IN THE ESTATE OF ROBERT IAN EDWIN PARTRIDGE (Decd)
[2022] WASC 367
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: IN THE ESTATE OF ROBERT IAN EDWIN PARTRIDGE (Decd) [2022] WASC 367
CORAM: TOTTLE J
HEARD: 19 OCTOBER 2022
DELIVERED : 31 OCTOBER 2022
FILE NO/S: PRO 1204 of 2009
BETWEEN: LOLA MAY LEVINGSTON
Applying Executor
AND
RHYS CURJEL PARTRIDGE
Objector
Catchwords:
Probate and administration - Referral under r 4(4) of the Non-contentious Probate Rules 1967 (WA) - Claim of wilful defaults - Further claims of distributions and expenses not accounted for by the executrix - Further claims not part of referral under r 4(4) of the Non-contentious Probate Rules 1967 (WA) - Where the objector seeks all claims to be determined on a summary basis - Whether the referral under r 4(4) of the Non-contentious Probate Rules 1967 (WA) and further claims conforms with the court's procedures - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 43(1)(b), s 45
Family Provision Act 1972 (WA), s 6(1)
Non-contentious Probate Rules 1967 (WA), r 4(4), r 37
Supreme Court Act 1935 (WA), s 24
Result:
Referral adjourned sine die
Category: B
Representation:
Counsel:
| Applying Executor | : | N Draper |
| Objector | : | G B A Visscher |
Solicitors:
| Applying Executor | : | Mendelawitz Morton Commercial Lawyers |
| Objector | : | FourLion Legal Pty Ltd |
Case(s) referred to in decision(s):
Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014) 48 WAR 1
Levingston v Levingston [2017] WASCA 91
Levingston v Lola May Levingston as Executrix of the Will of Robert Ian Edwin Partridge [2017] WASC 371
Levingston v Lola May Levingston as Executrix of the Will of the Late Robert Ian Edwin Partridge [No 2] [2016] WASC 133
Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146
Re Ellis; Ellis v Ellis [2015] WASC 77
The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358
TOTTLE J:
Introduction
These reasons concern issues that have arisen in the administration of the estate of the late Robert Ian Edwin Partridge (the deceased). The issues were the subject of argument at a special appointment on 19 October 2022. In exchanges with counsel, I explained the way in which the issues should be dealt and that I would publish reasons for the approach to be taken. These are those reasons.
The deceased died on 6 October 2008 having, by his will made on 29 December 1995, appointed Mrs Lola Levingston executrix and the trustee of the trust established under the terms of the will. The deceased left his entire estate to Mrs Levingston to hold on trust and 'to sell call in and convert into money' and transfer to his only son, Mr Rhys Curjel Partridge. The deceased and Mrs Levingston lived together as husband and wife for a number of years prior to his death.
Mr Partridge claims:
(a)Mrs Levingston was guilty of wilful defaults in her dealings with a Mercedes Benz motor vehicle (the Mercedes Benz) that formed part of the estate.
(b)Mrs Levingston has not accounted to the estate for expenses amounting to $262,213.08 disallowed on the passing of estate accounts.
(c)The distributions of the estate made by Mrs Levingston to Mr Partridge do not reflect the total value of the estate.
(d)By reason of Mrs Levingston's wilful default in respect of the Mercedes Benz and other delays by her in the administration of the estate she should pay interest in respect of the undistributed balance of the estate.
(e)Mrs Levingston has failed to deliver to Mr Partridge personal items, namely the deceased's watches, some silver cutlery and a quantity of pearls, all of which formed part of the estate.
Mr Partridge's claim in respect of the Mercedes Benz is the subject of a referral from a registrar of the court made under r 4(4) of the Non‑contentious Probate Rules 1967 (WA) (NCR) following the passing of estate accounts.
