Miller v Miller - [2017] SASC 37

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Preliminary Issue)
MILLER v MILLER
[2017] SASC 37
Judgment of The Honourable Justice Blue
22 March 2017
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SERVICE AND AUTHORITY OF SOLICITORS
SUCCESSION - ADMINISTRATION OF ESTATE
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION
Preliminary issue in action for provision out of estate under Inheritance (Family Provision) Act 1972.
Probate of John Miller’s Will was granted on 24 February 2015. On 21 August 2015, the action was instituted by the plaintiff against the first defendant, the executor and a beneficiary, and the second defendant, a beneficiary. On 24 August 2015, the initiating documents were delivered to Adelta Legal who had been acting for the executor and in related proceedings by her against the plaintiff for misappropriation.
The defendants contend that personal service was not effected on 24 August 2015 and the application was therefore made outside the 6 month time limit, with the consequence that previous distributions of assets of the estate are to be ignored.
The plaintiff contends that Adelta Legal had instructions to accept service of the application on behalf of the executor, which the defendants deny. The defendants contend that in any event service was not effected in accordance with rule 67 of the Supreme Court Civil Rules 2006 (SA) and the delivery of the documents to Adelta Legal therefore did not constitute good service.
Held:
1. Adelta Legal had authority from the executor as at 24 August 2015 to accept service of the plaintiff’s Inheritance Act application (at [86]-[88]).
2. The absence of an acknowledgement issued by Adelta Legal that it had accepted service on behalf of the executor under rule 67 of the Supreme Court Civil Rules 2006 prevents the delivery of the initiating documents to Adelta Legal being effective service (at [95]).
3. Preliminary issue determining that application under Inheritance Act not served on first defendant within six months of grant of probate (at [97]).
Inheritance (Family Provision) Act 1972 (SA) s 7, s 8, s 14; Supreme Court Civil Rules 2006 (SA) r 35, r 65, r 66, r 67, r 314; Legal Practitioners Act 1981 (SA), referred to.
Blunden v Blunden & Anor [2008] SASC 286; Yancic v Yancic & Anor [2010] SASC 335, discussed.
Carter v Brine [2015] SASC 204; Casaclang v WealthSure Pty Ltd (2015) 238 FCR 55; Commonwealth v Verwayen (1990) 170 CLR 394.; Egyptian International Foreign Trade Company v Soplex Wholesale Supplies Ltd [1985] 2 Lloyds Rep 36; Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146; Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) (2013) 209 FCR 368; Rama Corporation Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147; Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR 269, considered.

MILLER v MILLER
[2017] SASC 37
Civil

BLUE J: This is a preliminary issue in an action by the plaintiff Colin Miller (Colin) for provision out of an estate for his maintenance, education or advancement in life pursuant to the Inheritance (Family Provision) Act 1972 (SA) (the Inheritance Act).
The preliminary issue is whether the application under the Inheritance Act was served on the first defendant Cheryl Miller (Cheryl) within six months of the date of grant of probate of the estate of John Miller.
Probate of the last Will of the late John Miller, who died on 1 December 2014, was granted by this Court to Cheryl on 24 February 2015. John left his estate equally to Cheryl and the second defendant Robert Miller (Robert). On 21 August 2015 this action was instituted.
On 24 August 2015 the initiating documents were delivered by Colin’s solicitor to the offices of Adelta Legal, solicitors who had been acting for Cheryl as executor of the estate and in related proceedings by Cheryl as executor of the estate and of her mother’s estate against Colin for misappropriation. The issue is whether this amounted to personal service on Cheryl within the meaning of the Supreme Court Civil Rules 2006 (SA) (the Rules).
Subsection 8(1) of the Inheritance Act prima facie requires an application for provision out of an estate under the Inheritance Act to be made within six months of the grant of probate. Subsection 8(6) deems an application to be made when the summons is served on the administrator of the estate. While subsection 8(2) empowers the Court to extend time for the making of an application, it is common ground that pursuant to subsection 8(5) any distributions made before the extension of time application cannot be disturbed.
As at 1 December 2014 the net assets of the estate were valued in the statement of assets and liabilities at $665,930.[1] The net assets comprised $541,399 cash in bank accounts,[2] $37,031 in company shares and a house property at Kimba valued by the Valuer-General at $87,500. Between April and June 2015, Cheryl distributed the company shares and $555,000 (being all of the cash except about $1,800) to Robert and herself as beneficiaries.
[1] All dollar figures herein are rounded to the nearest whole dollar.
[2] $548,049 in bank accounts less $6,650 funeral expenses.
