Miller v Miller

Case [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…

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Miller v Miller [2017] SASC 37
Case
[2017] SASC 37
Decision Date

CaseChat Overview and Summary

Miller v Miller was a case involving the administration of an estate and a dispute over the timing of a statutory claim made under the Inheritance Act 1970 (SA). The dispute arose between Cheryl, who was the executor of her mother Elsie's estate, and Colin, one of her siblings. The case was heard in the Supreme Court of South Australia. The court was tasked with determining whether Cheryl had been properly served with Colin's Inheritance Act application within the six-month period required by law. Additionally, the court had to consider whether the absence of an acknowledgement of service by Adelta Legal, Cheryl's legal representative, affected the validity of the service.

The key legal issues revolved around the interpretation of the Supreme Court Rules 2006 (SA) and the timing of the service of Colin's application on Cheryl. Specifically, the court had to decide whether Adelta Legal had the authority to accept service on Cheryl's behalf and whether the lack of an explicit acknowledgement under rule 67(1)(c) of the Rules affected the validity of the service. The court also needed to ascertain when Cheryl actually became aware of Colin's application and whether this awareness occurred within the required six-month period.

The court found that Adelta Legal did have the authority to accept service on Cheryl's behalf, as there was no discussion between Cheryl and her solicitors about the acceptance of such service. The court further concluded that the absence of an explicit acknowledgement of service under rule 67(1)(c) did not invalidate the service. The court determined that Cheryl became aware of Colin's application on 25 August 2015, which was beyond the six-month limitation period after the grant of probate. Consequently, the court ruled that the application was not served within the required timeframe.

In conclusion, the preliminary issue was resolved in favour of Cheryl, establishing that Colin's Inheritance Act application was not served on Cheryl within the six-month period from the grant of probate. This determination had significant implications for the timing and validity of Colin's claim under the Inheritance Act.

Orders

Orders of the court

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Background

Background to the litigation

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 WorkYou 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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