Mr Partridge contends that although the claims identified in [3(b) - (d)] were not the subject of the referral made under r 4(4) of the NCR they can be dealt with by the court on the basis that once a referral to a Judge has been made under r 4(4) the Judge becomes seized of all matters relating to the administration of the estate in the probate jurisdiction and has the full amplitude of powers conferred by the Supreme Court Act 1935 (WA), the Administration Act 1903 (WA) and the court's inherent jurisdiction. Mr Partridge's counsel pressed for all the claims to be determined, in effect on a summary basis, at the special appointment.
In support of his claims Mr Partridge relied on affidavits sworn by him for the purposes of objecting to items in the passing of accounts proceeding. Additionally, Mr Partridge relied on an affidavit sworn by him on 13 October 2022. The affidavit attached a report from a valuer expressing opinions as to the value of the Mercedes Benz in mid-June 2009. The report was dated 11 October 2022.
It is most unsatisfactory that the administration of the deceased's estate is not complete. It is apparent from the voluminous affidavit evidence that has been filed and from the submissions made at the special appointment that there is a substantial degree of animosity between Mr Partridge and Mrs Levingston. No doubt this animosity has created difficulty in resolving issues which, in other circumstances, might have been resolved without the need for recourse to the court.
Background
The estate comprised shares in listed entities, interests in family companies, interests in trusts, loans to related entities, real property, personal effects and the Mercedes Benz. In the statement of assets and liabilities that accompanied the application for probate Mrs Levingston recorded that the value of the property comprising the estate was $5,630,663.35. The real property was valued at $4,500,000 and the Mercedes Benz at $65,000. The liabilities were stated to be $20,998. Although the value of the estate was considerable there was nothing about its composition that would indicate that it would be difficult to administer.
The administration of the deceased's estate was delayed by proceedings commenced by Mrs Levingston in which, as is apparent from the account given below, she sought to advance her own interests.
The grant of probate itself was delayed. No application for probate was made until March 2009. By that application Mrs Levingston attempted to obtain probate on the basis that the deceased's testamentary intentions were contained in the deceased's will of 29 December 1995 and a codicil in the form of a letter dated 13 April 2005 written by the deceased to his solicitor and signed both by the deceased and Mrs Levingston. She contended the letter of 13 April 2005 altered the deceased's testamentary intentions in her favour.
In late October 2009 Mrs Levingston withdrew her application for probate in respect of the will and alleged codicil and applied for probate in respect of the will alone. Probate of the will was granted on 4 December 2009.
In 2010 Mrs Levingston commenced proceedings in which, amongst other matters, she alleged that the letter of 13 April 2005 constituted an agreement between the deceased and her to the effect that the deceased would leave his estate, alternatively his personal estate, to her. The trial of those proceedings was heard before me in late 2015 and judgment was delivered dismissing Mrs Levingston's claim on 29 April 2016.[1] Mrs Levingston appealed against the decision and the appeal was dismissed on 11 May 2017.[2]
[1] Levingston v Lola May Levingston as Executrix of the Will of the Late Robert Ian Edwin Partridge [No 2] [2016] WASC 133.
[2] Levingston v Levingston [2017] WASCA 91.
In 2010 Mrs Levingston made an application for provision out of the deceased's estate under s 6(1) of the Family Provision Act 1972 (WA) which was dismissed by Smith AJ (as her Honour then was) on 20 December 2017.[3]
[3] Levingston v Lola May Levingston as Executrix of the Will of Robert Ian Edwin Partridge [2017] WASC 371.
On 2 July 2018 a registrar of the court gave notice to Mrs Levingston that she was required to pass the accounts in relation to the deceased's estate. The process of passing accounts was protracted. The account comprised 180 items. Receipts amounted to $1,432,971.10 and expenses amounted to $399,896.16. Mr Partridge objected to many items and supported his objections with detailed affidavit evidence. Mrs Levingston responded with affidavit evidence of her own. Detailed written submissions were filed by both sides.
The hearing of the passing of accounts took place over four days in March 2022. On 13 April 2022 the registrar issued a certificate pursuant to r 37(10) of the NCR specifying the items in the account that were disallowed. Disallowed expenses amounted to $262,213.08. In the r 37(10) certificate the registrar recorded that Mrs Levingston was liable to account to the estate in the sum of the expenses disallowed, that is, in the sum of $262,213.
