Larussa Pastoral Holdings Pty Ltd v Carr
[2015] WASCA 194
•18 SEPTEMBER 2015
LARUSSA PASTORAL HOLDINGS PTY LTD -v- CARR [2015] WASCA 194
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 194 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:130/2015 | 16 SEPTEMBER 2015 | |
| Coram: | MURPHY JA | 18/09/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LARUSSA PASTORAL HOLDINGS PTY LTD LARUSSA CUSTODIAN SERVICES AUSTRALIA PTY LTD ANNA CARR |
Catchwords: | Practice and procedure Application for a stay Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 73 r 2, O 73 r 8 Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, r 27, r 29, r 32(2)(a), r 43 Civil Judgments Enforcement Act 2004 (WA), s 15 |
Case References: | Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Hall v Hall [2007] WASCA 94 Williamson v The Bendigo Adelaide Bank Ltd [No 2] [2012] WASCA 269 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LARUSSA PASTORAL HOLDINGS PTY LTD -v- CARR [2015] WASCA 194 CORAM : MURPHY JA HEARD : 16 SEPTEMBER 2015 DELIVERED : 18 SEPTEMBER 2015 FILE NO/S : CACV 130 of 2015 BETWEEN : LARUSSA PASTORAL HOLDINGS PTY LTD
- First Appellant
LARUSSA CUSTODIAN SERVICES AUSTRALIA PTY LTD
Second Appellant
AND
ANNA CARR
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : CARR -v- LARUSSA PASTORAL HOLDINGS PTY LTD [2015] WASC 300
File No : CIV 1132 of 2015
Catchwords:
Practice and procedure - Application for a stay - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 73 r 2, O 73 r 8
Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, r 27, r 29, r 32(2)(a), r 43
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr F J Mestichelli
Second Appellant : Mr F J Mestichelli
Respondent : Mr S M Standing
Solicitors:
First Appellant : Dunns Corporate Counsel
Second Appellant : Dunns Corporate Counsel
Respondent : Friedman Lurie Singh & D'Angelo
Case(s) referred to in judgment(s):
Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Hall v Hall [2007] WASCA 94
Williamson v The Bendigo Adelaide Bank Ltd [No 2] [2012] WASCA 269
1 MURPHY JA: On 16 September 2015, I heard an application for a stay of orders made on 13 August 2015, pursuant to a decision by Master Sanderson delivered on that date: Carr v Larussa Pastoral Holdings Pty Ltd.1 The learned master ordered that within 10 days, ie, by 23 August 2015, the second-named appellant (Larussa Custodian Services) as trustee of Larussa Pastoral Trust (the Trust) produce for inspection by the respondent, and for the respondent to take copies of, certain documents relating to the Trust in its possession, custody or power.
2 I dismissed the application with reasons to follow. These are my reasons.
Background and the master's decision2
3 The respondent is and was the administratrix of the estate of the late Giuseppe Larussa (the deceased).
4 It appears that, relevantly, the deceased was survived by two children, the respondent (his daughter) and Mr Tony Larussa (his son) and by Maria (his wife).
5 The respondent obtained letters of administration on the basis that the deceased had died intestate.
6 The respondent came to the view that the Trust held a beneficiary loan account in the name of the deceased in the sum of $7 million. The Trust was a discretionary trust created on 24 July 2003. At that time, it appeared that the first-named appellant (Larussa Pastoral Holdings) was the trustee of the Trust. The respondent requested copies of certain Trust documents, but her attempts were unsuccessful. That led to the making of the application before the master. In the proceedings before the master, on 23 July 2015, Larussa Pastoral Holdings filed an affidavit, sworn by Mr Tony Larussa, to the effect that Larussa Pastoral Holdings was no longer the trustee of the Trust, and that it had been replaced by the Larussa Custodian Services.
7 By originating summons dated 29 January 2015, as amended on 24 July 2015, the respondent sought orders to the effect that the trustee of the Trust produce documents in relation to the Trust.
8 The respondent's application was opposed by the appellants on two grounds. One was that any interest that the deceased had in the Trust had been extinguished on his death, and that it was thereby not open to the respondent as the administratrix of his estate to request documents relating to the Trust. The master rejected that contention and said:3
It may well be the case any rights the deceased had in relation to the trust were extinguished at his death. But, if at the date of his death there was a loan account in his name and to which he was entitled then the administratrix of the estate is entitled to see the relevant documents. If any authority is required for that proposition it is found in the Court of Appeal decision in Schreuder v Murray [No 2] [2009] WASCA 145. There can be no suggestion the plaintiff is seeking the documents for anything other than a proper purpose - she wants to ascertain what is in the deceased's estate.
