Scott v Johnson & Ors
[2010] SASC 277
•17 September 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SCOTT v JOHNSON & ORS
[2010] SASC 277
Judgment of The Honourable Justice White
17 September 2010
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - ORDERS FOR FURTHER AND BETTER DISCOVERY
Plaintiff brought application for further disclosure of documents in relation to her claims of constructive trusts, her claim to the return of certain assets, and her alternative claim under the Inheritance (Family Provision) Act 1972 (SA) in respect of the estate of her late husband - plaintiff acknowledged that some of the documents sought were not directly relevant to the issues in the action - whether the defendants who are the executors of the deceased's will should disclose documents sought by the plaintiff for the purposes of a valuation of estate assets - defendants resisted application on the grounds of irrelevance, oppression and absence of utility.
Held: plaintiff's claim for disclosure allowed in part - documents directly relevant to plaintiff's constructive trust claim and the proprietary remedy sought should be disclosed - the claim for the documents for the purposes of the proposed valuation dismissed as not relevant to any issue identified by the pleadings or by a notice under r 312(11) of the Supreme Court Rules 2006.
Inheritance (Family Provision) Act 1972 (SA) s 7; Supreme Court Civil Rules 2006 (SA) r 136, r 139, r 145, r 312, referred to.
Channel Seven Adelaide Pty Ltd v Lane and Hurley (2004) 234 LSJS 225; Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd (2002) 223 LSJS 266; Rehn v Australian Football League (2003) 227 LSJS 378; Harris Scarfe Ltd v Ernst & Young (No 4) (2005) 95 SASR 300; Ceneavenue Pty Ltd v Martin [2008] SASC 332, applied.
Muschinski v Dodds (1985) 160 CLR 583; Baumgartner v Baumgartner (1987) 164 CLR 137; Singer v Berghouse (1994) 181 CLR 201; Goodman v Windeyer (1980) 144 CLR 490, considered.
SCOTT v JOHNSON & ORS
[2010] SASC 277Civil
WHITE J: This is an application for further disclosure of documents.
The plaintiff is the widow of the late Allan Scott (the deceased) who died on 28 October 2008. The first four defendants are the executors of his will. The deceased left a substantial estate, valued for probate purposes at just under $350 million.
In these proceedings, the plaintiff seeks declarations that the executors hold certain assets of the estate subject to a trust in her favour, orders for the delivery up of certain household effects (together with damages for the loss of use of those effects), and, or in the alternative, an order under s 7 of the Inheritance (Family Provision) Act 1972 (SA) (the IFP Act) for provision for her maintenance, education or advancement in life.
By their defence, the executors deny that the plaintiff is entitled to any relief.
The Disclosure Obligations
By r 136(1) of the Supreme Court Civil Rules 2006 (the 2006 Rules) each party to civil proceedings must disclose the documents which are, or which have been, in the party’s possession and which are “directly relevant to any issue raised in the pleadings” or which are required to be disclosed by an order of the Court.
The issue of direct relevance is to be determined by reference to the pleadings. A document will be directly relevant if it tends to prove or disprove a matter which is in issue. It will not be directly relevant if it merely tends to prove or disprove something that may be relevant to a matter in issue, or if there is merely a chance that the document will prove or disprove a matter in issue.[1]
[1] Channel Seven Adelaide Pty Ltd v Lane and Hurley [2004] SASC 177 at [22]-[25]; (2004) 234 LSJS 225 at 230-1; Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374 at [9]-[11]; (2002) 223 LSJS 266 at 267; Rehn v Australian Football League [2003] SASC 159 at [24]; (2003) 227 LSJS 378 at 381 and Harris Scarfe Ltd v Ernst & Young (No 4) [2005] SASC 443 at [13]-[15]; (2005) 95 SASR 300 at 303-4.
On 22 June 2010 the defendants filed a list of documents listing numerous documents which they accepted were directly relevant to the issues raised on the pleadings. The plaintiff challenges the adequacy of this list and seeks orders under r 145(1) of the 2006 Rules.
Rule 145 concerns non-compliance with a party’s disclosure obligations. It provides:
(1)If there is reason to doubt whether a party has fully complied with the party's obligations to disclose and produce documents under this Part, the Court may make orders the Court considers appropriate to ensure that the obligations have been fully complied with and, if necessary, to enforce those obligations.
(2) The Court may (for example)—
(a) require the party, or another person who may be in a position to provide relevant information, to appear before the Court for examination; or
(b) require the party to answer written questions relevant to ascertaining whether the party has made full disclosure.
Rule 145 empowers the Court to make orders “if there is reason to doubt” that a party has complied fully with its disclosure obligations. In Ceneavenue Pty Ltd v Martin,[2] I said of r 145(1):
I consider that the expression “reason to doubt whether a party has fully complied with the party’s obligations to disclose and produce documents” in r 145 implies a presumption that there has been compliance with a party’s disclosure obligations. Hence, it will be incumbent upon an applicant for further and better disclosure to point to matters which indicate that the Court should not give effect to that presumption. It is not necessary for the Court to be convinced that the plaintiffs’ disclosure is inadequate, or to be satisfied on the balance of probabilities that it is inadequate. It is sufficient if the Court is satisfied that there is a reasonable basis for doubting that the disclosure made is adequate. This will require a degree of satisfaction going beyond the mere possibility that the plaintiffs’ disclosure is inadequate.
