Paton v Lloyd - [2016] WASC 421

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PATON -v- LLOYD [2016] WASC 421

CORAM: ACTING MASTER STRK

HEARD: 22 SEPTEMBER 2016

DELIVERED : 23 DECEMBER 2016

FILE NO/S: CIV 1506 of 2016

MATTER :Section 77(1) of the Trustees Act 1962 (WA)
The Estate of James Laurence Paton

BETWEEN: PETER JAMES PATON
Plaintiff
AND
JULIE MARIE LLOYD as Executrix of the Estate of JAMES LAURENCE PATON
First Defendant
JULIE MARIE LLOYD as Beneficiary under the Will of JAMES LAURENCE PATON
Second Defendant

Catchwords:

Practice and procedure - Application for security for costs - Discretionary decision - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Rules of the Supreme Court 1971 (WA), O 25

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr P R MacMillan
First Defendant             :     Mr M L Bennett
Second Defendant         :     Mr M L Bennett

Solicitors:

Plaintiff:     Griffiths Rice & Co
First Defendant             :     Bennett + Co
Second Defendant         :     Bennett + Co

Case(s) referred to in judgment(s):

Mataska v Browne [2013] VSC 62
Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35

ACTING MASTER STRK: This is the defendant's application for security for costs made under O 25 of the Rules of the Supreme Court 1971 (WA) (the Application).
For the reasons set out below, I am satisfied that an order for security for costs should not be made.

Factual background and the basis for the Application

In support of the Application, the defendant (Ms Lloyd) relied on an affidavit sworn by a solicitor, Ms Jonelle Di Lena on 16 August 2016. The plaintiff (Mr Paton) relied on three affidavits: the affidavits of Mr Paton sworn on 21 March 2016 and 7 September 2016; and the affidavit of Mr Daniel Rice, a solicitor, sworn on 5 September 2016.

Status of the proceedings

These proceedings were commenced by way of originating summons on 30 March 2016, supported by the affidavit of Mr Paton sworn on 21 March 2016 and an affidavit of Emily Louise Hughes, a solicitor, sworn 30 March 2016.
On 15 August 2016, the case management registrar made an order that the matter is to proceed as if the proceedings had commenced by writ of summons. A statement of claim was filed on 6 September 2016 and further and better particulars of that statement of claim were filed on 16 September 2016. On 15 August 2016, the case management registrar also made programming orders for the hearing of this Application. These proceedings are at a relatively early stage and Ms Lloyd has not yet filed a defence.

Nature of the proceedings

In these proceedings Mr Paton seeks among other things the revocation of this court’s grant of probate to Ms Lloyd, and the removal, or partial passing over, of Ms Lloyd as the executor of the estate of James Laurence Paton (deceased), who died on 11 April 2015. Mr Paton, who is not a beneficiary under the will of the deceased, seeks a grant of…

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.

Continue reading Paton v Lloyd

Details

AGLC: Paton v Lloyd [2016] WASC 421
Case: [2016] WASC 421
Decision Date: 23 DECEMBER 2016

CaseChat Overview and Summary

Paton v Lloyd is a case before the court where the plaintiff, Mr Paton, seeks the revocation of the court’s grant of probate to Ms Lloyd and the removal of Ms Lloyd as the executor of the estate of James Laurence Paton (deceased). The deceased died on 11 April 2015, and the estate as at his death comprised cash assets of $305,053.28. Mr Paton is not a beneficiary under the will of the deceased, but he seeks a grant of letters of administration with the will annexed and the appointment of his daughter as the administrator of the deceased estate to investigate an inter vivos transaction involving the deceased's former matrimonial home in Applecross. Ms Lloyd, the defendant, is the sole beneficiary under the will of the deceased and is joined in her capacity as executrix of the estate of the deceased.

The legal issues the court had to decide included whether the plaintiff had made out a case for security for costs and the circumstances under which the court should grant such an order. The court had to consider the affidavits and the relevant case law to determine if the plaintiff had established that the defendant had no real prospects of success and would be unable to pay the costs if ordered to do so. The court also had to consider whether the defendant had made out a case for security for costs and the circumstances under which such an order should be made.

