Julia Johnston, as Executor of the Will of Elsie Birks v Marsh

[1999] WASC 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   JULIA JOHNSTON, AS EXECUTOR OF THE WILL OF ELSIE BIRKS -v- MARSH & ANOR [1999] WASC 115

CORAM:   WHEELER J

HEARD:   21 JULY 1999

DELIVERED          :   21 JULY 1999

PUBLISHED           :  4 AUGUST 1999

FILE NO/S:   CIV 1835 of 1996

BETWEEN:   JULIA JOHNSTON, AS EXECUTOR OF THE WILL OF ELSIE BIRKS

Plaintiff

AND

RITA MARSH
First Defendant

ALAN MARSH
Second Defendant

FILE NO/S              :CIV 2423 of 1996

BETWEEN              :RITA MARSH

Plaintiff

AND

JULIA JOHNSTON, AS EXECUTOR OF THE WILL OF ELSIE BIRKS
First Defendant

SAVE THE CHILDREN FUND (WA DIVISION) INC, AS AGENTS FOR SISTER GABRIELLE

(Page 2)

MCDERMOTT CHARITABLE TRUST OF WANSLEA FAMILY SUPPORT SERVICES ACTIVE FOUNDATION UN COMMITTEE OF WA
Second Defendant

Catchwords:

Costs - Turns on own facts

Legislation:

Nil

Result:

Various orders

Representation:

CIV 1835 of 1996

Counsel:

Plaintiff:     Mr J C Curthoys

First Defendant             :     Mr D Peterson

Second Defendant         :     Mr D Peterson

Solicitors:

Plaintiff:     Jamieson Johnston

First Defendant             :     Datlin Peterson

Second Defendant         :     Datlin Peterson

CIV 2423 of 1996

Counsel:

Plaintiff:     Mr D Peterson

First Defendant             :     Mr J C Curthoys

Second Defendant         :     No appearance

(Page 3)

Solicitors:

Plaintiff:     Datlin Peterson

First Defendant             :     Jamieson Johnston

Second Defendant         :     No appearance

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

Nil

Case(s) also cited:

Nil

(Page 4)

1. WHEELER J:  I do not think it is necessary to set out the history of this matter, which is contained in my reasons delivered on 23 April 1999, Library No 990207.  On 21 July 1999 I heard argument as to the appropriate orders to be made.  So far as CIV 2423 of 1996 is concerned, only the issue of costs is in contention.  So far as CIV 1835 of 1996 is concerned, the defendants submitted that it was not necessary for me to order that they held 56.7 per cent of their registered interest in the relevant land on trust for the estate of the late Mrs Birks, nor should I order that they execute a transfer of that proportion of their registered interest in the property to the plaintiff.  Costs were also in dispute in that action.

2. Essentially the basis of the argument on the part of the defendants was that the executor had been unreasonable in bringing and pursuing action CIV 1835 of 1996, and in opposing application 2423 of 1996.  It was further submitted that in CIV 1835 of 1996, the plaintiff had not made out any of the bases of relief pleaded in the statement of claim.

3. To take the second point argued first, the action was not, at trial, run on the basis of the pleadings.  Mr and Mrs Marsh appeared in person, and in their evidence did not seek to maintain the allegation pleaded in the defence that the relevant funds were a gift from Mrs Birks to Mrs Marsh.  Although he would have been entitled to do so, counsel for the plaintiff  did not object to what was effectively complete abandonment of the defendant's pleadings and the substitution of an entirely different evidentiary basis for opposing the relief sought.  In my view, it is not appropriate that a course taken as an indulgence to unrepresented litigants should now be held against the plaintiff.  The sworn evidence of Mrs Marsh at trial was that she had not returned to the estate funds which she had regarded as the property of her late mother.  On that basis, I am of the view that (save as to costs) the plaintiff is entitled to the orders in respect of the land.

4. It is unfortunate that this matter was not settled, but I do not think that it can be said that the executor has behaved unreasonably either in bringing or in maintaining the action.  Had Mrs Marsh revealed to the executor that she regarded the relevant funds as belonging to her deceased mother, and had she returned them to the estate, action 1835 of 1996 would have been entirely avoided, and I can see no basis upon which the making of some provision for Mrs Marsh in action 2423 of 1996 could have reasonably been opposed.  However, the relevant facts were not disclosed by Mrs Marsh until trial. 

(Page 5)

1. Further, although the action has been unnecessarily costly, again most of the unnecessary cost appears to me to be attributed to Mr and Mrs Marsh.  For example, they did not consent to the reception of a substantial quantity of documentary evidence in respect of which it was necessary then for the executor to call witnesses from interstate and, in one instance, from Scotland, which witnesses were subject to minimal cross‑examination.  I have received a report of a mediation conference which is not adverse to either the executor or Mr and Mrs Marsh.  I have perused certain correspondence, without prejudice save as to costs, which shows that the executor did not accept certain offers to settle the matter.  While I think it is unfortunate that the executor did not more actively pursue negotiations in relation to the settlement offers, in order to see if some satisfactory outcome could be reached, I do not think that the executor's conduct could be regarded in any way as so unreasonable as to deprive her of costs.

2. I would therefore make the following orders:

CIV 2423 of 1996

1.The will of the deceased be varied by providing that the whole of the estate exclusive of the three diamond rings the subject of specific bequests in par 5 of the will be distributed to the plaintiff.

2.A certified copy of this order be made upon the probate of the will pursuant to s 14(4) of the Inheritance (Family and Dependants Provision) Act.

3.The costs of all parties be taxed and paid by the first defendant out of the estate.

CIV 1835 of 1996

1.It is declared that the defendants hold 56.7 per cent of their registered interest in the land comprised in certificate of title vol 1828 folio 0093 ("the Property") on trust for the estate of the late Elsie Birks.

2.The first defendant and the second defendant execute a transfer of 56.7 per cent of their registered interest in the property to the plaintiff in the form of the transfer annexed thereto.

3.It is adjudged that the defendant Rita Marsh is indebted to the estate of the late Elsie Birks in the sum of $31,613.98 together

(Page 6)

with interest thereon at 6 per cent from 5 May 1995 until 23 April 1999.

4.The plaintiffs costs of the action be taxed and paid by the first and second defendants.

5.The order in par 2 be stayed until the expiry of 30 days from today's date, or until further order.

6.The parties to have liberty to apply in respect of O 2.

The Caveat

1. Some argument was addressed to me in respect of an application in respect of a caveat which is apparently related to this action.  That matter has never been put before me, nor have I determined it.  However, from what I understand of that matter, it would appear to follow from my reasons of 23 April 1999 and from this note of my reasons, that the executor should have the costs of that matter also.  I would express the hope that the parties will be able to deal with that without further application.  So far as the practicalities of the orders made are concerned, it may be that the first and second defendants will be unable to raise funds against the property, should they wish to do so, in order to satisfy the orders as to costs, until the caveat is removed.  Again, one would hope that the parties will be able to come to some arrangement between themselves, and if necessary file minutes of appropriate consent orders.  However, the intention of O 5 and O 6 in CIV 1835 of 1996 is that the parties should be able to return to me for further orders should there be practical difficulties of that kind.