It is common ground that, if service was effected on 24 August 2015, this Court has power under subsection 14(3) of the Inheritance Act to order that provision be made out of the entire estate in favour of Colin notwithstanding the distributions made before 24 August 2015. It is also common ground that, if service was not effected on 24 August 2015, this Court only has power to order that provision be made out of the portion of the estate remaining undistributed as at 24 August 2015. For this reason, the question whether service was effected on 24 August 2015 has very significant practical consequences on the maximum relief which could be obtained by Colin.
Colin’s case is that Cheryl conferred authority on Adelta Legal to accept service of his Inheritance Act application and the delivery of the initiating documents to Adelta Legal was effective service for the purpose of subsection 8(6) of the Inheritance Act.
Cheryl and Robert deny that Cheryl conferred such authority on Adelta Legal. They contend that in any event service was not effective because Adelta Legal did not issue an acknowledgement that it accepted service on Cheryl’s behalf as required by rule 67(1)(c) of the Rules. Colin denies that issue of an acknowledgement is essential provided that Adelta Legal in fact had authority to accept service on behalf of Cheryl.
Determination of the preliminary issue requires determination of two sub-issues:
1.Did Adelta Legal have authority as at 24 August 2015 to accept on behalf of Cheryl service of Colin’s Inheritance Act application?
2.If yes, does the fact that Adelta Legal did not issue an acknowledgement that it accepted service on Cheryl’s behalf under rule 67(1)(c) prevent the delivery of the initiating documents to Adelta Legal being effective service?
Background
John and his wife Elsie Miller (Elsie) had three children, being Cheryl, Robert and Colin.
In 2011 Colin made an application to the Guardianship Board that he be appointed guardian or administrator of the affairs of John and Elsie. Cheryl opposed the application and contended that she should be appointed instead. Ultimately the Public Trustee was appointed administrator.
In April 2013 Elsie died. Elsie appointed Cheryl as her executor and left her entire estate to John. Cheryl retained Lynch Meyer (specifically Melissa Yule) to act for her in relation to the estate including to obtain probate.
On 15 May 2013 Lynch Meyer wrote to Cheryl setting out the terms of engagement. The letter included the following passage:
The Work
You have asked us to act for you in applying for probate and assisting in the administration of your mother’s estate. We note that it is likely there may be a dispute in the matter involving your brother Colin. If this occurs, we will advise you separately regarding those costs.
In August 2013 probate was granted to Cheryl.
Melissa Yule subsequently moved from Lynch Meyer to Adelta Legal.
In June 2014 Cheryl instructed Adelta Legal (specifically Ms Yule) to institute an action against Colin for fraudulent misappropriation of Elsie’s assets.
On 30 June 2014 Ms Yule on behalf of Cheryl in her capacity as executor of Elsie’s estate instituted action 807 of 2014 in this Court against Colin for misappropriation of Elsie’s assets (the 2014 action).
On 28 November 2014 an order was made in the 2014 action for presumptive service of the summons and statement of claim on Colin by advertisement in The Australian and forwarding the documents to an email address in Colin’s name.
On 1 December 2014 John died. Colin, who lives in Victoria, instructed Sandy Rizkallah of Armstrong Legal in Melbourne to act for him in relation to John’s estate.
On 3 December 2014 Armstrong Legal on behalf of Colin wrote to Adelta Legal on behalf of Cheryl requesting a copy of John’s Will and details of the assets and liabilities of John’s estate.
On 3 December 2014 Ms Yule telephoned Cheryl and informed her that Colin’s solicitor had written to her requesting a copy of John’s Will and details of the assets and liabilities of John’s estate and that Colin intended to make a claim under the Inheritance Act against the estate. Cheryl instructed Ms Yule to act as solicitor for the estate. Cheryl instructed Ms Yule not to provide the requested information at that stage because her father had only just died and she considered such a swift request to be callous.
On 4 December 2014 Adelta Legal sent an email to Armstrong Legal in relation to John’s estate. Ms Yule acknowledged receipt of Ms Rizkallah’s letter and said:
I confirm that I act for Cheryl Miller, the executor of the estate.
As the late Mr Miller died only on Monday this week, we are not yet in a position to provide you with the information that you seek.
On 24 February 2015 probate of John’s Will was granted in favour of Cheryl.
After the grant of probate, Ms Yule dealt with the Public Trustee and arranged for the Public Trustee to transfer the funds it was holding on behalf of John’s and Elsie’s estates to Adelta Legal’s trust account.
On 26 February 2015 Adelta Legal wrote to Armstrong Legal in relation to Elsie’s estate. Ms Yule said:
You will see from the above heading that Elsie Miller, the wife of John Miller is also deceased. We act for the executor of that estate. The executor has issued proceedings against Colin Miller in that matter, claiming reimbursement of monies appropriated by him for his own use from Elsie’s assets during her lifetime. We have a similar claim to make with respect to the assets of John Miller.
We were unable to serve Colin Miller in the usual course with respect to Elsie Miller as he evaded personal service. We obtained an order from the Supreme Court for substituted service by way of email.