The account filed by Mrs Levingston included a receipt of $38,000 generated by the sale of the Mercedes Benz and expenses of $10,203.01 for licensing, insurance and running costs incurred in respect of it between April 2009 and March 2011 when it was used by Mrs Levingston. On the basis that the plaintiff alleged that Mrs Levingston's dealing with the Mercedes Benz involved a wilful default it was accepted by the parties that consideration of those items should be referred to a judge of the court under r 4(4) of the NCR.
On 8 April 2022 Mr Partridge's solicitors sent an email to the court recording the issues the parties had agreed be referred to a judge and the reasons for that referral. Relevantly, Mr Partridge's solicitors stated:
1. The issues to be referred are in relation to a 2006 Mercedes‑Benz 320 CDI which was part of the Estate of Robert Ian Partridge . The issues are in relation to the Executrix:
1.1. not having transferred, instead having driven and then sold the 2006 Mercedes-Benz in April 2011, in circumstances where the Deceased passed away on 6 October 2008. The Objector objects to the vehicle (not having been transferred to him) having been sold for $38,000; and
1.2. having incurred expenses in relation to the 2006 Mercedes-Benz between October 2008 and April 2011. The expenses to which objection have been taken are:
Date
Description
Amount
Amount of objection
2/04/2009
Department of Transport
-$569.90
-$275.50
15/04/2009
Mercedes Road Care
-$126.50
-$126.50
29/04/2009
Nexus
$1,479.05
-$740.00
18/06/2009
Diesel Motor Service
-$2,045.45
-$2,045.45
17/12/2009
Nexus Mercedes Insurance
-$1.576.09
-$1,576.09
12/03/2010
Welshpool Tyre Service
-$1,420.00
-$1,420.00
13/04/2010
Department of Transport
-$592.90
-$592.90
7/01/2011
Nexus Mercedes Insurance
-$1,794.52
-$1,794.52
24/03/2011
Department of Transport
-$598.60
-$598.60
2. The parties agreed that the claim in relation to sale of the Mercedes-Benz was a wilful default claim and consequently, could not be dealt with in the Passing of Accounts. The objections in relation to disbursements from the Estate in relation to the Mercedes-Benz is also referred because in order to determine whether these disbursements should be falsified it is necessary to determine when the Mercedes-Benz should have been sold and is related to the sale of the Mercedes-Benz.
Mr Partridge's claim in respect of the Mercedes Benz
The relief sought by Mr Partridge in respect of the Mercedes Benz is a declaration as follows:
1.The Court declares that the Executor is liable to account to the Estate for:
a.the value of the Mercedes-Benz as at June 2009, being $86,500; and
b.the expenses disallowed in relation to the Mercedes-Benz, being $9,169.56.
Mr Partridge's case in respect of the Mercedes Benz and the expenses associated with it may be summarised as follows:
(a)The Mercedes Benz was bought by the deceased in 2006 for a sum of approximately $100,000. It was fitted with a 'luxury pack', that is, it had leather interior, off road 'pro-engineering', folding side mirrors, rear retaining net, 'airmatic' suspension, command system satellite, 'RHS' memory seat, dark tinted gloss and infra-red reflecting glass. It was in good 'as new' condition at the date of the death.
(b)On 16 June 2009 the odometer reading was 54,426 kms.
(c)In June 2009 the value of the Mercedes Benz was $84,000.
(d)Mrs Levingston drove the Mercedes Benz between the date of the deceased's death and 21 April 2011 when she sold it to a dealer (Diesel Motors) for $38,000. She then purchased it back from Diesel Motors for the same amount. The odometer reading at the time of this sale and purchase was 83,036 kms.
(e)Probate should have been obtained in early 2009 and the Mercedes Benz should have been sold by mid-2009.
(f)Had the Mercedes Benz been sold in mid-2009 the majority of the expenses incurred in relation to it in the period between April 2009 and April 2011 would not have been incurred.
