Koh v Samuel Conrad Buckeridge as executor of the estate of Leonard Walter Buckeridge - [2021] WASC 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KOH -v- SAMUEL CONRAD BUCKERIDGE as executor of the estate of LEONARD WALTER BUCKERIDGE [2021] WASC 46
CORAM:   REGISTRAR WHITBY
HEARD:   22 FEBRUARY 2021
DELIVERED          :   24 FEBRUARY 2021
FILE NO/S:   CIV 2244 of 2020
BETWEEN:   SIOK PUAY KOH
Plaintiff
AND
SAMUEL CONRAD BUCKERIDGE as executor of the estate of LEONARD WALTER BUCKERIDGE
First Defendant
ANDREW BENJAMIN BUCKERIDGE as executor of the estate of LEONARD WALTER BUCKERIDGE
Second Defendant

Catchwords:

Writ of summons or originating summons - Order 58 r 1, r 2, r 10 Rules of the Supreme Court 1971 (WA) - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Action appropriately commenced by writ of summons

Category: B

Representation:

Counsel:

Plaintiff	:	B Dharmananda SC & R Young
First Defendant	:	P Cahill SC
Second Defendant	:	P Cahill SC

Solicitors:

Plaintiff	:	Iffla Wade
First Defendant	:	Jackson McDonald
Second Defendant	:	Jackson McDonald

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

Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44

REGISTRAR WHITBY:

This action was commenced by the plaintiff against the defendants by writ of summons indorsed with a statement of claim on 18 December 2020.
The defendants seek an order that the action proceed as if it had been commenced by originating summons.
The plaintiff maintains that the action was properly commenced by writ. The plaintiffs rely upon the affidavit of Alec Gerard MacGill affirmed 22 February 2021.
For the reasons that follow, I find that the plaintiff appropriately commenced the action by writ of summons and therefore, decline to make the order sought by the defendant.

Background

The first and second defendants are the executors of the will of Leonard Walter Buckeridge (the deceased) dated 10 June 2008 (the will).
The deceased died on 11 March 2014 and probate of the will was granted to the defendants on 22 January 2015.
The plaintiff is a beneficiary under the will.
In Supreme Court of Western Australia CIV 1960 of 2015, the plaintiff (as seventh defendant) sought an order pursuant to the Family Provision Act 1972 (WA) for further provision from the estate of the deceased (the FPA action).
On 23 February 2018, Chaney J made orders in the FPA action by consent pursuant to O 43 r 16 of the Rules of the Supreme Court 1971 (WA) (RSC) which had the effect of amending the will to make, inter alia, additional provision for the plaintiff (the amended will).
On 17 June 2020, the defendants made resolutions to give effect to the amended will (the resolutions).
The plaintiff disputes that the resolutions do, in fact, give proper effect to the amended will.
The defendants say that the only issue to be determined by the court is the proper construction of the amended will.
The plaintiff says that the issues to be determined relate not only to construction of the amended will, but also to the character and effect of the resolutions.
It is the characterisation of the issues to be determined in the action that governs the correct form of originating process.

Should the action have been commenced by writ of summons or originating summons?