As you act for Colin Miller with respect to his father’s estate, we should be grateful if you would advise whether you have instructions to accept service of proceedings on his behalf in relation to the John Miller estate and also with respect to the Elsie Miller estate.
On 11 March 2015 at a directions hearing in the 2014 action, Ms Yule informed the Master that Cheryl intended to file a second statement of claim making claims in her capacity as executor of the estates of both Elsie and John and sought an order for presumptive service of the second statement of claim. That order was made.
On 16 March 2015 Ms Rizkallah resigned from her employment with Armstrong Legal. On that day, Armstrong Legal wrote to Adelta Legal saying that it did not hold instructions to accept service with regards to the misappropriation matter.
On 22 March 2015 Ms Rizkallah commenced employment with Marshalls + Dent Lawyers. Colin subsequently instructed Marshalls + Dent to accept service of the summons in the 2014 action. Marshalls + Dent instructed O’Loughlins Lawyers to act as South Australian agents and to file an address for service.
On 25 March 2015 Adelta Legal received two cheques from the Public Trustee: one cheque for $294,915, being the balance of funds held in Elsie’s estate; and the other cheque for $261,894, being the balance of funds held in John’s estate.
On 21 April 2015 Adelta Legal on behalf of Cheryl in her capacity as executor of Elsie’s estate and executor of John’s estate filed a second statement of claim in the 2014 action against Colin for misappropriation of assets of both Elsie and John.
On 27 April 2015 Marshalls + Dent wrote to Adelta Legal saying that it had instructions to accept service of all documents pertaining to the summons in the 2014 action.
On 27 April 2015 Cheryl as executor of John’s estate distributed $555,000 to Robert and herself as beneficiaries equally.
On 5 May 2015 O’Loughlins filed an address for service in the 2014 action.
On 8 May 2015 Marshalls + Dent wrote to Adelta Legal inviting them to amend the second statement of claim in the 2014 action to remedy several alleged deficiencies. Ms Rizkallah referred to the findings of Bentleys Accountants and the timing of the institution of the action and concluded by saying:
We suspect this proceeding is being brought for a collateral purpose which relates to the foreshadowed family provision claim against the Estate of John Miller.
Ms Yule informed Cheryl of this suspicion.
On 18 June 2015 Adelta Legal on behalf of Cheryl in her capacity as executor of Elsie’s estate and John’s estate filed a third statement of claim in the 2014 action.
On 23 June 2015 Marshalls + Dent wrote to Adelta Legal in relation to John’s estate. Ms Rizkallah said:
We refer to the above matter and advise that we are in the process of issuing proceedings. As you would be aware, our client as the Plaintiff is required to file and serve an affidavit pursuant to Rule 314(2) of the Inheritance Act (Family Provision) Act 1972, setting out to the best of his knowledge, any potential claimant on the estate. We consider that your client’s children are potential claimants, and kindly request for their names and current addresses to be provided to us at your earliest convenience.
On 24 June 2015 Ms Yule telephoned Cheryl and informed her that Colin was issuing proceedings to claim inheritance from John’s estate.
On 30 June 2015 Adelta Legal wrote to Cheryl saying that, due to changes to the Legal Practitioners Act 1981 (SA), it was necessary for Ms Yule to revise her retainer agreement with Cheryl. Ms Yule attached a letter dated 30 June 2015 which included the following passages:
We refer to previous correspondence.
We confirm that we are able to accept your instructions to act for you in the above matter.
Before commencing work, we will set out in this letter the general terms on which we accept instructions and on which we will be acting for you.
1      Scope of the Legal Work
1.1     You have instructed us to assist in the administration of the estates of Elsie and John Miller and in particular with respect to the litigation involving Colin Miller.
1.2     We will accept instructions from you and any person that you confirm represents you and may give us instructions on your behalf.
On 29 July 2015 at a directions hearing in the 2014 action, Colin’s counsel informed the Master that Colin had prepared an application and supporting affidavit seeking to have the action dismissed but it could not yet be lodged because Colin was overseas. The foreshadowed application was listed for argument on 14 September 2015. Ms Yule advised Cheryl that it was preferable that the statement of claim be amended to meet Colin’s objections and avoid argument.
On 20 August 2015 Ms Rizkallah swore an affidavit in Melbourne in support of an application by Colin for provision out of John’s estate for his maintenance, education or advancement in life pursuant to the Inheritance Act, saying that affidavits by Colin in compliance with the Rules were being finalised and would be filed and served as soon as practicable.
On 20 August 2015 Arkin Kaman of Marshalls + Dent telephoned Ms Yule. He told her that he required the statement of assets and liabilities and Ms Yule said that she would provide it that day. He asked for details of potential claimants and Ms Yule said that she may or may not be able to provide it that day. He asked her to let him know by the end of the day as he needed to file an affidavit on behalf of Colin outlining the potential claimants and if she was unable to do so he would have to let the Court know that would be provided at a later date. Ms Yule agreed to do so.
