Levingston v Lola Levingston as Executrix of the Will of the Late Robert Ian Edwin Partridge
[2015] WASC 175
•20 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LEVINGSTON -v- LOLA LEVINGSTON AS EXECUTRIX OF THE WILL OF THE LATE ROBERT IAN EDWIN PARTRIDGE [2015] WASC 175
CORAM: ALLANSON J
HEARD: 12 MAY 2015
DELIVERED : 20 MAY 2015
FILE NO/S: CIV 1817 of 2010
BETWEEN: LOLA MAY LEVINGSTON
Plaintiff
AND
LOLA LEVINGSTON AS EXECUTRIX OF THE WILL OF THE LATE ROBERT IAN EDWIN PARTRIDGE
First DefendantRHYS CURJEL PARTRIDGE
Second Defendant
FILE NO/S :CIV 1818 of 2010
MATTER :Section 6 of the Inheritance (Family & Dependants Provision) Act 1972
The Estate of ROBERT IAN EDWIN PARTRIDGE late of 13 Australind Road, Australind, Western Australia, deceased Probate No 1204/09
BETWEEN :LOLA MAY LEVINGSTON
Plaintiff
AND
LOLA MAY LEVINGSTON AS EXECUTRIX OF THE WILL OF ROBERT IAN EDWIN PARTRIDGE
First DefendantRHYS CURJEL PARTRIDGE
Second Defendant
Catchwords:
Practice and procedure - Appeal against order of Registrar for separate trials - Turns on own facts
Legislation:
Family Provision Act 1972 (WA), s 6(1)
Rules of the Supreme Court 1971 (WA), O 1 r 4B(1), O 4A r 2, O 60A r 4, r 5
Result:
Application dismissed
Category: B
Representation:
CIV 1817 of 2010
Counsel:
Plaintiff: Mr M J McPhee
First Defendant : Mr P R MacMillan
Second Defendant : Mr P R MacMillan
Solicitors:
Plaintiff: M J McPhee Barrister & Solicitors
First Defendant : Slater & Gordon Lawyers
Second Defendant : Slater & Gordon Lawyers
CIV 1818 of 2010
Counsel:
Plaintiff: Mr M J McPhee
First Defendant : Mr P R MacMillan
Second Defendant : Mr P R MacMillan
Solicitors:
Plaintiff: M J McPhee Barrister & Solicitors
First Defendant : Slater & Gordon Lawyers
Second Defendant : Slater & Gordon Lawyers
Case(s) referred to in judgment(s):
Andrew John Saker (As Liquidator of Creative Land Management Australia Pty Ltd (In Liquidation)) v Creative Land Management Pty Ltd [2000] WASC 44
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Norilya Minerals Pty Ltd v Easterday [2009] WASC 191
Waddingham v Burke as Executor of the Will of Graham Scott Waddingham [2015] WASC 65
ALLANSON J:
Procedural History
This application relates to two matters between the same parties: CIV 1817 of 2010 and CIV 1818 of 2010. On 6 June 2014, the plaintiff in both actions applied for orders that they be consolidated, alternatively they be tried at the same time or sequentially, with directions relating to the use of evidence in both actions. On 17 June 2014, a registrar dismissed the application.
The plaintiff appealed from that decision. On 15 October 2014, the Acting Master made orders for the entry of each matter for trial. The orders in CIV 1818 of 2010 included:
2.Unless otherwise ordered, the trial take place before the same Judge hearing the trial in CIV 1817 of 2010.
3.The hearing of the appeal of the decision of Registrar Whitby on 3rd September 2014 be adjourned to a date allocated by the trial Judge.
These matters were recently allocated to me for trial. Before further directions for trial could be made, the appeal had to be determined. As an appeal from a case management decision of a registrar, the appeal is a rehearing: see Rules of the Supreme Court 1971 (WA) O 60A r 4, r 5.
The appeal should be dismissed, for the reasons set out below.
The application to consolidate
At this stage, it is, realistically, too late to consider consolidation and the application proceeded as one for an order that the actions be heard together or sequentially. While the rules do not specifically provide for such an application, they have been regarded as falling within the court's power to regulate its own procedures: see, for example, Norilya Minerals Pty Ltd v Easterday [2009] WASC 191 [65]. And the court has power under O 4A r 2 of the Rules of the Supreme Court to make any procedural direction that in the court's opinion it is just to make to facilitate the attainment of the objectives of case management set out in O 1 r 4B(1). Those objectives include:
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business at a cost affordable by parties.
The types of factors to be taken into account on an application for a consolidation order were set out by Master Sanderson in Andrew John Saker (As Liquidator of Creative Land Management Australia Pty Ltd (In Liquidation)) v Creative Land Management Pty Ltd [2000] WASC 44 [2], and in my view remain a useful guide:
1.are there common questions of law or fact, or a common transaction or series of transactions, of sufficient importance which render it desirable that the whole of the matters should be disposed of at the same time;
2.is it convenient that the actions be consolidated in order to avoid a multiplicity of actions and ensure savings of time and costs;
3.is the court satisfied that the consolidation is unlikely to result in unfairness to any party, or to prejudice a party's ability to conduct their case;
4.will the consolidation be conducive to a just resolution of the issues between the parties;
5.the court should have regard to any relevant practical matters which may make it inexpedient to consolidate the proceedings.