O 4 r 1 RSC provides that:
1. Subject to the provisions of any Act and of these rules -
(a) every action in the Court must be commenced by writ;
(b) civil proceedings between parties to be heard in chambers must be commenced by originating summons.
O 58 r 1 RSC provides:
Subject to the provisions of any Act and of these rules, civil proceedings between parties, which may be heard in chambers, must be commenced by originating summons.
Whether or not the action should have been commenced by originating summons rather than writ of summons depends upon whether this action may be 'heard in chambers'.
The plaintiff seeks the following relief in the statement of claim dated 18 December 2020 (statement of claim):
1.Declarations as to the proper construction of the amended Will in terms of paragraph 6 above including:
(a) a declaration that, on the proper construction of the amended Will of Leonard Walter Buckeridge, the plaintiff is entitled to a gift of $115,000,000 which is to be satisfied out of the Net Realisation Receipts as defined in clause 3.1(d) of the amended Will;
(b) a declaration that, on the proper construction of the amended Will of Leonard Walter Buckeridge, the gift of $115,000,000 is a capital payment;
(c) a declaration that, on the proper construction of the amended Will, the process in clause 3.1 of the amended Will (including cl 3.1(d)) is the mechanism by which payment of the gift of $115,000,000 is to be made.
2.A declaration that the purported resolutions of the Executors (Samuel Conrad Buckeridge and Andrew Benjamin Buckeridge) made on 17 June 2020 (as pleaded in paragraph 8 [of the statement of claim]) have no basis and are of no effect in so far as they concern the plaintiff and her entitlement to the gift of $115,000,000.
3.An order that the Executors take steps to ensure that the purported resolutions of the Executors made on 17 June 2020 (as pleaded in paragraph Page 12 8 above) are treated as having no effect in so far as they concern the plaintiff and her entitlement to the gift of $115,000,000.
4.A declaration in terms of paragraph 11 above, namely, that the payments made to the plaintiff by the Executors totalling $66,726,865.61 are payments made from Net Realisation Receipts to satisfy payment in part of the gift of $115,000,000 required to be made under the amended Will.
5.An order that the Executors take steps to treat and account for the payments made to the plaintiff by the Executors totalling $66,726,865.61 as payments made from Net Realisation Receipts to satisfy payment in part of the gift of $115,000,000 required to be made under the amended Will.
The defendants submit that the entirety of the relief sought by the plaintiff falls within either or all of the following rules of O 58 RSC:
2.Executors etc seeking certain relief without administration
(a)any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin or cestui que trust;
…
(e) directing the executors or administrators or trustees to do or abstain from doing any particular act in their character as executors or administrators or trustees;
…
(g)the determination of any question arising in the administration of the estate or trust;
…
10.Construction of written instruments
Any person claiming to be interested under a deed, will, or other written instrument, may apply by originating summons for the determination of any question of construction arising under the instrument, and for a declaration of the rights of the persons interested.
The defendants submit that, given each paragraph of the prayer for relief falls squarely within one or all of these rules, the action must be commenced by originating summons and that it is only in exceptional circumstances that the action can proceed by writ of summons.[1]
[1] ts 7 (22 February 2021).
The plaintiff submits that the relief sought in the action goes not only questions of construction of the amended will, but also to the true character and effect of the resolutions.[2]
[2] ts 5 – 6 (22 February 2021).
In order to determine whether this action wholly falls within all or some of the rules of O 58 RSC, and therefore, must have been commenced by originating summons, it is necessary to look to the statement of claim.
The plaintiff submits that the following paragraphs of the statement of claim establish that the issues in this action go beyond those of construction of the amended will:
7.The Executors dispute the proper construction of the amended Will and its proper effect as pleaded in paragraphs 3, 4, 5 and 6 [of the statement of claim].
Particulars
The plaintiff refers to a letter of 18 September 2020 from the Executor's solicitors, Jackson McDonald, to (among others) the plaintiff's solicitors where it was said: 'Based on advice obtained from the Estate's tax adviser's, the distributions thus far paid to [the plaintiff] (and the testamentary trusts) under clause 3.1(d) of the Will (as varied) have (other than a very small capital component) been paid from income of the Estate, not from capital.'
Further particulars may be provided before trial following discovery.
8.On or about 17 June 2020, the Executors purported to resolve as to certain Net Realisation Receipts (defined in cl 3.1(d) of the amended Will) that there would be 'Distributions of Estate Income constituting Net Realisation Receipts' and that in relation to these distributions:
(a) each beneficiary including the plaintiff shall be specifically entitled to an amount of the franked dividends calculated in accordance with section 207-58 of the Income Tax Assessment Act 1997 (Cth);
(b) each beneficially shall be presently entitled to a certain share of the Net Realisation Receipts.
Particulars
The plaintiff refers to para 32 of a draft letter dated 18 November 2020 from Ernst & Young, that the Executors' solicitors, Jackson McDonald, provided to (among others) the plaintiff's solicitors by letter of 20 November 2020.
Further particulars may be provided before trial following discovery.
9. By reason of the matters pleaded in paragraphs 3, 4, 5 and 6 [of the statement of claim]:
(a) by purporting to resolve that the plaintiff should receive a proportionate share of the Net Realisation Receipts in the form of income and with an entitlement to franked dividends, the Executors failed to ensure that the plaintiff receives the gift of $115,000,000 pursuant to the amended Will as a capital sum;
(b) the Executors were not entitled to resolve that the plaintiff should receive a proportionate share of the Net Realisation Receipts in the form of income and with an entitlement to franked dividends; and