Ms Yule telephoned Cheryl and asked her for the correct addresses for her children for service by Colin’s solicitors of the requisite notices in connection with Colin’s Inheritance Act action as they were potential claimants. Cheryl told Ms Yule to tell Colin’s solicitors that their addresses were to be care of Adelta Legal. Ms Yule conveyed this to Marshalls + Dent.
On Friday 21 August 2015 Ms Yule sent an email to Mr Kaman in relation to John’s estate saying:
We attach a copy of the statement of assets and liabilities lodged with the application for probate in this matter.
I am instructed that the addresses for each of Cheryl Miller’s children are to be c/- this office.
On 21 August 2015 O’Loughlins Lawyers as agents for Marshalls + Dent on behalf of Colin instituted this action by filing the summons, statement of claim and affidavit of Ms Rizkallah.
On 24 August 2015 Colin swore an affidavit in Melbourne in support of the application. Colin swore a second affidavit deposing to the names and addresses of potential eligible claimants pursuant to rule 314(2) of the Rules. Mr Kaman transmitted Colin’s two affidavits by email to Mr Ryder of O’Loughlin’s Lawyers in Adelaide. Mr Ryder swore an affidavit exhibiting the email copy of Colin’s two affidavits and caused it to be filed.
On 24 August 2015 at about 1.00 pm Mr Ryder attended at the offices of Adelta Legal and spoke to the receptionist, Dione. He gave to her a copy of the summons, statement of claim and Ms Rizkallah’s affidavit, together with a letter addressed to Adelta Legal, attention Ms Yule, saying that he enclosed by way of service copies of the three documents and asked for confirmation that service of the proceedings was accepted. I infer that Mr Ryder informed Dione that he was serving the three documents.
On 24 August 2015 at about 4.40 pm Mr Ryder returned to the offices of Adelta Legal and spoke to the legal assistant Sandra Castle. He gave to her a copy of his affidavit sworn on that day together with a letter addressed to Adelta Legal, attention Ms Yule, saying that he enclosed by way of service his affidavit filed on that day.
On 25 August 2015 Ms Yule was given the documents delivered by Mr Ryder. Ms Yule was not at work on the previous day and did not become aware that the documents had been delivered until 25 August.
Subsequently,[3] Ms Yule told Cheryl that Colin had put in a claim under the Inheritance Act, said that there was a very long affidavit by Colin, and asked her whether she wanted it sent to her by email or whether she preferred it posted. Cheryl said “I don’t want to look at it, don’t give it to me now” because they were then in the middle of the pleading debate in the 2014 action.
[3] I address below the precise date of this conversation and whether it occurred on 25, 26 or 27 August 2015, although nothing turns on the precise date.

On 25 August 2015 Mr Kaman caused to be posted letters addressed to each of Cheryl’s four children care of Adelta Legal enclosing notices of a potential claim under the Inheritance Act.
On 27 August 2015 Mr Ryder sent an email to Ms Yule attaching, by way of service, scanned copies of Colin’s two affidavits, the originals of which had been filed in Court on that day.
On 27 August 2015 Cheryl met with Ms Yule and Alex Lazarevich, her barrister in the 2014 action. They discussed the strike out application by Colin and the preparation of a further version of the statement of claim.
From 4 to 14 September 2015 inclusive Ms Yule was absent from Adelta Legal travelling to and attending a conference in Tuscany. Ms Yule left Cheryl’s matters in the care of Rebecca Field.
On 7 September 2015 Cheryl spoke to RSA Law about the possibility of their taking over from Adelta Legal as her solicitors.
On 9 September 2015 Cheryl had a telephone conversation with Ms Field. Cheryl asked Ms Field to email to her a copy of Colin’s Inheritance Act action. Ms Field sent an email to Cheryl attaching a copy of the documents filed in this action.
On 11 September 2015 Cheryl read the summons and statement of claim. She read the warning that, if a notice of address for service was not filed within 14 days and a defence was not filed within 28 days, orders might be made against her in her absence and without further notice. She spoke to Ms Field by telephone. She said that she noticed in the paperwork that “we are supposed to file a notice of address for service in Colin’s proceeding”. Ms Field said that there was time to deal with that, that Ms Yule would attend to that next week and that “it would be unprofessional of [Colin’s lawyers] to take any action given that they know we are acting in the matter”.
On 17 September 2015 Cheryl came to Adelaide, told Ms Yule that she had decided to instruct RSA Law to take over from Adelta Legal the conduct on her behalf of the 2014 action and this action, and met with RSA Law. On 29 September 2015, RSA Law filed a notice of address for service on behalf of Cheryl in the 2014 action and in this action.
