Koh v Samuel Conrad Buckeridge as executor of the estate of Leonard Walter Buckeridge [No 2] - [2021] WASC 148

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KOH -v- SAMUEL CONRAD BUCKERIDGE as executor of the estate of LEONARD WALTER BUCKERIDGE [No 2] [2021] WASC 148
CORAM:   MASTER SANDERSON
HEARD:   9 APRIL 2021
DELIVERED          :   13 MAY 2021
PUBLISHED           :   13 MAY 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 named First Defendant
ANDREW BENJAMIN BUCKERIDGE as executor of the estate of LEONARD WALTER BUCKERIDGE
Second named First Defendant
RATHENAU INVESTMENTS PTY LTD as trustee for THE SAMUEL BUCKERIDGE TRUST
Second Defendant
CRYSTAL LATTICE PTY LTD as trustee for THE ANDREW BUCKERIDGE TRUST
Third Defendant
THE TRUSTEES FOR THE JOSHUA BUCKERIDGE TESTAMENTARY TRUST
Fourth Defendant
SAMUEL CONRAD BUCKERIDGE as trustee for THE LISE BUCKERIDGE TESTAMENTARY TRUST
First named Fifth Defendant
LISE FRANCES BUCKERIDGE as trustee for THE LISE BUCKERIDGE TESTAMENTARY TRUST
Second named Fifth Defendant
OUTSIDE OF SOCIETY PTY LTD as trustee of the THE RACHEL BUCKERIDGE TESTAMENTARY TRUST
Sixth Defendant
TESPERANCE PTY LTD as trustee of the THE ESPERANCE STEPHEN TESTAMENTARY TRUST
Seventh Defendant
TALBA PTY LTD as trustee of the THE ALBA STEPHEN TESTAMENTARY TRUST
Eighth Defendant
SIOK PUAY KOH as trustee of the THE KOH FAMILY TESTAMENTARY TRUST
First named Ninth Defendant
ANDREW BOON SAN TEO as trustee of the THE KOH FAMILY TESTAMENTARY TRUST
Second named Ninth Defendant
SAMUEL CONRAD BUCKERIDGE as trustee of the THE BUCKERIDGE GRANDCHILDREN TRUST
First named Tenth Defendant
JULIAN THEODORE ROSSLYN AMBROSE as trustee of the THE BUCKERIDGE GRANDCHILDREN TRUST
Second named Tenth Defendant
SAMUEL CONRAD BUCKERIDGE beneficiary of the estate OF LEONARD WALTER BUCKERIDGE
Eleventh Defendant
ANDREW BENJAMIN BUCKERIDGE beneficiary of the estate OF LEONARD WALTER BUCKERIDGE
Twelfth Defendant
RACHEL JANE BUCKERIDGE beneficiary of the estate OF LEONARD WALTER BUCKERIDGE
Thirteenth Defendant
LISE FRANCES BUCKERIDGE beneficiary of the estate OF LEONARD WALTER BUCKERIDGE
Fourteenth Defendant
JOSHUA ANTHONY BUCKERIDGE beneficiary of the estate OF LEONARD WALTER BUCKERIDGE
Fifteenth Defendant
JULIAN THEODORE ROSSLYN AMBROSE beneficiary of the estate OF LEONARD WALTER BUCKERIDGE
Sixteenth Defendant

Catchwords:

Appeal from decision of registrar - Practice and procedure - Action commenced by writ - Whether action should have been commenced by originating summons - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Plaintiff	:	B Dharmananda SC
First named First Defendant	:	P Cahill SC
Second named First Defendant	:	P Cahill SC
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
First named Fifth Defendant	:	No appearance
Second named Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance
Eighth Defendant	:	No appearance
First named Ninth Defendant	:	No appearance
Second named Ninth Defendant	:	No appearance
First named Tenth Defendant	:	No appearance
Second named Tenth Defendant	:	No appearance
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance

Solicitors:

Plaintiff	:	Iffla Wade
First named First Defendant	:	Jackson McDonald
Second named First Defendant	:	Jackson McDonald
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	Rigby Cooke Lawyers
First named Fifth Defendant	:	McLachlan Thorpe Partners
Second named Fifth Defendant	:	McLachlan Thorpe Partners
Sixth Defendant	:	Croftbridge
Seventh Defendant	:	Australian Unity Trustees Legal Services
Eighth Defendant	:	Australian Unity Trustees Legal Services
First named Ninth Defendant	:	No appearance
Second named Ninth Defendant	:	No appearance
First named Tenth Defendant	:	No appearance
Second named Tenth Defendant	:	Murcia Pestell Hillard
Eleventh Defendant	:	In person
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	Croftbridge
Fourteenth Defendant	:	McLachlan Thorpe Partners
Fifteenth Defendant	:	Rigby Cooke Lawyers
Sixteenth Defendant	:	Murcia Pestell Hillard