9 The other ground upon which the appellants contested the application was that the respondent lacked the power to bring the application having regard to the following matters. After the grant of letters of administration to the respondent, Mr Larussa, through his solicitors, wrote to the court advising that he believed that an informal will had been located. The court registry then issued a 'Citation to Bring in Letters of Administration' pursuant to O 73 r 8 of the Rules of the Supreme Court 1971 (WA) (Rules). The respondent, pursuant to the citation, delivered the letters of administration to the probate registry. Larussa Custodian Services contended that once the letters of administration had been delivered to the registry, the respondent no longer had the power to act as administratrix of the estate.
10 The master rejected this contention. The master said that the issuing of the citation is a necessary precursor to a party seeking revocation of letters of administration, and he referred in that regard to O 73 r 2 of the Rules which provides:
(1) A probate action must be begun by writ issued out of the Central Office.
(2) A writ beginning an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person shall not be issued unless a citation under rule 8 has been issued or the probate or letters of administration, as the case may be, has or have been lodged in the Court.
11 The master noted that O 73 r 8 provides:
8. Citation to executor etc. to bring in probate etc.
In an action for the revocation of the grant of probate of the will, or letters of administration of the estate, of a deceased person, a citation may, on the application of the plaintiff, be issued against the person to whom the grant of probate or letters of administration was made requiring him to bring into and leave at the Central Office the probate or letters of administration, as the case may be.
12 The master continued:4
The issue of the citation is an administrative action. It is taken by the registrar without reference to a master or a judge and it cannot affect in any legal sense the position of the administrator of the estate. Of course it may have a profound practical effect. By way of example, a financial institution will not, generally speaking, open an account in the name of an executor or administrator without citing the grant of probate or the letters of administration. If such an account had been opened and a grant had been returned to the registry pursuant to a citation then it may be improper for an administrator to continue to operate an account without giving the financial institution notice the letters of administration had been returned to the registry pursuant to the citation.
All of that does not mean administration of the estate is entirely paralysed. Under s 35 of the Administration Act 1903 (WA) the court may appoint a manager and receiver of the estate pending litigation. Further, an administrator who has returned a grant may still seek directions under s 45 of the Administration Act. It is not difficult to imagine a circumstance where an administrator would seek to use one or other of these provisions.
That leaves open the question of the status of the administrator once the letters of administration have been returned pursuant to the citation. In my view, as a matter of law the person to whom the letters of administration have been granted remains the administrator of the estate. The practical difficulties the administrator may encounter is one thing. But unless and until the letters of administration are revoked there is no basis for suggesting the administrator cannot act on behalf of the estate. It may be in certain circumstances, a court would restrain an administrator from acting. For instance, if an administrator intended to make a distribution from the estate which was inconsistent with the alternative will a court could doubtless restrain the administrator from taking that action.
In this case there is no risk to the estate. The administrator is simply doing what any administrator or executor should do - she is attempting to ascertain what the assets of the estate are. This application is not mischievous; it is necessary. The reluctance of Tony Larussa to provide documents which are necessary to establish the extent of his late father's estate seems inexplicable. He can have no complaint when the plaintiff is doing nothing more or less than what she is obliged to do in her capacity as administrator.
13 The master had earlier noted5 that the respondent was named as co-executor of the informal will.
The appeal
14 On 21 August 2015, the appellants filed an appeal notice and an application for a stay. The notice of appeal did not state that leave was required, although the master's decision was interlocutory. On 31 August 2015, the appellants filed an amended appeal notice. The amendment was to the effect that the appellants required leave to appeal.
15 An interlocutory appeal must be commenced within 14 days after the date of the decision being appealed: pt 5 r 26(1) of the Supreme Court (Court of Appeal Rules) 2005 (WA) (Court of Appeal Rules).
16 An appeal is not commenced until, relevantly, it has been filed and served in compliance with pt 5 r 29 of the Court of Appeal Rules: pt 5 r 27 of the Court of Appeal Rules. Rule 29(4) provides that the appeal notice must be served on the respondent personally. On 10 September 2015, personal service of the appeal notice was effected on the respondent.6 Accordingly, this appeal was not commenced until 10 September 2015.
17 Rule 32(2)(a) of the Court of Appeal Rules requires that an appellant's case in an interlocutory civil appeal be filed within seven days after the date on which the appeal notice is filed.
18 The appellants have not applied for an extension of time in which to commence the appeal; nor filed an appellants' case; nor applied for an extension of time in which to file an appellants' case.
The application for a stay
19 The appellants contend that their application was brought pursuant to the Court of Appeal Rules, and the Civil Judgments Enforcement Act 2004 (WA).