On 15 October 2015 RSA Law on behalf of Cheryl filed a defence in this action. The defence pleaded various answers to the application on the merits but did not plead that the application was out of time.
On 9 September 2016 RSA Law on behalf of Cheryl filed a second defence in this action. The second defence introduced a new plea that the application was out of time because the summons was not served within six months from the grant of probate.
The evidence and findings
Colin called Ms Rizkallah, Mr Kaman, Mr Ryder and Ms Brooks, who primarily gave their evidence-in-chief in affidavit form. Colin called Ms Yule to give evidence under subpoena. Ms Yule’s evidence was entirely oral.
Cheryl gave evidence and called Ms Field to give evidence under subpoena. Their evidence was entirely oral.
Most of the evidence was non-controversial. Each of Ms Rizkallah, Mr Kaman, Mr Ryder and Ms Yule gave evidence that Ms Yule was not asked at any material time by Colin’s solicitors whether she or Adelta Legal had instructions to accept service of the summons in this action and she did not tell them at any material time that she did or did not have such instructions. The topic was simply not discussed.
Ms Yule and Cheryl both gave evidence that the topic whether Ms Yule or Adelta Legal had instructions to accept service of the summons in this action simply was not discussed between them at any material time. It was put on behalf of Colin to each of them that Cheryl specifically gave such instructions and this was denied by each of them. I accept the evidence of Ms Yule and Cheryl that the topic of instructions to accept service of the summons was not discussed between them. There is no basis on which I could find otherwise.
There are three matters on which I make findings out of an abundance of caution although none of the issues I have to decide turn in any way on these findings.
Ms Yule and Cheryl both gave evidence that shortly after 24 August 2015 Ms Yule told Cheryl that Colin had made a claim under the Inheritance Act, and asked her whether she wanted the documents sent by email or post and Cheryl asked her not to send them at that time. Ms Yule could not recall whether this was a telephone conversation on 25 or 26 August or whether it occurred during the meeting with Mr Lazarevich on 27 August 2015. Cheryl gave evidence that it occurred at the meeting on 27 August 2015. However, I find that this conversation took place by telephone on 25 August 2015. First, it is inherently likely that Ms Yule informed Cheryl of the institution of the action as soon as possible after Ms Yule learned of it on 25 August 2015. Secondly, if the conversation had not occurred before the meeting on 27 August, it is inherently likely that Ms Yule would have brought the documents with her to the meeting and would not have asked Cheryl whether she preferred that they be sent by email or post. Thirdly, the meeting had been scheduled to discuss the 2014 action and there was no reason for Ms Yule to wait for the meeting to inform Cheryl of this action. Having made this finding, nothing turns on it because on any view Cheryl did not learn of the action until after the expiry of the six-month limitation period on 24 August 2015.
Ms Yule gave evidence that she did not recall turning her mind in August 2015 to the question whether she had instructions to accept service of the summons in Colin’s Inheritance Act proceeding. I find that Ms Yule’s state of mind in August 2015 was that acceptance of service was within the scope of her general authority from Cheryl. If she had not believed this, I have no doubt that she would have raised the topic with Cheryl when she informed her that she had received the summons: she would not have left the topic in limbo for a fortnight without taking any action to resolve the question. Having made this finding, nothing turns on it because the terms of the authority conferred by Cheryl on Ms Yule are to be determined objectively by reference to external facts and circumstances and not by reference to Ms Yule’s state of mind.
Likewise, I find that Cheryl’s state of mind in August 2015 was that acceptance of service of Colin’s Inheritance Act application was within the scope of Ms Yule’s general authority from Cheryl. When informed of the fact that Colin had instituted the proceedings, Cheryl proceeded on the basis that they had been served and raised no query in relation to this topic. On the contrary, on 11 September 2015 when she read the summons she saw the warning that, if a notice of address for service was not filed within 14 days and a defence was not filed within 28 days orders might be made against her in her absence, and expressed concern to Ms Field about the urgency of the need to file these documents. That concern is consistent only with her believing that the documents had been served on Adelta Legal. Having made this finding, nothing turns on it because the terms of the authority conferred by Cheryl on Ms Yule are to be determined objectively by reference to external facts and circumstances and not by reference to Cheryl’s state of mind.
I note for completeness that Ms Yule and Cheryl were both asked by Cheryl’s counsel whether Cheryl gave instructions to Ms Yule to accept service of an Inheritance Act proceeding commenced by Colin and they each said no; but these questions were directed to specific instructions to accept service as opposed to the scope of Ms Yule’s general authority.
Authority to accept service
Colin contends that Adelta Legal had actual authority to accept service of Inheritance Act application by Colin. Colin contends that specific authority was conferred by Cheryl on Adelta Legal to accept service. In the alternative, Colin contends that acceptance of service was within the scope of the general or implied authority of Adelta Legal to act on behalf of John’s estate. Colin contends in the alternative that Adelta Legal had ostensible authority to accept service.