An applicant may establish the doubt by demonstrating, amongst other things, that the party making the disclosure has proceeded under some form of misconception, whether as to the nature of the issues arising on the pleadings, or as to the documents which may be directly relevant to those issues, or as to the reach of the rules concerning possession. It may also satisfy the evidential onus by pointing to the documents which one would expect to have come into existence in the circumstances of the case by reason of ordinary commercial practice or experience, by reference to the pleadings themselves or by reference to other documents already disclosed.[3]
[2] [2008] SASC 332.
[3] Ibid at [11]-[12].
In the present case, both parties accepted that this passage was a proper statement of the approach to be applied in relation to the application of r 145 in the circumstances of this case. This means that the plaintiff must establish a reasonable basis for doubting that the defendants’ disclosure is adequate. She must establish more than a mere possibility or suspicion that the defendants’ disclosure is inadequate.
The plaintiff also seeks orders under r 139(1) of the 2006 Rules.
Rule 139(1)(a) and (b) provide as follows:
(1) The Court may, on application by an interested party—
(a) extend the obligation to disclose to classes of documents specified by the Court; or
Example—
The Court might extend the obligation of disclosure to documents that are only indirectly relevant to a particular issue arising in the action.
(b) relieve a party from the obligation to disclose documents or limit the obligation to documents or classes of documents specified by the Court; or
It can be seen that paragraphs (a) and (b) in r 139(1) allow the Court to enlarge or confine the scope of a party’s disclosure obligations, as the justice of the case requires.
In the present case, the plaintiff sought to invoke paragraph (a) in relation to documents which she acknowledged were not directly relevant to an issue in the proceedings but which she contended should nevertheless be disclosed. The defendants, on the other hand, sought in effect to invoke paragraph (b) in resisting aspects of the application on the grounds of oppression and asserted absence of utility.
Although the defendants have voluntarily provided to the plaintiff a substantial amount of documentation, it was common ground that they have not disclosed the documents sought by the present application.
Background
The following background to the plaintiff’s claim is derived principally from the pleadings. Accordingly, it must be understood to comprise, for the most part, the plaintiff’s allegations rather than being statements of concluded fact.
The plaintiff pleads that she married the deceased on 11 January 1982. Between 1973 and 1982 she and the deceased had co-habited as man and wife.
The deceased divorced his first wife in about 1978 or 1979 and this was accompanied by a formal property settlement. The plaintiff divorced her first husband in or about 1975 or 1976.
Initially the plaintiff and the deceased lived in a house in Graham Street, Mount Gambier which was owned by the deceased or by one of his companies. In about 1977, the deceased bought a house in Hakea Street, Mount Gambier and registered it in his and the plaintiff’s names as joint tenants. They lived in that house until about 2000 when it was sold. From then until his death, the deceased and the plaintiff lived in a property known as “Gralan Estate” at Mount Gambier. The property was registered in the joint names of the plaintiff and the deceased as tenants in common.
The plaintiff alleges that the deceased held his one half interest in Gralan Estate subject to a constructive trust in favour of himself and the plaintiff as joint tenants (ASC [73.2]), and that upon her death the executors hold that interest subject to a constructive trust for the plaintiff absolutely (ASC [73.3]). Those constructive trusts are said to arise from the plaintiff’s belief that she owned the Hakea Street property (ASC [65]) with the deceased as joint tenants; from the fact that the deceased had not informed her that the legal ownership of Gralan Estate was as tenants in common rather than as joint tenants (ASC [66]); from certain assurances which the deceased is said to have made to her about the ownership of Gralan Estate, including its ownership after his death (ASC [67]); from assumptions she made about the ownership of Gralan Estate (ASC [68]); and from certain contributions the plaintiff says she made in reliance on these matters to the development of the assets of the deceased (ASC [69]).
The plaintiff makes a more generalised claim that the executors hold the assets owned by the deceased at his death (apart from a number of specified assets) subject to a constructive trust for the benefit of the deceased’s estate and the plaintiff (ASC [81.2]). This constructive trust is said to arise because of financial and non-financial contributions made by the plaintiff to the de facto marriage and the marriage and, or in the alternative, to the acquisition and maintenance of assets of the deceased (ASC [38]). The plaintiff also relies upon certain assurances said to have been made by the deceased giving rise to an expectation on her part that her contribution would be acknowledged by gifts in the will (ASC [77]).
In relation to each of the asserted constructive trusts, the plaintiff relies upon Muschinski v Dodds[4] and Baumgartner v Baumgartner.[5]
[4] (1985) 160 CLR 583.
[5] (1987) 164 CLR 137.
Next, the plaintiff makes claims to the household effects in eight properties, on the basis that they were owned by the deceased and her as joint tenants (ASC [30]-[32]). She also claims damages for the loss of use of the household effects (ASC [63]).
Next, the plaintiff claims a Rolls Royce purchased by the deceased in about 1976 on the basis that it was either given to her or held on trust for her benefit (ASC [33]-[37]).