20 In support of the application for a stay, Mr Tony Larussa swore an affidavit filed 21 August 2015 which includes, relevantly, statements to the following effect:
6. The first and second applicants now seek to challenge and set aside the orders of Master Sanderson for the disclosure and inspection of private trust documents referred to in the order of the master on several grounds which include:
(a) the standing of the [respondent] to bring or sustain the original cause is challenged and the law in relation thereto is not settled nor is there any authorities at law to support the findings as to citation of the learned master;
(b) there is a separate action afoot which seeks to prove an informal will which would affect the standing of the defendant as administratrix;
(c) there is a significant volume of documents including documents which may attract professional privilege;
(d) the learned master erred in law in finding that hearsay evidence was admissible;
(e) the respondent seeks to advance her own private beneficiary interests at the expense of the estate and using the powers of administratrix to do so and seek to engage in speculative litigation for which she is the only or primary beneficiary at the expense of the estate.
7. The first and second [applicants] assert that the respondent is seeking to reply upon discovery in order to institute litigation for which she alone is the primary beneficiary prior to the determination of her standing as Administratrix.
8. The balance of convenience is that the first and second applicants [would] suffer harm that cannot be reversed if an interim order is made out and complied with pending determination of appeal while the respondent suffers no pre-judge in any delay until appeal may be heard [sic].
9. The applicants assert that the cause of action to appeal will be in effect lost and defeated if the orders of Master Sanderson are required to be complied with by the first and second applicants prior to the determination of any appeal.
21 Also, in support of the application for a stay, Mr A A Humd swore an affidavit on 31 August 2015. Mr Humd deposed to the fact that he is 'a qualified legal executive' and is engaged on behalf of the appellants' solicitors 'in respect to certain matters under supervision'. Mr Humd deposed that:
3. In or around June and August 2013 I was requested to confer and advise with several persons including the late Mr Giuseppe Larussa and Tony Larussa. Included in this advice was the reconstruction of the Larussa Pastoral Trust which (at that time) Larussa Pastoral Holdings Pty Ltd was the corporate trustee.
…
6. I have inspected several documents requested by the respondent in orders made by Master Sanderson dated the 13th August 2015 and can say:
6.1 that documents directly reference advice given;
6.2 that certain documents contain written advice regarding certain aspects of the Criminal Property Confiscation Act 2000 (WA);
6.3 copies of advice are attached to certain resolutions adopted by the directors involving the reconstruction of the trust.
7. I have conferred with learned counsel and have taken the view on advice that the disclosure of this advice or document containing protected communications might lead to certain conclusions or infer (correctly or incorrectly) certain conduct or relationships would be preputial [sic] in nature, adversely affect the reputation of the late Mr Larussa or adversely affect the interests unrepresented beneficiaries [sic].
22 In their submissions, the appellants contended, in effect, that:
1. The appeal will be rendered nugatory if a stay is not ordered in that the information sought to be disclosed will be in the mind of the respondent and cannot be recalled or expunged, and that the 'use or abuse of the information so obtained' could not be effectively mitigated or restricted.
2. There are special circumstances such that it would be sufficient to satisfy the court that it is 'just or reasonable to order a stay so as to perverse [sic - preserve] the subject matter and the integrity of the litigation'.
3. The appellants have reasonable prospects of success given the lack of authorities on the issue of the effect of the return of letters of administration pursuant to a citation under O73 r 8.
4. The master erred in finding a right to documents of a private trust where there was 'no residential' [sic - residual] benefit flowing to the estate.
5. The master erred in admitting hearsay evidence where hearsay evidence was not admissible and moreover, when the hearsay was derived from without prejudice communications between the parties.
6. The respondent's conduct amounted to an abuse of process to use the proceedings for the purposes of civil discovery or enforcement of shareholder rights pursuant to the Corporations Act 2001 (Cth) and that she was pursuing her own beneficial interest and not that of the estate.
7. The appellants assert that the orders require the disclosure of 'legal protected communications and advice rendered both jointly and singularly to the trustees and to them individually', and that such communications should not have been ordered to be disclosed.
8. The parties have been 'bitterly estranged for some 24 years and there is a real prospect that such information may be used in a vindictive or malicious manner'. On the other hand, the respondent is said to suffer no disadvantage if there is a delay whilst the appeal is determined. It is submitted that, accordingly, the balance of convenience favours the granting of the orders sought.