Cheryl takes issue with each of Colin’s contentions.
Ostensible authority
Ostensible authority is founded on, and is a particular application of, the more general principle of estoppel and more particularly estoppel by representation.[4]
[4] Rama Corporation Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147 at 149-150 per Slade J; Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 494-495 per Willmer LJ, 498 per Pearson LJ and 503 per Diplock LJ; Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 200 per Dawson J and 211-212 per Gaudron J.
The elements of ostensible authority are:
1.a representation by words or conduct by the putative principal to the third party that the putative agent is authorised to undertake the act in question on behalf of the putative principal;
2.reliance by the third party on that representation;
3.that the third party would suffer detriment if the putative principal were not held to the representation; and
4.that it would be unjust if the putative principal were entitled to resile from the representation.[5]
[5] See Rama Corporation Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147 at 149-150 per Slade J; Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 498 per Pearson LJ and 503 per Diplock LJ; Egyptian International Foreign Trade Company v Soplex Wholesale Supplies Ltd (‘The Raffaella’) [1985] 2 Lloyds Rep 36 at 41 per Browne-Wilkinson LJ; Tsangaris v Gaymark Investments Pty Ltd (1986) 82 FLR 269 at 281-282 per Maurice J.
In this case, while Colin contends that there was ostensible authority, he does not identify a representation by or on behalf of Cheryl to him or his solicitors that Adelta Legal had authority to accept service of an Inheritance Act application by Colin. In any event, no evidence was adduced by Colin that he or his solicitors relied on any such representation. Neither Ms Rizkallah, Mr Kaman nor Mr Ryder gave evidence of any such reliance. There is no basis on which I could make a finding of ostensible authority.
For the sake of completeness, I note that Colin does not rely on Verwayen estoppel.[6]
[6] Commonwealth v Verwayen (1990) 170 CLR 394.
Actual authority
Specific express authority
Both Cheryl and Ms Yule denied that Cheryl conferred on Adelta Legal specific express authority to accept service of an Inheritance Act application by Colin.
Although Colin invites me to find that such authority was conferred, there is no basis for me to do so.
General or implied authority
Colin contends that Adelta Legal had general authority from Cheryl to act on behalf of the estate in respect of legal proceedings and as a matter of construction or implication it was within the scope of that general authority for Adelta Legal to accept service of Colin’s Inheritance Act application.
It is common ground that the terms of an agency are, like the terms of a contract, determined objectively by reference to the words and conduct of the principal and agent rather than by reference to their unexpressed subjective beliefs and intentions.[7]
[7] Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 503-504 per Diplock LJ; Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq) [2013] FCAFC 5, (2013) 209 FCR 368 at [70] per Foster, Barker and Griffiths JJ; Casaclang v WealthSure Pty Ltd [2015] FCA 761, (2015) 238 FCR 55 at [192] per Buchanan J; Carter v Brine [2015] SASC 204 at [299] per Blue J.
On 3 December 2014 Ms Yule and Cheryl had a telephone conversation. Ms Yule informed Cheryl that Colin intended to make a claim under the Inheritance Act against John’s estate. Cheryl instructed Ms Yule to act as solicitor for the estate. Cheryl instructed Ms Yule not to provide the requested information at that stage. Although evidence was not expressly given about it, I infer that Cheryl informed Ms Yule that John had died on 1 December 2014, that she was the executor under John’s Will and that John had left all of his assets to Robert and herself. I draw this inference because otherwise the conversation about which evidence was given would have no context and make little sense. This conversation took place against the background that Ms Yule had previously obtained probate in respect of Elsie’s estate; both Ms Yule and Cheryl knew that probate would need to be obtained in respect of John’s estate; Ms Yule on behalf of Cheryl as executor of Elsie’s estate had instituted the 2014 action; and it was logical that Cheryl as executor of John’s estate should be joined as a co-plaintiff in that action.
I find that on 3 December 2014 Cheryl conferred on Adelta Legal a general authority to act as solicitors for her as executor of John’s estate in relation to the obtaining of probate, suing Colin in the 2014 action and defending Colin’s foreshadowed Inheritance Act application. For reasons that will become apparent, it is not necessary to decide whether that authority extended to accepting service of Colin’s foreshadowed Inheritance Act application.
By 26 February 2015 following the grant of probate of John’s Will on 25 February 2015, Cheryl had instructed Adelta Legal to join herself as executor of John’s estate as a co-plaintiff in the 2014 action (as evidenced by Adelta Legal’s letter to Marshalls + Dent dated 26 February 2015).
