Morton v Williams - [2017] NSWSC 1506

Supreme Court

New South Wales

Medium Neutral Citation: Morton v Williams [2017] NSWSC 1506
Hearing dates: 1 November 2017
Date of orders: 01 November 2017
Decision date: 01 November 2017
Jurisdiction: Equity - Duty List
Before: Parker J
Decision:
Motion dismissed

Catchwords: Civil procedure – third party application to intervene – proper plaintiff in estate proceedings – amicus curiae – where administrator of estate is willing and able to provide adequate assistance to the Court
Cases Cited: Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7
Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31
Category: Procedural and other rulings
Parties: Maria Antoinette Joan Morton (Plaintiff)
Richard Alwyene John Williams (Defendant)
Representation:
Counsel:
AD Crossland (Plaintiff)
J Pearson (Defendant)

In person:
PJ Urquhart (Third Party Applicant)
Solicitors:
Elderlaw (Plaintiff)
Shad Partners (Defendant)

File Number(s): 2017/230765
Publication restriction: Nil

Judgment – EX TEMPORE

(revised and issued 6 november 2017)

These proceedings concern the estate of the late William Albert Francis Williams who died in August 2015. For convenience and without disrespect, I will refer to the members of Mr Williams’ family by their Christian names.
Mr Williams left a will under which his estate was to pass to his four surviving children in equal shares. Those children are his son, Richard Alwyene Williams, and his three daughters, Ms Maria Antoinette Joan Morton, Mrs Elizabeth Audrey Joan Campbell and Ms Cheryl Ann Joan Williams.
Ms Morton is the administrator of the estate, having been appointed to that office by orders of this Court made in earlier proceedings concerning Mr Williams’ estate. In these proceedings she sues as plaintiff on behalf of the estate. The defendant is Mr Richard Williams. The claims made against him do not need to be given in any particular detail but, broadly speaking, concern alleged misappropriation of property and assets of the deceased before he died. Apparently, Mr Richard Williams had access to his bank accounts under a power of attorney which had been signed by the deceased in January 1997 and which was revoked by the deceased in November 2014.
This judgment concerns an application made by Paul James Urquhart who is not a party to the proceedings. Mr Urquhart is the partner of Ms Cheryl Williams. By notice of motion filed on 25 September 2017, Mr Urquhart seeks the following orders:

1.   This applicant is granted leave to address the Court with regard to this Motion.
2.   That the applicant be named as a party to these proceedings as a ‘friend of the court’ or in the alternative as so ordered by the Court.
3.   That the affidavit in support of this Motion and its annexures be filed    within the matter 2017/00230765 as listed.
4.   That the parties meet their own costs.
5.   Subject to Order 4, leave is granted to address the Court as to the    issue of Costs.
6.   Orders the Court deems proper.

Accompanying the notice of motion is an affidavit from Mr Urquhart in which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1506
Decision Date: 01 November 2017

CaseChat Overview and Summary

The case of Morton v Williams involves a dispute over the proper plaintiff in estate proceedings. The application to intervene was made by a third party who sought to be heard in the proceedings on the basis that they would provide more adequate assistance to the Court than the current administrator of the estate. The matter was heard in the Supreme Court of Victoria. The court was required to determine whether the third party was a proper party to the proceedings and whether they could be allowed to intervene as an amicus curiae.

The court considered the relevant legislation and case law on the issue of third party intervention in estate proceedings. It noted that the general rule is that only the proper plaintiff, in this case the administrator of the estate, can bring proceedings on behalf of the estate. However, the court also recognised that in exceptional circumstances, a third party may be allowed to intervene if they can demonstrate that they are better placed to provide adequate assistance to the Court. In this case, the court found that the administrator of the estate was willing and able to provide adequate assistance to the Court and that there was no compelling reason to allow the third party to intervene. The court therefore dismissed the application to intervene.

The court held that the application to intervene was not in the interests of justice and that the administrator of the estate was the proper plaintiff in the proceedings. The court also noted that the third party's application was effectively an attempt to undermine the authority of the administrator and that this was not appropriate. The court found that the administrator was fully capable of providing adequate assistance to the Court and that there was no need for the third party to intervene. The application to intervene was therefore dismissed with no orders for costs.

Orders