KENWORTHY-GROEN v Grove - [2021] WASC 364

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   KENWORTHY-GROEN -v- GROVE & ANOR [2021] WASC 364
CORAM:   MASTER SANDERSON
HEARD:   13 OCTOBER 2021
DELIVERED          :   28 OCTOBER 2021
FILE NO/S:   CIV 2188 of 2020
BETWEEN:   SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE
Plaintiff
AND
NICHOLAS GROVE
First Defendant
SIMON DIRK KENWORTHY-GROEN as trustee for THE GROVE GRAND FATHER FAMILY TRUST
Second Defendant

Catchwords:

Practice and procedure - Claim of privilege - Judicial advice sought under Administration Act - Turns on own facts

Legislation:

Administration Act 1903 (WA)
Trustee's Act 1962 (WA)
Trustee's Act 1925 (NSW)
Wills Act 1970 (WA)

Result:

Inspection ordered

Category: B

Representation:

Counsel:

Plaintiff	:	LA Tsaknis
First Defendant	:	PG Donovan
Second Defendant	:

Solicitors:

Plaintiff	:	Fort Knox Legal
First Defendant	:	MDS Legal
Second Defendant	:	Croftbridge

Cases referred to in decision:

Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and Another (2008) 237 CLR 66
Pringle v Pringle [2010] WASC 206
Re Estate of Anastasios Keriacules Challis (Deceased) [2010] WASC 333

MASTER SANDERSON:

These proceedings were brought by the plaintiff in his capacity as executor of the estate of the late William Grove (the deceased) to seek direction from the court as to the construction of the bequest to the first defendant in the will of the deceased. These present proceedings are but one aspect of what appears to be interminable disputes between the beneficiaries of the deceased's estate.
As at the date of his death, the deceased left a net estate valued at just over $28.5 million. As at 21 February 2020, the value of the estate was just over $24.5 million. The bulk of the estate derived from a business known as Indian Ocean Hotel and the land on which that hotel stands. The deceased's will is a complicated document and the fact the beneficiaries are unable to agree among themselves complicates matters further. For the purposes of this application, it is cl 6 of the deceased's will which is relevant. It reads as follows:
PARTNERSHIP SHARE OR PARTNERSHIP INTEREST AFTER DISSOLUTION
I give 5% of the Indian Ocean Hotel (IOH), being taken from my 70% partnership share, or my share in partnership property (my share), free from estate expenses, to my grandson Nicholas Grove (Nick) and the remaining 65% of the IOH, which was the balance of my share, to be vested into THE GROVE GRANDFATHER FAMILY TRUST.
i.My Executor and Trustee will support Andrew being the manager in charge of the IOH, subject to:
a.The Executor and Trustee approving purchase and expense of the IOH greater than $100,000; and
b.The Executor and Trustee approving salaries of the IOH staff;
My Executor and Trustee, in his absolute discretion may review, maintain or revoke the support give to Andrew being the manager in charge of the IOH, at any time.
ii.If the IOH remains…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read KENWORTHY-GROEN v Grove and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] WASC 364
Decision Date

CaseChat Overview and Summary

In the case of Kenworthy-Groen v Grove, the dispute revolves around the interpretation of clause 6 in a will and the privilege claimed over certain documents in the context of estate administration. The application was made under section 45 of the Administration Act 1903 (WA), seeking the court's guidance on the interpretation of the will and the application of privilege to certain documents. The court was required to determine whether the plaintiff's claim of privilege over the documents in question was valid and whether any of the grounds for challenging this privilege, as argued by the defendant, were successful.

The primary legal issue was whether the plaintiff's claim of privilege over specific documents was justified. The plaintiff had claimed privilege over certain documents, including a handwritten letter marked 'Confidential Urgent' concerning changes to the will. The defendant argued that the privilege had been waived and challenged the validity of the claimed privilege on other grounds. The court had to assess the arguments from both parties and decide whether the privilege was applicable and, if so, whether it was correctly claimed.

The court examined the principles of legal professional privilege and the circumstances under which it could be waived. It noted that the plaintiff had the right to seek an interpretation of the will and to apply for advice on the privilege of documents, as established in previous cases. The court concluded that the plaintiff's claim of privilege was valid, as the documents in question were prepared for the dominant purpose of obtaining legal advice and were not waived. The court found that the plaintiff had not acted in a manner that would lead to the waiver of privilege and that the documents were protected under the relevant legal principles.

The court's final orders were that the plaintiff's claim of privilege over the specified documents was upheld, and the defendant's challenge to the privilege was dismissed. The court confirmed that the documents were protected under legal professional privilege and that no waiver had occurred. This decision provided clarity on the interpretation of the will and the application of privilege in this estate administration matter.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This application is made under s 45 of the Administration Act 1903 (WA):45.Court may settle all questions arising in administration(1)The Court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real and personal estate which an executor or administrator or Public Trustee may have in hand, or as to the residue of the estate, as the circumstances of the case may require.(2)Such order shall bind all persons whether sui juris or not.(3)No ﬁnal order for distribution shall be made except upon notice to all the parties interested, or as the Court may direct. The application is supported by an affidavit of the plaintiff sworn 30 November 2020. In that affidavit the plaintiff sets out the relevant facts and explains why difficulties have arisen in interpreting cl 6 of the will and why the court's advice is sought. Appearing as attachment SKG11 to the affidavit is a copy of counsel's advice dated 30 October 2020. Counsel examined in detail the difficulties in interpreting cl 6 of the deceased's will. He recommended an application be made under s 45 of the Administration Act, and that doubtless was the origin of these proceedings. In April 2021, a dispute arose between the parties as to whether or not the plaintiff ought provide discovery of documents to the first defendant. The matter could not at first be resolved and was set down for a special appointment. Just prior to the hearing of the appointment, the parties reached agreement and the plaintiff consented to an order he provide discovery. This was done by way of an affidavit of discovery sworn by the plaintiff on 14 May 2021. In that document, the plaintiff claimed privilege over certain documents. Without quoting the list in full, a flavour of the nature of the documents over which privilege is claimed can be seen from the description of document 11: Copy of signed handwritten letter from W Grove to Appius Solicitors marked 'Confidential Urgent' 'Changes to my Will' with instructions to solicitors to prepare for the dominant purpose of obtaining legal advice. By this application, the first defendant challenges the plaintiff's claim to privilege. It does so on a number of grounds including that privilege has been waived. Before dealing with the parties' arguments, I should make two general comments about this application. First, it is clear it is open to the plaintiff to make an application of this kind in the circumstances of this case. In Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand and Another (2008) 237 CLR 66, the High Court was dealing with s 63(1) of the Trustee's Act 1925 (NSW). That section has its analogue in s 92 of the Trustee's Act 1962 (WA). The comments made by the High Court are equally applicable to s 45 of the Administration Act. The court said:58.Only one jurisdictional bar to s 63 relief exists: the applicant must point to the existence of a question respecting the management or administration of the trust property or a question respecting the interpretation of the trust instrument. The Court of Appeal did not deny that both kinds of question existed in the present case. Hence, as the Court of Appeal recognised and as the plaintiffs accept, the dispute in this appeal relates only to the question whether Palmer J erred in the exercise of his discretion.