(g)By failing to sell the Mercedes Benz in mid-2009 Mrs Levingston committed a breach of trust by omission which caused loss to the estate and accordingly Mrs Levingston is liable to account to the estate in respect of the value of the Mercedes Benz in mid-2009 making allowance for the $38,000 received in 2011.
Mrs Levingston had contended in correspondence that between the deceased's death and April 2011 she used the Mercedes Benz in the performance of her duties as executrix. At the special appointment counsel for Mrs Levingston informed the court that Mrs Levingston accepted that the expenses of $9,169.56 (as opposed to the value of the Mercedes Benz) were no longer in issue and, in effect, those expenses should be disallowed. I infer from this that Mrs Levingston no longer contends that it was necessary for her to use the Mercedes Benz to enable her to discharge her duties as executrix.
My understanding is that the issues in respect of the Mercedes Benz are:
(a)whether by failing to sell the Mercedes Benz by mid-2009 Mrs Levingston was in wilful default of her obligations as executrix; and
(b)if so, what was the value of the Mercedes Benz in mid-2009.
Finally, I note counsel for Mrs Levingston indicated that Mrs Levingston wished to adduce evidence in response to the valuer's report dated 11 October 2022 on which Mr Partridge wished to rely.
Mr Partridge's claim in respect of the undistributed estate
The relief sought by Mr Partridge is as follows:
2.The Court finds that there is an amount of $388,949.28 due and owing by the Executor to the Objector upon the taking of accounts.
3.The Court orders that the Executor pay from the Estate to the Objector the amount of $388,949.28 within 7 days of the date of the making of these orders.
On 8 April 2022 Mr Partridge's solicitors sent a letter to Mrs Levingston's solicitors requesting an immediate distribution of estate funds. Mr Partridge's solicitors calculated that excluding the amount of the expenses disallowed on the passing of accounts there was approximately $102,000 which remained to be distributed. Mr Partridge's solicitors requested an immediate distribution of $100,000.[4]
[4] Affidavit of Rhys Curjel Partridge sworn 13 October 2022, Annexure 'RCP 189', 9.
On 5 May 2022 Mr Partridge's solicitors sent a further letter to Mrs Levingston's solicitors in which they calculated that the total value of the estate including the amount of the expenses Mrs Levingston was required to repay the estate was $337,311 and demanded the immediate distribution of $330,000.[5] In the absence of any reply to their letters of 8 April or 5 May 2022 Mr Partridge's solicitors sent a further letter to Mrs Levingston's solicitors on 23 August 2022 demanding a distribution of the funds held by her on behalf of the estate.[6]
[5] Affidavit of Rhys Curjel Partridge sworn 13 October 2022, Annexure 'RCP 191', 17 - 18.
[6] Affidavit of Rhys Curjel Partridge sworn 13 October 2022, Annexure 'RCP 192', 19 - 20.
On 24 August 2022 Mrs Levingston sent Mr Partridge two cheques to a total value of $44,131.72 said to be the 'final distribution' and a set of 'financial statements' comprising a balance sheet, an 'income statement' and 'notes' in respect of the estate prepared by a firm of accountants.[7]
[7] Affidavit of Rhys Curjel Partridge sworn 13 October 2022, Annexure 'RCP 193', 21 - 30.
On the materials available to me it is not apparent how the financial statements can be reconciled with the accounts which were passed by the registrar or, indeed why they were prepared. Further, the balance sheet makes no mention of Mrs Levingston's liability to repay the estate the expenses of $262,213.08 disallowed on the passing of the accounts.
