Hill v Hill
[2012] WASC 294
HILL -v- HILL [2012] WASC 294
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 294 | |
| Case No: | CIV:2806/2010 | 25 JULY 2012 | |
| Coram: | MASTER SANDERSON | 21/08/12 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | GRAHAM ROBERT HILL KATHLEEN PATRICIA MARGARET PETHERICK JAMES HENRY CHARLES HILL in his capacity as Executor of the Estate of Eileen Veronica Hill (dec) ALAN WAYN HILL in his capacity as Executor of the Estate of Eileen Veronica Hill (Dec) JAMES HENRY CHARLES HILL ALAN WAYNE HILL LESLEY JUNE GREEN EILEEN VERONICA HILL KATHRYN DELORES KING |
Catchwords: | Appeal from registrar Account Consenting to account on the basis of wilful default when case not pleaded on that basis Turns on own facts |
Legislation: | Nil |
Case References: | Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
KATHLEEN PATRICIA MARGARET PETHERICK
Second Plaintiff
AND
JAMES HENRY CHARLES HILL in his capacity as Executor of the Estate of Eileen Veronica Hill (dec)
First Defendant
ALAN WAYN HILL in his capacity as Executor of the Estate of Eileen Veronica Hill (Dec)
Second Defendant
JAMES HENRY CHARLES HILL
Third Defendant
ALAN WAYNE HILL
Fourth Defendant
LESLEY JUNE GREEN
Fifth Defendant
EILEEN VERONICA HILL
Sixth Defendant
- KATHRYN DELORES KING
Seventh Defendant
Catchwords:
Appeal from registrar - Account - Consenting to account on the basis of wilful default when case not pleaded on that basis - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Category: B
(Page 3)
Representation:
Counsel:
First Plaintiff : Mr P R MacMillan
Second Plaintiff : Mr P R MacMillan
First Defendant : Mr J M Thomson
Second Defendant : Mr J M Thomson
Third Defendant : Mr J M Thomson
Fourth Defendant : Mr J M Thomson
Fifth Defendant : Mr J M Thomson
Sixth Defendant : Mr J M Thomson
Seventh Defendant : Mr J M Thomson
Solicitors:
First Plaintiff : Peel Legal
Second Plaintiff : Peel Legal
First Defendant : HFM Legal
Second Defendant : H F M Legal
Third Defendant : H F M Legal
Fourth Defendant : H F M Legal
Fifth Defendant : H F M Legal
Sixth Defendant : H F M Legal
Seventh Defendant : H F M Legal
Case(s) referred to in judgment(s):
Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457
(Page 4)
1 MASTER SANDERSON: This is an appeal from a decision of a registrar striking out certain paragraphs of an affidavit. In a rather oblique way it raises a question as to the scope of an inquiry when an account is ordered to be taken on the basis of wilful default.
2 The starting point in determining this appeal is the statement of claim. The plaintiffs are the son and daughter of Eileen Veronica Hill who died 1 December 2000 (the deceased). The deceased was survived by five children apart from the plaintiffs and these persons are named as the third to seventh defendants to the action. The deceased made a will executed 16 March 1998. By that will the first and second defendants were appointed as executors and trustees of the deceased's estate.
3 Under the terms of the will, the deceased bequeathed land described in the statement of claim as Lot 507 to her trustees on trust to sell the land with power at the absolute discretion of the trustees to postpone such sale. The first plaintiff claims he repeatedly requested the first and second defendants to sell Lot 507 but the defendants refused to do so. Further, the plaintiffs allege since the date of death of the deceased they have not received any benefit from the estate.
4 The statement of claim further alleges the first and second defendants had a conflict of interest. It is said they farmed Lot 507 and failed to account to the plaintiffs and other beneficiaries for any income received. The plaintiffs say they have called on the first and second defendants to provide an account on various occasions but none has been forthcoming.
5 The prayer for relief seeks to have the first and second defendants account to the plaintiffs for their administration of the trust created under the deceased's will. The plaintiffs also seek an order under the Trustees Act 1962 (WA) that the first and second defendants justify their decision not to sell Lot 507 and an order that Lot 507 be sold.
6 On 24 November 2011, the first and second defendants consented to an order they account to the plaintiffs for their management of the deceased's estate on the basis of wilful default. The fact the first and second defendants consented to judgment on this basis is startling. A party who wishes to have a trustee account on the basis of wilful default is obliged to plead at least one instance of wilful default. If this instance is either proved or admitted the court can at its discretion award to the plaintiff a roving inquiry as to what the defendant should have received: see Coulthard v Disco Mix Club Ltd [1999] 2 All ER 457 (Jules Sher QC) (481). If no allegation of wilful default is made in the statement
(Page 5)
- of claim it is difficult to see how judgment can be entered on that basis. Nonetheless that is what has happened here.
7 Subsequent to the making of the order, the first and second defendants were ordered to file an affidavit in which they accounted to the plaintiffs for their management of the estate. In my view such an order was inappropriate. The plaintiffs should first have put on evidence as to what they said would have been received by the first and defendants if the estate was properly managed. As I understand it, what is alleged by the plaintiffs against the first and second defendants is the first and second defendants did not let Lot 507 out for agistment as they should have done and therefore income which could have been received was not received. If that or some similar allegation is made against the first and second defendants, then the plaintiffs ought provide evidence as to what income could have been received. For instance, expert evidence from a local real estate agent as to what rental could have been achieved for Lot 507 if it was used for agistment should have been provided. It is difficult to see the logic in asking the first and second defendants to account on a wilful default basis when they have no clear idea of what the plaintiffs say they should have done with the estate.
8 When the defendants did file their affidavit they said effectively they had managed the estate properly and in accordance with certain oral agreements that had been entered into by the deceased with the defendants some years before the deceased's death. The plaintiffs applied to strike out the first and second defendants' affidavit on a number of different grounds. But for the purposes of this appeal one central issue emerged. The plaintiffs maintained as the first and second defendants had consented to judgment, they could not put a case which was to the effect they had properly managed the estate. On behalf of the plaintiffs it was submitted if the first and second defendants were to run such an argument it would be at odds with the consent judgment.
9 The difficulty with the matter as it presently stands is that it is not clear what the argument will be. To attempt at this point to rule on what arguments the first and second defendants can and cannot put would be to consider the issues in a vacuum. The proper course is to have each party put on its evidence and then consider in that context the significance of the consent judgment.
10 It really then is a question of how the matter ought proceed. In my view the best course is to strike out the affidavit of the first and second defendants in its entirety. The plaintiffs ought put on their evidence and
(Page 6)
- their statement of contentions. The first and second defendants ought then put on their evidence and their statement of contentions. It may be before the plaintiffs are in a position to put on their case they will require discovery from the first and second defendants. After all it is the first and second defendants who have been managing the estate and in particular Lot 507 and it may be to undertake their roving inquiry the plaintiffs need to know with some precision what the first and second defendants have actually done.
11 For these reasons I am of the view the proper course is to allow the appeal, set aside the orders of the learned registrar and to order the affidavit of the first and second defendants of 22 December 2011 to be struck out in its entirety. I would also order the costs of the application to the registrar and the costs of this appeal be reserved. I will hear the parties as to appropriate programming orders.
12 During the course of his submissions, counsel for the first and second defendants sought an order under O 45 r 12 of the Rules of the Supreme Court 1971 (WA) the taking of accounts presently proceeding before the registrar be transferred to a judge. In my view, the fact the registrar has been case managing the taking of accounts is sufficient to allow a request to be made under this order. There is no discretion to refuse such a request. Accordingly, the matter should henceforth receive the care and attention of a judge of this court.
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