On 23 June 2015 Marshalls + Dent Lawyers wrote to Adelta Legal advising that they were in the process of issuing an Inheritance Act action on behalf of Colin and requesting the names and current addresses of Cheryl’s children for the purpose of inclusion in the affidavit required to be filed with the initiating process. On 24 June 2015, Ms Yule telephoned Cheryl and informed her that Colin was issuing proceedings to claim inheritance from John’s estate. I infer that Cheryl confirmed that Adelta Legal were to act as solicitors for Cheryl as executor of John’s estate in relation to those proceedings.
On 30 June 2015, Adelta Legal wrote to Cheryl confirming its retainer by Cheryl as executor of John’s estate and Elsie’s estate. Under the heading “Scope of the Legal Work”, the letter confirmed:
You have instructed us to assist in the administration of the estates of Elsie and John Miller and in particular with respect to the litigation involving Colin Miller.
Colin contends that the reference to “the litigation involving Colin Miller” was a reference both to the 2014 action and to the Inheritance Act action referred to in Marshalls + Dent’s 23 June letter. Cheryl contends that it was a reference exclusively to the 2014 action.
The reference to “the litigation involving Colin Miller” should be construed as a reference to the 2014 action and the foreshadowed Inheritance Act action. First, Cheryl had already instructed Adelta Legal to act for her in relation to the foreshadowed Inheritance Act action on 3 December 2014 and Adelta Legal had been doing so since that time. Secondly, there was a clear interrelationship between the two actions. The Inheritance Act application could have been brought as a counterclaim in the 2014 action pursuant to rule 35 of the Rules (joining Robert as an additional defendant to the cross action) and arguably could have been the subject of a defence of set-off in the 2014 action. Conversely, the misappropriation claim the subject of the 2014 action could have been brought as a counterclaim in the foreshadowed Inheritance Act action. In addition, the conduct the subject of the misappropriation claim could have been raised by way of defence as disentitling conduct under subsection 7(3) of the Inheritance Act.
Adelta Legal had general authority to take steps in relation to the Inheritance Act application. As a matter of construction, in the particular circumstances of this case, that general authority included accepting service of the summons on behalf of Cheryl as executor. Adelta Legal had authority to accept service of documents generally in the 2014 action such that, if Colin had chosen to bring the Inheritance Act application by way of counterclaim in the 2014 action, Adelta Legal had authority to accept service of it. It makes no material difference to the scope of Adelta Legal’s authority whether Colin chose to bring the application in the form of a new action as opposed to a counterclaim in the existing action. It may be accepted that normally the mere fact that a solicitor is instructed to act for a client in relation to a dispute before the institution of proceedings does not entail that the solicitor is instructed to act for that client if proceedings are instituted or that the solicitor has instructions to accept service of the proceedings. However, in the present case it is clear that Adelta Legal was instructed to act for Cheryl as the executor party to the Inheritance Act application and, on their proper construction, those instructions extended to accepting service of the application.
On 20 August 2015, Mr Kaman asked Ms Yule for details of potential claimants for the purpose of the affidavit required by subrule 314(4) of the Rules, which requires service of notice on potential claimants within 14 days of commencement of an action under the Inheritance Act. Ms Yule was instructed by Cheryl to tell Colin’s solicitors that the children’s addresses were to be care of Adelta Legal. If, contrary to my conclusion above, it was not within the scope of Adelta Legal’s authority before this time to accept service of the Inheritance Act application, it was implied from Cheryl’s instructions concerning service of notices upon her children that Adelta Legal had authority to accept service of the application on her behalf as executor.
Cheryl relies on the decision of Bleby J in Blunden v Blunden.[8] In that case, the plaintiff sought an extension of time under the Inheritance Act to institute proceedings which had been required to be instituted and served by 8 July 2008. On 7 July 2008 the solicitors for the plaintiff delivered the summons to the solicitors who had been acting for the first defendant executor, who returned the summons the following day with a note saying that they did not have instructions to accept service of the proceedings. There were no extant proceedings on foot between the parties. By seeking an extension of time, the plaintiff accepted that the proceedings had not been served by 8 July 2008. Bleby J refused the application for an extension of time. In the course of his Honour’s reasons, Bleby J said that the plaintiff’s solicitors erroneously assumed that the defendant’s solicitors would accept service and the delivery of the summons on 7 July 2008 was not personal service on the first defendant. Given the issues in that case and the different factual circumstances, this authority is of no assistance.
[8] [2008] SASC 286.