(c) the Executors should have resolved that the plaintiff should receive payment of the gift to the extent of the available payments derived the Net Realisation Receipts.
…
11. By reason of the matters pleaded in paragraphs 3, 4, 5, 6 and 9 [of the statement of claim], the Executors are required to treat and account for the payments pleaded in paragraph 10 above as payments made from Net Realisation Receipts to satisfy payment in part of the gift of $115,000,000 required to be made under the amended Will.
The plaintiff submits that if this action had been commenced before the resolutions were made, it would have been appropriate to commence it by originating summons as the issues would have solely related to the construction of the amended will.[3]
[3] ts 4 (22 February 2021).
However, where the resolutions have been already been made by the defendants in accordance with their view about the proper construction of the amended will, this gives rise to additional factual issues, being the effect of the resolutions and how they may be remedied, that flow from the alternate construction pleaded by the plaintiff. The defendants must plead to these issues, the plaintiff submits, in order to assist the plaintiff, the court and the other beneficiaries under the amended will to identify how the defendants characterise the resolutions in relation to the distributions to each of the beneficiaries.[4]
[4] ts 6 (22 February 2021).
The defendants dispute that the issues raised in the statement of claim go beyond issues relating to the construction of the amended will as the statement of claim does plead any breach by, or dereliction of duty on the part of, the defendants.[5] The defendants submit that the facts pleaded in the statement of claim are unexceptional and can be addressed by affidavit evidence.[6] All that remains for the court to determine is the proper construction of the amended will.
[5] ts 8 (22 February 2021).
[6] ts 9 (22 February 2021).
The defendant says that there good reasons for the court to insist upon this action proceeding by way of originating summons. These are:
(a)efficiencies of time and cost – pleadings and discovery are not necessary where the only issue to be determined relates to construction of the amended will; and
(b)to avoid casting the defendants, in their role as executors, as adversaries of the plaintiff. To do so misunderstands their role as executors – their role is to act objectively in the best interests of the beneficiaries as a whole and they are not properly a contradictor in this action. Yet if the action proceeds by way of writ, then that is exactly the role they are cast to play.
It is clear from the statement of claim that the plaintiff is seeking relief as to the proper construction of the amended will. If this was the only matter in issue, then it would be appropriate that this action be commenced and proceed by way of originating summons.
This application turns upon whether the statement of claim pleads matters and seeks relief that go beyond the construction of the amended will. If I find that they do, then the action has been properly commenced by writ and should proceed as such.
In Corruption and Crime Commission of Western Australia v McCusker AO QC,[7] Martin CJ, in considering the appropriate form of process, said:
It can be seen from that brief enunciation of the grounds that while some of them depend upon questions of statutory construction, most particularly the allegation that the Inspector went beyond his statutory powers, that he failed to comply with the CCC Act and that he breached a statutory prohibition upon the material that may be contained within a report, there are other aspects of the case that go well beyond questions of statutory construction and invoke common law principles relating to such things as the denial of procedural fairness, the taking of account of irrelevant considerations, unreasonableness and errors of fact.
I take the view that O 58 r 11,[8] when read in the context of the Rules as a whole, relates only to proceedings in which the primary or overwhelmingly dominant question for determination by the court is the question of construction of the statute. I do not think it can be said that these are proceedings that can be so characterised and therefore in my view they are not proceedings which can be commenced by originating summons.
[7] Corruption and Crime Commission of Western Australia v McCusker AO QC [2009] WASC 44 [8] ‑ [9].
[8] The equivalent of O 58 r 10 RSC.
Is the primary or dominant question for determination of the court in this action the question of the proper construction of the amended will? While it is certainly a question to be determined, I accept the plaintiff's submission that it is not the only question to be determined.
The question as to the characterisation of the resolutions and the remedies available in relation to the resolutions are also issues that requires determination by the court. These issues are evident from par 9 of the statement of claim where the plaintiff pleads that, in making the resolutions, the defendants 'failed to ensure' that the plaintiff received the distribution pursuant to amended will as a capital sum, that the defendants 'were not entitled to resolve' that the plaintiff receive her share under the amended will as income and that the defendants 'should have resolved' that the plaintiff receive her distribution in a certain manner. Likewise, pars 3 and 4 of the prayer for relief seek declarations that the resolutions, to the extent they affect the plaintiff, are of no effect and that the defendants take steps to ensure that the resolutions are treated as having no effect.
In my view, the issues of the effect and treatment of the resolutions are not merely an ancillary issues. They are disputes of fact which require definition by way of pleadings. These disputes of fact render the proceedings appropriately commenced by writ. The fact that the resolutions were made before any issue of construction was determined has placed the defendants in the role of contradictor – the commencement and continuation of this action by writ of summons does not cast them in a role they had already assumed.

Orders

Given I have determined that the action was properly commenced by writ, no orders are required in relation to the defendants’ application for the action to proceed as if commenced by originating summons, save as to the issue of costs. I will hear from the parties as to costs of this application and in relation to further programming orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TG
Court Officer
24 FEBRUARY 2021