The sum of $388,949.28 which Mr Partridge claims remains to be distributed is calculated as follows:
Surplus of receipts over expenses (excluding
receipts and expenses relating to the
Mercedes Benz): $995,074.94Distributions to 11/2021: ($919,876.58)
Items disallowed: $262,213.08
Distributions in 08/2022 ($44,131.72)
Mercedes Benz (value) $86,500
Mercedes Benz expenses (disallowed) $9,169.56
Undistributed amount $388,949.28
The issues relating to the quantum of the undistributed balance of the estate appear to be relatively straightforward. First, there is the amount that remained to be distributed at the time the accounts were passed. Presumably this amount can be determined by reference to bank statements. Secondly, there is the amount of the expenses the registrar found Mrs Levingston was liable to pay the estate in respect of disallowed expenses, $262,213.08. Thirdly, the undistributed amount of the estate will be increased by any amount for which Mrs Levingston is found to be liable in the event that she is found to have been guilty of a wilful default in respect of the Mercedes Benz.
On the materials available to me, there does not appear to be any reason why Mrs Levingston should not have accounted to the estate for the disallowed expenses of $262,213.08. Although I have not had the benefit of submissions from Mrs Levingston's counsel on the issue, presently I have difficulty in contemplating any basis upon which the failure to account for these expenses could be justified.
Mr Partridge's claim for interest
The relief claimed by Mr Partridge in respect of interest is expressed as follows:
4.The Executor is liable to account to the Estate for interest at 6 per cent per annum on:
a.$337,411.44 for the period between 13 April 2022 and 24 August 2022, being $7,376.83;
b.$293,357.58 from 25 August 2022 until payment;
c.$86,500 from 1 July 2009 to 20 April 2011, being $9,370.44;
d.$48,500 from 21 April 2011 until payment; and
e.on the amount disallowed in respect of each of expense items 24, 26, 27, 32, 47, 58, 60, 71 and 71 in the Form 4 for the Estate dated 28 November 2021 from the date of the item until payment. [the Mercedes Benz expense items]
It is apparent from the written submissions filed on Mr Partridge's behalf that the claim for interest is based on the contention that the delay in distributing the estate constituted a wilful default on the part of Mrs Levingston.
Mr Partridge's claim for silverware and other personal items
The relief sought by Mr Partridge is as follows:
5.Within 7 days the Executor distribute to the Objector, the Estate's:
a.6 full sets of solid silver cutlery;
b.wrist watches; and
c.loose pearls which would allow for 3 strands of pearls to be made.
It was not clear from the materials filed on Mr Partridge's behalf exactly what comprised the '6 full sets of solid silver cutlery'. At the special appointment counsel for Mr Partridge clarified that the silver cutlery comprised six entrée forks, six dinner forks, six teaspoons, six dessert spoons and six serving spoons (one of each of which is shown in a photograph attached to Mr Partridge's affidavit sworn on 25 January 2022).[8] In an affidavit sworn by her on 15 November 2018 Mrs Levingston deposed:[9]
The silver cutlery and carving knife and fork as given to me by [the deceased] in its original box is available for delivery.
[8] Affidavit of Rhys Curjel Partridge sworn 25 January 2022, Annexure 'RCP 174', 300 - 302.
[9] Affidavit of Lola May Levingston sworn 15 November 2018 [10(iii)(a)].
Read in context the words 'available for delivery' were intended to convey that the cutlery was available for delivery to Mr Partridge.
On the face of the affidavit evidence the principal issue in respect of the silver cutlery is whether the cutlery that Mrs Levingston deposed was ready for delivery is the cutlery sought by Mr Partridge.
Mr Partridge's evidence in relation to the watches was as follows:[10]
My father owned at least 2 watches, one that he wore everyday and another watch that had been owned by my grandfather.
I have not been provided with either of these, or any watches by the Executrix.
[10] Affidavit of Rhys Curjel Partridge sworn 13 October 2022 [22] - [23].
In her affidavit sworn on 15 November 2018 Mrs Levingston deposed:[11]
[T]he wrist watch (there were a number of wrist watches), assorted books and office items will be returned on the provision of sufficient details of those items to enable me to identify them as belonging to [the deceased]. Over the years [the deceased] and I collectively acquired various wrist watches, numerous books and office items at the home, usually making a joint purchase of those items or buying them for each other as gifts.