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

Re Sir Lindsay Parkinson & Co Ltd Settlement Trust (1965) 1 WLR 372

MASTER SANDERSON:

This action was commenced by writ of summons filed 18 December 2020. By letter dated 2 February 2021, the first and second defendants’ solicitors wrote to the principal registrar confirming they had no objection to the matter being entered into the CMC list. However, an issue had arisen between the parties as to the way in which the proceedings were commenced. Relevantly, the letter read as follows:
We also draw to the court's attention that there is presently a disagreement between the parties as to the manner in which the proceedings have been commenced. The defendants' position is that the proceedings ought to have been commenced by originating summons under Order 58 Rules 2 and 10 of the Rules of the Supreme Court 1971, rather than by writ and statement of claim. The defendants intend to seek a direction from the court to the effect that the matter should proceed as if it had been commenced by originating summons.

The question raised by the correspondence was considered by Registrar Whitby on 22 February 2021. On 25 February 2021 the learned registrar determined the action had been properly commenced by writ. She published reasons for doing so. On 3 March 2021 the first and second defendants appealed against the registrar's decision. These reasons deal with that appeal.
An appeal from a registrar is a hearing de novo. That is to say, I have to consider the matters raised by the parties anew. It is not a matter of the appellant establishing there was some error in the reasoning of the registrar. In fact, if I had been called on to approach the matter on the basis of errors made by the registrar I would have dismissed this appeal. In my view the reasoning of the registrar is correct and does not demonstrate any error of principle. The fact I have come to a different conclusion to the registrar has more to do with a difference of approach than anything else. This is a case in my view where there are two correct answers and conversely there are no wrong answers. It is simply my preference in cases such as this to deal with the matter on the basis of the originating process procedure rather than proceeding by way of writ.
That said when the first and second defendants filed their notice of appeal they did set out the grounds of appeal. For the sake of completeness (and really for no other reason) I will set out those grounds:
The Registrar erred in refusing to direct that the action proceed as if it had been commenced by originating summons for the following reasons:
1.As to the question whether the action had been properly commenced by writ, the Registrar at R[29] asked herself the wrong question. The question was not whether the proper construction of the amended will was the only question to be answered. The correct question was whether the primary questions raised in the proceedings or relief sought fell within RSC O 58 r 2 and/or RSC O 58 r 10. Exclusively they did so.
2.The Registrar incorrectly concluded that R[31]‑[33], in effect, that on the plaintiff's pleaded case there were substantive factual issues related to the effect and treatment of the executors' resolutions that were separate or additional to the question of the proper construction of the amended will.
The first and second defendants' position is straight forward and has two aspects. First, they say that this is an application which is brought under O 58 r 2 and as such ought be commenced by originating summons. They acknowledge that in certain circumstances, a claim brought against executors can be commenced by writ. But they say that is not the case here. That leads into the second point. They say there are no issues of fact between the parties which would necessitate the processes associated with a writ - pleadings, discovery, requests for particulars and so on. The first and second defendants say there are no contested facts separating the parties. Senior counsel for the first and second defendants made good that proposition by reference to the statement of claim.
The statement of claim was endorsed on the writ of summons. The first paragraph identifies the first and second defendants as executors of the will of the late Leonard Walter Buckeridge. Paragraph 2 pleads the plaintiff is a beneficiary under the will. Paragraph 3 pleads orders made in February 2018 pursuant to which the provision to the plaintiff made under the provisions of the will was increased. Paragraph 4 sets out in some detail the way in which the provision to the plaintiff was to be increased pursuant to the agreed orders.
It is the first and second defendants' position that none of these paragraphs are controversial. They do not give rise to any disputed fact. That is clearly correct. While paragraph 4 of the statement of claim is somewhat lengthy and complex, it does nothing more than plead the terms and to some extent, the effect of the orders made by the court. If the first and second defendants say the facts pleaded are not accurate they will have to make good that contention by reference to the orders. There is no extraneous evidence they would need to call to support their position.
By paragraph 5 it is pleaded that on or about 16 March 2018 the plaintiff sold a share back to a company as contemplated by cl 3(g) of the amended will. As a consequence of that sale the plaintiff alleges she became entitled to a gift in a certain specified amount. Paragraph 6 pleads an interpretation of the amended will. Once again none of these paragraphs raise any issues of fact.
By paragraph 7 of the statement of claim the plaintiff says the first and second defendants dispute the 'proper construction of the will and its proper effect'. Reference is made to earlier pleas. Particulars of the executors' position are provided. Reference is made to a letter from the executors' solicitors to the plaintiff's solicitors dated 18 September 2020. Paragraph 8 pleads the executors acted on their interpretation of the will. Paragraphs 9 and 10 plead the steps undertaken by the executors is consistent with their interpretation of the will. Paragraph 10 draws the pleading together by effectively alleging in acting as they did the executors failed to properly implement the terms of the will. The prayer for relief claims a series of declarations which properly considered really amount to declarations as to the proper interpretation of the will. It is important to note no relief is claimed directly against the executors.