The two actions
The action CIV 1817 of 2010 was commenced by writ filed 2 June 2010. The plaintiff claims:
1.She was the de facto partner of the late Robert Ian Partridge, who died in 2008.
2.Before his death, the deceased and the plaintiff had cohabited for about 12 years.
3.In April 2005, the deceased and the plaintiff agreed to make 'mutually supporting' wills and testamentary dispositions. The terms of that agreement were:
(a) the deceased would live in a property owned by the plaintiff for the remainder of his life;
(b) the deceased agreed to leave his personal estate to the plaintiff.
4.From 15 April 2005, the deceased lived in the plaintiff's home.
5.The deceased did not leave a will in favour of the plaintiff.
6.The second defendant (the son of the deceased, and the beneficiary under his will) has failed to acknowledge any trust in the plaintiff's favour.
The plaintiff claims relief under the agreement, including as to the construction of the agreement. In short, the plaintiff claims that it included both the real and personal property owned by the deceased. Alternatively, the plaintiff makes the following claims:
(a)that the second defendant is estopped from denying any enforceable agreement in her favour;
(b)the circumstances create a resulting trust in her favour over the deceased's entire estate, alternatively his personal property only;
(c)the circumstances create a constructive trust in her favour as to the entire estate, alternatively the personal property of the deceased.
These pleas require consideration of the conduct of the deceased, including agreements between a company associated with him (Ian Partridge Pty Ltd) and a trust controlled by him (the Royston Trust) with a company associated with the plaintiff (Levgiles Developments Pty Ltd). They also require consideration of statements made in his lifetime.
The second defendant denies the claim.
Action CIV 1818 of 2010 was commenced by originating summons, also filed on to June 2010. In it, the plaintiff claims as the de facto wife of the deceased and seeks an order pursuant to s 6 (1) of the Family Provision Act 1972 (WA). It is not necessary, for the purposes of this decision, to consider in any detail the principles relating to applications under the Act. They are summarised in Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127, and recently by Mitchell J in Waddingham v Burke as Executor of the Will of Graham Scott Waddingham [2015] WASC 65 [56] ‑ [78].
For present purposes, it is sufficient to observe that the family provision claim will require the court to determine whether the disposition of the deceased's estate effected by his will is not such as to make adequate provision from his estate for the proper maintenance, support, education, or advancement in life of the plaintiff. This will require the court to examine the totality of the relationship between the plaintiff and the deceased. The court will also need to have regard to:
(a)the totality of the relationship between the deceased and the second defendant, as the beneficiary of the deceased's will; and
(b)the financial and personal circumstances of the second defendant.
In considering the plaintiff's claim, the court will also have regard to her own capacity to provide for her needs, and to the assets of the estate.
Consideration
The plaintiff's primary argument is that, having regard to the extent of overlap in the issues to be determined in each action, an order for the matters to be heard together or sequentially would avoid unnecessary duplication and lead, ultimately, to a saving in both time and cost. The plaintiff submits that each action requires the court to consider the whole of the relationship between the parties, in determining whether they intended to create legal relations in the claimed agreement, in determining the issues arising out of the claims in estoppel and trust, and in determining the family provision claim. Counsel for the plaintiff included as part of his submissions a table of the issues in the two actions, and handed up an analysis of the evidence filed to date to show the extensive overlap. I accept his submission that there is a large degree of overlap between the issues, and the evidence to be led by the parties, in the two claims.
I am not satisfied, however, that the proposed directions would result in the most efficient and cost effective resolution of the actions.
First, the decision on the claims in CIV 1817 of 2010 will determine the size and nature of the estate of the deceased that might be subject to orders under the Family Provision Act. If determined wholly in favour of the plaintiff, it would make the proceedings in CIV 1818 of 2010, and the costs incurred in preparing and presenting the evidence on that claim, unnecessary. Even if the plaintiff was only partly successful, the decision would affect her financial position, and her capacity to provide for her own needs.
Second, while I accept there is overlap in issues in the two actions, I do not believe the overlap is as substantial as the plaintiff contends. In part, this is a matter of relevant times. The question under s 6(1) of the Family Provision Act - whether the plaintiff has been left without 'adequate' provision for her 'proper' maintenance, support, education or advancement in life - must be formulated and determined as at the date of death of the deceased. The questions under the statute also require consideration of all material facts that existed at the date of death, whether the deceased knew of them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts. These factual issues are likely to go substantially beyond those in CIV 1817 of 2010.
Third, the family provision claim requires consideration of the personal and financial position of the second defendant, as the beneficiary of the estate. If these matters are relevant in CIV 1817 of 2010, they are not pleaded.
Finally, the plaintiff recognises that CIV 1817 of 2010 must be determined before the parties can properly address the statutory claim, and proposes that the primary submissions in that action will be deferred until a decision is made on the contract, estoppel, and trust points. There could, of course, be an appeal in relation to that decision. In my opinion, it would be unsatisfactory to split the case in that way, possibly for an extended time. The alternative, requiring the parties to address on alternative and hypothetical bases, is equally unsatisfactory.
For these reasons, I dismiss the appeal.
The trial in CIV 1817 of 2010 will proceed. Whether I should be the trial judge for the second action (should it proceed) will have to be determined in the light of the findings made at trial, and the extent to which a risk of apprehended bias might arise.
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