[11] Affidavit of Lola May Levingston sworn 15 November 2018 [10(ii)(a)].
Mrs Levingston's affidavit evidence in respect of both the cutlery and the watches suggested that there was no dispute over whether the wrist watches or silver formed part of the estate but some observations made by her counsel in the course of the special appointment suggest that there may be some dispute about the ownership of these items. Thus, at this stage, it is difficult to identify the issues in relation to these items with any great precision.
In an affidavit sworn by him on 13 October 2022 Mr Partridge gave the following account of the facts relating to the pearls:[12]
My Father had a box of loose pearls, which had not been drilled with holes and which would allow for 3 strands of pearls to be made (Pearls).
Within a few days of my Father's passing, Mrs Levingston came to 56 Leisure Drive, Australind, went to the draw[er] in my Father's workshop where the Pearls were kept and took the Pearls out of the box and put them into her handbag.
I had previously believed that my Great Aunt, Harriet Rippingall Partridge, had bequeathed these Pearls to Elizabeth Rona Partridge, my Aunt and wife of Uncle David (Aunt Elizabeth), Pamela Partridge, my Mother, and Trish Mackenzie, my Aunt. Consequently, in or about September 2018, when I provided a list of items that had still not been provided to me by the Executrix, I wrote that the Pearls had been bequeathed by Great Aunt Harriet to Elizabeth Partridge, Pamela Partridge, and Trish Mackenzie. (see 'A' of the Affidavit of the Executrix sworn 15 November 2018).
I subsequently was provided with the Will of Harriet Partridge by my Uncle David. When I read the Will I found that it did not mention pearls or pearls being distributed to Elizabeth Partridge, Pamela Partridge, and Trish Mackenzie.
Attached and marked 'RCP198' is a copy of the Will of Harriet Partridge I received from Robin Fern, Customer Service Officer, Probate Registry, Supreme Court of WA.
[12] Affidavit of Rhys Curjel Partridge sworn 13 October 2022 [24] - [28].
In her affidavit sworn on 15 November 2018 Mrs Levingston deposed:[13]
[T]he 3 string[s] of loose pearls were bequeathed to Elizabeth Partridge, Pamela Partridge and Trish MacKenzie. These do not form part of the estate and [Mr Partridge] has no entitlement to these items.
[13] Affidavit of Lola May Levingston sworn 15 November 2018 [10(iii)(b)].
In the course of submissions Mrs Levingston's counsel said that some pearls had been delivered to Mr Partridge. This statement was not consistent with Mrs Levingston's evidence. That said, it would appear that the issues in relation to the pearls are whether the pearls described by Mrs Levingston formed part of the estate and what has happened to them.
Procedural issues
The jurisdiction of the court to determine the issues raised by Mr Partridge is not in doubt. The jurisdiction is founded in s 24 of the Supreme Court Act and the court's inherent jurisdiction. The jurisdiction is supplemented by s 45 of the Administration Act.
What is in issue in this case is not the extent of the court's jurisdiction but the procedure for the exercise of that jurisdiction.
Brief reference to the law concerning the taking of an account on the basis of wilful default is required. The distinction between the taking of a common account and the taking of an account on the basis of wilful default was considered by Edelman J in Agricultural Land Management Ltd v Jackson [No 2],[14] and by EM Heenan J in Re Ellis;Ellis v Ellis.[15]The following propositions are derived from their Honours' judgments.
(a)In the context of the administration of an estate a wilful default involves the executrix not doing something which she ought to have done as distinct from doing something she ought not to have done.[16] In Agricultural Land Management Ltd v Jackson [No 2], Edelman J explained:[17]
In contrast with orders sought following a common account, the account which was taken on the basis of wilful default was substantially different. Those orders were dependent upon proof of a loss. An account taken on the basis of wilful default required the plaintiff to show that the custodial fiduciary, in breach of duty, failed to obtain a benefit for the fund. On the taking of the account the plaintiff could then 'surcharge' the account by the value of the rights that the custodial fiduciary would have obtained had the duty not been breached.
