicious circumstances” principle and not, as Mr Lawson had suggested, a claim for undue influence in the sense used in probate cases), there remains the inter vivos undue influence claim as to which it could not be said that, if the facts alleged were made out, the claim would have no reasonable prospects of success.

94 As to who should be the authorised representative, as noted above Ms Gardner is the named executrix under the 2003 will and the 2004 codicil. However, there is a challenge to the validity of that will and codicil. If that challenge were to succeed then the named executor is the husband of one of the plaintiffs. Ms Gardner’s personal interest is in conflict with that of the estate insofar as her interest surely lies in resisting the claim to set aside the inter vivos transfer of the family home which would otherwise have formed the bulk if not all of the deceased’s estate. There is not a direct conflict of interest on the part of the named executor under the earlier will (Lysle Brooks), although indirectly he may benefit through his wife’s position as a beneficiary. However, his consent was unable to be obtained to act as personal representative when the issue was raised on 13 July 2009.

95 Mrs Bridger submitted that the proceedings had been conducted to date on the basis that Ms Gardner was essentially the contradictor to the claims made of the plaintiffs.

96 It seemed to me that this is clearly an appropriate matter in which I should exercise my discretion in order to appoint an authorised representative to act for the estate (since the plaintiffs have no standing to bring an inter vivos undue influence claim). As Mrs Hewitt is someone who has already been given a limited grant under s 41A to run the Family Provision Act proceedings, I think it is appropriate to appoint Mrs Hewitt as authorised representative of the estate. In this regard, at least in the undue influence claim, it would seem that there is no conflict of interest between Mrs Hewitt and the estate in seeking to have the inter vivos transaction set aside.

97 I note that the procedure by which a personal representative will be appointed was set out by McLelland CJ in Eq in Re J Hart, deceased; Smith v Clarke [1963] NSWR 627 at 631:

In cases where the appointment is made at the hearing of a suit and a party to the suit is willing to act there will be included in the decree or decretal order to the effect of the following, “This Court doth order that the plaintiff ----- be appointed to represent the estate of the plaintiff ----- deceased for the purposes of this suit”, of “This Court doth order that the defendant ----- be appointed to represent the estate of ----- deceased for the purposes of this suit”.

98 Accordingly, as I indicated in my ruling on 13 July 2009 the orders I propose to make would include an order that, subject to notification to Mrs McLeod as indicated earlier, Mrs Nita May Hewitt be appointed to represent the estate of the late Essie Lila Lipscombe deceased, for the purposes of conducting that part of proceedings 2046 of 2008 described by me in these reasons as the inter vivos undue influence claim.

99 I should note that, following debate between counsel on the issue as to the prospects of the probate claim, Mrs Bridger advised the court that, for the purposes of the hearing before me, the plaintiffs would not seek to press the probate claim. I indicated that in those circumstances I would be prepared to make an order in effect staying that part of the proceeding pending determination of the balance of the proceedings, as it appeared to me that it might well be that a determination of the issues in the inter vivos undue influence claim, together with the Family Provision Act claim, might obviate the need for any challenge to the 2003 will and 2004 codicil.

100 If the inter vivos undue influence claim succeeds and the family home falls back into the estate, then the issue in the Family Provision Act proceedings will be whether or not (under whichever is the operative will of the deceased) there has been adequate provision for the maintenance of the claimants. If the inter vivos undue influence claim does not succeed, then there remains the question whether an order should be made in the Family Provision Act proceedings designating the family home as part of the notional estate for the purposes of the estate and, if so, again the issue will be as to the adequacy of provision for the maintenance of the claimants. It is only if neither claim succeeds that the plaintiffs will seek to revive the ‘suspicious circumstances’ probate claim, as I understand it. (The doubt as to which will needs to be considered for the purposes of the Family Provision Act claims, in the absence of a prior determination of the ‘suspicious circumstances’ claim, is something I have raised briefly with Counsel. I understand that there will be further submissions in due course on that aspect of the matter.)

Orders

101 I confirm the rulings made on 13 July 2009 and make the orders (subject to confirmation as to the position of Mrs McLeod) that:

1. Proceedings 2693 of 2007 continue in the absence of a representative of the deceased’s estate.

2. In proceedings 2046 of 2008, Nita May Hewitt be appointed under rule 7.10 of the Uniform Civil Procedure Rules to represent the estate of the late Essie Lila Lipscombe.

3. In proceedings 2046 of 2008, the title of the proceedings be amended so that the first plaintiff is noted as “Nita May Hewitt appointed by order dated 24 July 2009 to represent the estate of the late Essie Lila Lipscombe deceased”.

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