Disposition
23 Special circumstances have to be shown before a suspension order may be made: see s 15(3) of the Civil Judgments Enforcement Act. This is also the case in an application for a stay under r 43: Hall v Hall;7Williamson v The Bendigo Adelaide Bank Ltd [No 2].8
24 I was not persuaded that special circumstances had been shown to exist in this case for the following reasons.
25 First, the appeal was not commenced within time and there has been no application for an extension of time. On the expiry of the time for appealing, the respondent had a vested right to retain the judgment unless an application for an extension were granted.9
26 Secondly, the master found, in effect, that the respondent was seeking the documents for a proper purpose.10 Although the appellants' first, sixth and eighth arguments contend that the respondent is or will misuse the information obtained and/or is acting for a collateral purpose, Mr Larussa's affidavit is vague and lacking in any detail on this subject, and provides no satisfactory evidence to support the appellants' submissions.
27 Thirdly, as to the contention that the appeal would be rendered nugatory if a stay were not granted:
(a) the appeal would not be rendered entirely nugatory insofar as restorative orders could be made following a successful appeal requiring the return of any copies of the documents;
(b) there is no cogent evidence of any potential misuse of the documents in the meantime;
(c) whilst the respondent will see the documents in her (alleged) capacity as administratrix, even if letters of administration were revoked following proof of the informal will, the respondent is the co-executor of that will and there is no basis for inferring that she would not be entitled to see the documents in that capacity;
(d) moreover, and subject to the question of privilege referred to below, whilst the documents relate to a family trust, there is no cogent evidence that they have any particular character of confidentiality as against the respondent. Whilst the appellants' submissions were to the effect that the 'parties' (presumably Mr Tony Larussa and the respondent, and not the parties to this appeal) have been estranged for 24 years, there was no evidence to that effect and in any event, on its own that would not be sufficient in the circumstances to warrant the imposition of a stay.
28 Fourthly, as to the merits, the appellants have not filed an appellants' case, and accordingly any arguments they may have that the master was in error have not been exposed to scrutiny. Whilst the appellants contend that there was no authority on the point decided by the master, that point alone is insufficient to ground an assertion that there was some arguable error in the reasoning which led the master to the conclusion that he reached. As to the allegation that there was 'no residential [sic - residual] benefit flowing to the estate', the submissions did not seek to explain why the master erred in concluding, in effect, that the estate would have an interest in the debt owed by the Trust to the deceased as at the date of his death.
29 Fifthly, as to the complaint concerning hearsay evidence, hearsay evidence was admissible on an interlocutory application.11 There was no evidence before me that it was grounded impermissibly in some allegedly without prejudice conversation.
30 Sixthly, if there were cogent evidence that the documents would be immune from inspection on the grounds of legal professional privilege, a stay in respect of those documents might be ordered. However, Mr Larussa's affidavit is equivocal on the point. He merely says that a significant volume of documents 'may' attract professional privilege. Nor does the evidence of Mr Humd provide satisfactory evidence of a claim for legal professional privilege that could be availed of as against the respondent. Mr Humd says that he inspected 'several' documents, but he does not say which. He says that he was requested to confer and advise with 'several persons' whom he does not identify, other than to say that they included the deceased and Mr Tony Larussa. He does not depose that either of the appellants were the clients to whom advice was given. The appellants do not indicate why, if advice were given to the deceased, it would be privileged as against the administratrix of the deceased's estate or the co-executor of his will. Moreover, it could not safely be inferred from his evidence that any advice given was other than joint advice.
31 A further point potentially arises from his affidavit, but it is unnecessary to reach a concluded view on it. It is that Mr Humd makes it clear that he was a 'qualified legal executive', and the position would appear to be that a claim for legal professional privilege requires that the advice be of a lawyer admitted to practice.12 If, in substance, the advice were given by a lawyer admitted to practice somehow through the agency of Mr Humd, it might be expected that any claim to privilege would be made by the client of that lawyer claiming the privilege, or at least by that lawyer on behalf of that client.
32 Seventhly, on the question of prejudice to the respondent, the appeal time has expired and the respondent is entitled to the fruits of that judgment unless and until an application for an extension of time is granted. A stay would effectively deprive her of the fruits of that judgment, and that is a prejudice recognised by the law.
33 For these reasons I dismissed the appellants' application for a stay or suspension of Master Sanderson's orders.
1Carr v Larussa Pastoral Holdings Pty Ltd [2015] WASC 300 (primary reasons).
2 The background is taken from the primary reasons.
3 Primary reasons [12].
4 Primary reasons[20] - [23].
5 Primary reasons [6].
6 Affidavit of A Humd, sworn 11 September 2015.
7Hall v Hall [2007] WASCA 94 [7].
8Williamson v The Bendigo Adelaide Bank Ltd [No 2] [2012] WASCA 269 [5].
9Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480 - 481.
10 Primary reasons [12], [23].
11 O 37 r 6(2)(c) of the Rules.
12 See J D Heydon, Cross on Evidence (10th ed, 2015) [25245] and the cases there cited.
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