Cheryl also relies on the decision of Master Burley in Yancic v Yancic.[9] In that case, the plaintiff on 16 September 2010 sought orders retrospectively dispensing with the requirement for personal service, permitting service of the summons on a solicitor as agent for the executor defendants and declaring that delivery of the summons to the solicitor on 20 August 2010 was effective service. On 20 August 2010, a process server had attended at the solicitor’s office, telling the solicitor that he was there to serve documents in relation to the defendants. The solicitor responded that he could not accept service of the documents because he did not have instructions to do so and the process server left with the documents. Shortly thereafter, the process server returned and told the solicitor that, if he was not prepared to accept service, he had instructions to leave the documents at reception. The solicitor reiterated that he did not have instructions to accept service and asked the process server to leave. The process server left the documents inside the front door and the solicitor picked them up and threw them into the street. The plaintiff conceded that the documents had not been served on 20 August 2010 and sought orders nunc pro tunc. Master Burley held that the retrospective orders should not be made. This authority is of no assistance.
[9] [2010] SASC 335.
Rule 67

Rules 62 to 65 of the Rules are specific rules for service on specific parties, namely bodies corporate, persons under a disability, partnerships/unincorporated associations and agents. Rule 65 provides:
65—Agent
(1)A document to be served on a person may, if the Court permits, be served on an agent of that person.
(2)A document served on an agent under this rule is taken to have been served on the principal.
Rule 66(1)(a) provides that, unless the Court otherwise orders, primary originating process must be served personally.
Rule 67 provides:
67—How personal service effected
(1)     Personal service of a document is effected if—
(a)     the document is given to, and accepted by, the person to be served; or
(b)     the person to be served is offered the document and, if he or she appears unwilling to accept it, is informed orally of the nature of the document; or
(c)     a solicitor accepts service of the document on behalf of the person to be served (whether the solicitor is served personally with the document or not) and issues an acknowledgment to that effect; or
(d)     the document is served in accordance with an agreement between the parties as to the manner of service.
(2)     Personal service of a document will be presumed if—
(a)     an answering document is filed in the Court or served on the party required to serve the document; or
(b)     it is established in some other way that the document and its contents have come to the attention of the person to be served.
Rule 67(1)(c) addresses circumstances in which service on a solicitor comprises personal service, namely when a solicitor accepts service of the document on behalf of the person to be served and the solicitor issues an acknowledgement of acceptance of service. In the present case, Adelta Legal did not issue to Marshalls + Dent, O’Loughlins or Colin an acknowledgement of acceptance of service. The mere fact that, as I have found, Adelta Legal had instructions to accept service does not bring the matter within rule 67(1)(c). Given the use of the verb “issues” in rule 67(1)(c) and the context in which the noun “acknowledgement” is used, it is likely that an acknowledgement within the meaning of the rule is required to be in writing, although no specific formal wording is required and the writing might be transmitted electronically such as by email or facsimile. It is not strictly necessary to decide this question because, even if an acknowledgement can be verbal, it must convey an acknowledgement by the solicitor that the solicitor has accepted service on behalf of (in this case) the defendant and in the present case no such acknowledgement was issued by Adelta Legal whether in writing or verbally. Colin does not contend that rule 67(1)(a) applies and in particular does not contend that the reference in that paragraph to “the person to be served” encompasses an agent of the person who has authority to accept service. The construction that paragraph (a) is confined to service on the person in question is confirmed by the reference in the chapeau to “personal” service, the specific reference in paragraph (c) to service on a solicitor (who is an agent for the person to be served), and the fact that rule 65 addresses service on an agent.
Colin contends that rule 67 is not a code identifying exclusively the circumstances in which personal service can be effected and does not exclude service on an agent who has actual authority to receive service of the document. The language of rule 67, however, suggests that personal service must be effected in one of the ways set out in the four paragraphs of subrule 67(1). If rule 67 is not a code, the requirement contained in paragraph (c) that a solicitor issue an acknowledgement of acceptance of service appears to be otiose. If the solicitor has instructions to accept service on behalf of the person to be served, there would be no need to include the requirement for issue of an acknowledgement of acceptance of service. The fact that that requirement is included suggests that it was considered that certainty as to the effectiveness of service is necessary. The fact that rule 65 addresses service on an agent and requires prior Court permission reinforces that rule 67 is a code identifying exclusively the circumstances in which a document is served personally.
Subrule 67(2) does not assist Colin. An answering document within the meaning of rule 67(2)(a) was filed by RSA Law on behalf of Cheryl in the form of a notice of address for service on 29 September 2015 and in the form of a defence on 15 October 2015 and this gave rise to a presumption of personal service under rule 67(2)(a) but the presumption only operates at the earliest with effect on 29 September 2015, by which time the six month limitation period had expired. It is established in some other way within the meaning of rule 67(2)(b) that the documents and their contents came to Cheryl’s attention by 11 September 2015 at the latest but on any view they did not come to her attention by the end of 24 August 2015 because both Ms Yule and Cheryl were unaware of them until 25 August 2015 at the earliest.
Conclusion
The preliminary issue is determined as follows: the application under the Inheritance Act was not served on the first defendant within six months of grant of probate of John’s Will.