As Dr Elliott and Professor Mitchell have observed, the historic difference between a claim based upon falsification of a common account and a claim based on surcharge of an account on the basis of wilful default has been concealed in modern cases which generally refer to both as 'equitable compensation' … Those cases are of a fundamentally different character from cases of restoration on a common account. In wilful default claims, the claim is in the nature of a claim based on breach by a trustee. And the account taken on the basis of wilful default asks whether loss has been suffered.
Dr Elliott, whose writing has shone light and brought much clarity to this area of law, has suggested the use of the labels 'substitutive compensation' and 'reparative compensation' to differentiate the two types of claim. The former, based on the common account, describes a claim for the substituted value of the asset dissipated without authority: it demands that the trustee perform his or her duty to maintain the assets or fund. The latter, based on the account on the basis of wilful default, describes a claim for reparation for the loss suffered by breach of duty. (citations omitted and emphasis original)
(b)Accounts taken under s 43(1)(b) of the Administration Act and/or r 37 of the NCR can not be conducted on a wilful default basis. An account on the basis of wilful default can only be obtained if it had been specifically sought in a statement of claim and specifically ordered.[18]
(c)To establish a claim for interest on the late distribution of the residuary estate the residuary beneficiary must establish by proof that there has been a wilful default on the part of the executor in the distribution of the estate.[19]
[14] Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014) 48 WAR 1.
[15] Re Ellis; Ellis v Ellis [2015] WASC 77.
[16] Re Ellis; Ellis v Ellis [145] (EM Heenan J).
[17] Agricultural Land Management Ltd v Jackson [No 2] [347] - [349] (Edelman J).
[18] Re Ellis; Ellis v Ellis [171] (EM Heenan J), see also Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146 [46] (Giles JA), [1] (Sheller JA), [2] (Beazley JA).
[19] Re Ellis;Ellis v Ellis [31] (EM Heenan J).
Mr Partridge does not seek relief in the form of order for an inquiry and an account on the basis of wilful default. On a summary basis he seeks a declaration that there have been wilful defaults and compensation. This approach is inconsistent with the requirement established by the authorities that an account on the basis of wilful default will only be ordered if the wilful default has been established in anterior proceedings. Allegations of wilful default are serious allegations not suitable for summary determination. Mr Partridge must commence proceedings by writ of summons and plead the facts upon which he relies to establish wilful default.
In holding that Mr Partridge must establish the wilful defaults on which his claims are founded in an action I do not dissent from the views expressed by EM Heenan J in The Estate of Erminia Agnes Rogers v Rogers,[20] to the effect that once a referral to a Judge has been made under r 4(4) the Judge becomes seized of all matters relating to the administration of the estate in the probate jurisdiction and has the full amplitude of powers conferred by s 24 of the Supreme Court Act and the inherent jurisdiction not limited to the additional powers conferred by the Administration Act nor by those conferred by the NCR. I accept that there may be some issues arising in the context of the administration of estates that may be appropriate for a judge to determine on a summary basis on a referral under r 4(4) of the NCR but claims which depend on allegations of wilful default should be dealt with in the orthodox manner, that is, they should be specifically pleaded in an action.
[20] The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 [34] (EM Heenan J).
Although in the course of oral argument counsel for Mr Partridge was concerned about the delays that might ensue if she was required to plead out her client's claims in an action, pleadings should lead to greater clarity in the definition of the issues and ultimately assist in the efficient and just determination of the issues between the parties.
The way forward
For the reasons I have given in order to progress his claims Mr Partridge must commence proceedings by writ and plead out the claims in a statement of claim.
If Mr Partridge commences the proceedings which I consider are necessary expeditiously, I will enter them into my CMC List. I will list the proceedings for a trial either before the Christmas recess or shortly after it.
Conclusion
The referral under r 4(4) of the NCR is adjourned and will be relisted when sufficient time has elapsed for Mr Partridge to have commenced an action in respect of his wilful default based claims.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
31 OCTOBER 2022
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