The originating summons procedure is reserved for those cases where there are no disputes of fact between the parties. The first and second defendants say here based upon the pleaded claim there are no disputes of fact and accordingly the originating process procedure is available and having regard to O 58 r 2 of the Rules of the Supreme Court 1971 (WA) ought to be engaged.
The plaintiff says this is one of those cases where an allegation of breach of trust is made against the first and second defendants and as such the authorities require the action to be commenced by writ. During the course of his submissions counsel for the plaintiff made reference to a number of decisions. The position is perhaps best summarised by quoting from the decision of Buckley J in the decision of In Re Sir Lindsay Parkinson & Co Ltd Settlement Trust (1965) 1 WLR 372 (373). His Honour said:
Under rule 4 it was, I think, open to the plaintiffs to institute these proceedings either by originating summons or by writ; by the terms of the rule the matter is left in the discretion of the plaintiffs. But I desire to say that in my view clearly proceedings by beneficiaries against trustees of a contentious nature, charging the trustees with breach of trust or with default in the proper performance of their duties, whether the matters with which the trustees are charged are matters of commission or omission ought normally to be commenced by writ and not by originating summons, for in such proceedings it is most desirable that the trustees should know before trial precisely what is alleged against them. The appropriate form of proceedings, therefore, in my view, is proceedings by writ in which the issues between the parties will be clearly defined in the pleadings; under which the parties can, if they wish, seek further and better particulars of the matters alleged by their opponents; and in which there is full discovery. For where allegations of this kind are made against trustees, I think it is right that the trustees should have available to them the full machinery which exists in the case of proceedings instituted by writ and conduceted on pleadings, of discovering precisely what the charges are that are levelled against them. I say that because I do not want it to be thought that these proceedings constitute a precedent of the way in which, in normal circumstances, proceedings raising matters of the kind which the plaintiffs seek to raise in these proceedings should be instituted.
The reason why in the present action the proceedings were brought by originating summons rather than by writ was, I think, the fact that at the time when the proceedings were issued the matters in issue between the parties had become of great urgency, and it was thought that proceedings instituted by originating summons could be got before the court more speedily than proceedings instituted by writ. I am not saying that that was not a reasonable view to take.
During the course of submissions I asked senior counsel for the first and second defendants whether if the plaintiff made good her arguments and the court held that the interpretation of the will by the executors was wrong it would automatically mean there was a breach of trust on the part of the executors. Counsel maintained that was not so. With respect it is difficult to see how that can be so. But it is beyond the scope of these reasons to explore the issue further. Certainly senior counsel for the plaintiff was in no doubt on the issue. He maintained that if the plaintiff succeeded there could be no question but that the first and second defendants were in breach of trust. In fact that was why counsel indicated proceedings had been commenced by writ. That is the paradox at the heart of this appeal. The plaintiff has clearly proceeded by way of writ because she is of the view the first and second defendants have misinterpreted the will and are in breach of trust. The breach may be innocent but it is a breach nonetheless. In conformity with the authorities a writ then is the appropriate course to adopt. That course offers the parties allegedly in breach of trust the greatest protection by affording them the range of options available when an action is commenced by writ.
On the other hand the first and second defendants who are alleged to be in breach of trust do not want the protections and advantages offered by an action commenced by writ. They favour the originating summons process. They say it leads to a speedier resolution and is, in the circumstances of this case, the best option.
In my view the originating process is the best option here. I have reached that conclusion for two reasons. First, I cannot see there are any disputes of fact between the parties. Whatever may be their differences they all relate to what is the proper interpretation of the amended will. None of the parties have suggested there will need to be any extraneous evidence on this question. It is difficult to see how there could be. The will speaks for itself. Second, if the first and second defendants do not want the benefit of the court processes associated with an action commenced by writ then so be it. As Buckley J makes plain in his judgment requiring an action which could be commenced by originating summons to be commenced by writ is done for the protection of persons alleged to be in breach of trust. It would be a curious position if the first and second defendants were forced to accept perceived advantages of which they did not wish to avail themselves.
Accordingly, I would allow this appeal. Within 7 days the parties ought bring in a minute of orders which reflects these reasons. At the same time they should provide submissions with respect to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
13 MAY 2021