The court held that the plaintiff had not made out a case for security for costs, as the court was not satisfied that the defendant had no real prospects of success and would be unable to pay the costs if ordered to do so. The court considered the affidavits and the relevant case law and found that the plaintiff's case was not so unmeritorious as to be an abuse of the court's process. The court also found that the defendant had not made out a case for security for costs, as the court was not satisfied that the plaintiff had no real prospects of success and would be unable to pay the costs if ordered to do so.

The court ordered that no order for security for costs be made and that the parties be heard as to the appropriate form of order. The court did not grant the plaintiff's application for security for costs, and the case will proceed to trial. The court found that the plaintiff had not established that the defendant had no real prospects of success and would be unable to pay the costs if ordered to do so, and the defendant had not made out a case for security for costs.

Orders

Orders of the court

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Background

Background to the litigation

Factual background and the basis for the Application In support of the Application, the defendant (Ms Lloyd) relied on an affidavit sworn by a solicitor, Ms Jonelle Di Lena on 16 August 2016. The plaintiff (Mr Paton) relied on three affidavits: the affidavits of Mr Paton sworn on 21 March 2016 and 7 September 2016; and the affidavit of Mr Daniel Rice, a solicitor, sworn on 5 September 2016. These proceedings were commenced by way of originating summons on 30 March 2016, supported by the affidavit of Mr Paton sworn on 21 March 2016 and an affidavit of Emily Louise Hughes, a solicitor, sworn 30 March 2016. On 15 August 2016, the case management registrar made an order that the matter is to proceed as if the proceedings had commenced by writ of summons. A statement of claim was filed on 6 September 2016 and further and better particulars of that statement of claim were filed on 16 September 2016. On 15 August 2016, the case management registrar also made programming orders for the hearing of this Application. These proceedings are at a relatively early stage and Ms Lloyd has not yet filed a defence. In these proceedings Mr Paton seeks among other things the revocation of this court’s grant of probate to Ms Lloyd, and the removal, or partial passing over, of Ms Lloyd as the executor of the estate of James Laurence Paton (deceased), who died on 11 April 2015. Mr Paton, who is not a beneficiary under the will of the deceased, seeks a grant of letters of administration with the will annexed and the appointment of his daughter (either temporarily or permanently) as the administrator of the deceased estate so that among other things, investigations regarding an inter vivos transaction may be undertaken. The inter vivos transaction involves a contract for sale by offer and acceptance of the deceased's former matrimonial home in Applecross (the Property) to Ms Lloyd's daughter and her partner in January 2015. The estate of the deceased as at his death in April 2015 comprised cash assets in the amount of $305,053.28, which has now been largely distributed to Ms Lloyd as sole beneficiary under the will of the deceased.[1] Mr Paton says that the Property was sold in January 2015 for $800,000; the deceased received at settlement $414,795; and the deceased had received prior to settlement $384,819.42 in part payment of the purchase price. By these proceedings Mr Paton seeks to have the disposition of moneys between January and April 2015 investigated. Written requests were made on behalf of Mr Paton for an explanation as to, among other things, the manner in which the net proceeds of sale of the Property were exhausted or disposed of prior to Ms Lloyd's application for the grant of probate.[2] Mr Paton says that he has not received a substantive response to the same.[1] Affidavit of Peter James Paton sworn 21 March 2016, 'PP4' and 'PP5'.[2] Affidavit of Peter James Paton sworn 21 March 2016, [16] – [19]. Ms Lloyd is the first defendant in these proceedings, joined in her capacity as executrix of the estate of the deceased. Ms Lloyd is also joined as the second defendant in these proceedings in her capacity as beneficiary under the will of the deceased.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusion For the reasons set out above, I am not satisfied that an order for security for costs should be made. I will hear from the parties as to the appropriate form of order.

Ratio Decidendi

Legal Principle Established

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