Finally, and in the alternative, the plaintiff makes claims for provision under the IFP Act, asserting that she has been left without adequate provision for her proper maintenance, education and advancement in life (ASC [83]-[88]).
Documents Sought for a Valuation of the Assets of the Estate
The plaintiff wishes to carry out a valuation of the assets of the estate and, in particular, of the deceased’s interest in various corporate entities. This is evident from the two affidavits upon which she relies in support of her application, and from the submissions of her counsel. The exhibits to the affidavit of her solicitor, Mr DeGaris, referred to information requested for the purpose of valuations. In his affidavit, Mr Camens, a chartered accountant, deposed that he has been retained by the plaintiff’s solicitors “as an expert witness to provide a valuation of the entities, inclusive of goodwill, owned directly or indirectly by [the deceased]” and went on to identify documents which he needed for that purpose. Counsel sought to justify some parts of the application by reference to the asserted relevance of particular documents to the proposed valuation, contending that a valuation of the assets of the estate will be required for the property determination of her IFP Act claim.
There is no doubt that the Court will need to be informed of the true value of the estate’s assets in order to determine the claims of the plaintiff under the IFP Act. (Such evidence may also be necessary in relation to the separate applications under the IFP Act brought by some of the deceased’s grandchildren). Under s 7 of the IFP Act, the Court is required to carry out a two-stage process. The first stage is the determination of whether an applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. If that issue is resolved in favour of the applicant, the second stage requires the Court to decide what provision ought to be made out of the deceased’s estate for the applicant. Both stages require a determination of a number of circumstances, including the size and nature of the deceased’s estate.[6]
[6] Singer v Berghouse (1994) 181 CLR 201 at 209-10.
Accordingly, the Court will need evidence of the estimated value of the estate as at the date of the hearing.[7]
[7] Goodman v Windeyer (1980) 144 CLR 490 at 508-9.
Rule 312(11) of the 2006 Rules gives practical effect to this need. Sub‑paragraph (a) obliges the executors to file an affidavit at an early stage of the proceedings which, amongst other things, states the assets and liabilities of the estate. By sub-paragraph (b) the executors must, not more than 35 days and not less than 14 days before the date appointed for trial, file a further affidavit stating any changes to the financial position of the estate since the affidavit filed under sub-paragraph (a). This second affidavit will be the primary means by which the Court will be informed of the value of the assets of the estate as at the date of trial.
In the event that any party disputes a statement made in an affidavit filed by the executors under sub-paragraphs (a) or (b), that party is to file a notice of dispute identifying the particular matter in dispute (sub-paragraph (c)). It is by that means that any issue about the proper valuation of the estate’s assets will be defined.
Rule 312(11) leaves open the possibility that an issue concerning the proper value of an estate’s assets may not emerge until as late as 14 days before the date appointed for trial. There is therefore the potential for such a dispute to dislocate the trial. That consideration points in favour of the Court making appropriate interlocutory orders at an earlier stage when it is known that there will be an issue about the extent of the estate.
On the other hand, it is often the case that executors will, in the ordinary course of administration, convert some assets into money form, thereby (subject to issues about the proper discharge of their duties) eliminating the prospect for dispute about the value of those portions of the estate. In addition, the Court should be concerned about the potential for dissipation of the estate’s assets by requiring, or permitting, expenditures on valuations which turn out to be unnecessary. These are factors which point against the making of interlocutory orders concerning valuation of an estate’s assets at an early stage.
In support of this part of her application, the plaintiff referred to the fact that two of the executors are substantial beneficiaries under the will of the deceased. She raises the potential for any affidavit filed by, or on behalf of, the executors to be influenced by that conflict of interest, leading to an underestimate of the value of the estate’s assets.
The potential for conflict of interest should not be overlooked. However, nor should the fact that there are two other executors be overlooked. One (Mr Johnson) is a practitioner of this Court and the other (Mr Grubb) is, as I understand it, a director of a publicly listed company. There is nothing in the material placed before the Court to indicate that these persons will not discharge properly their responsibilities to the estate and to the Court.
Further, the plaintiff’s amended statement of claim does not raise any issue about the appropriate valuation of the estate’s assets. No doubt it was for this reason that the plaintiff’s submissions accepted that the documents she sought for the purposes of valuation were (for the most part) only indirectly relevant to matters in issue.
As it happens the executors have not complied with r 312(11)(a) by filing in this action an affidavit deposing to the assets and liabilities of the estate. The parties have instead sensibly treated the affidavit filed by Mr Johnson in the related IFP Act action brought by the deceased’s daughters and some of his grandchildren as fulfilling that purpose. None of the parties in that action have filed a notice of dispute under r 312(11)(c) in relation to Mr Johnson’s affidavit. Nor has the present plaintiff who has been granted the right to be heard in that action.
I am concerned that an issue about values arising at a late stage may interrupt the efficient conduct of the trial in this matter. However, I am not satisfied that it is appropriate at this stage to require the executors to make further disclosure of the documents which the plaintiff seeks for the purposes of her proposed valuation. First, the pleadings do not raise any issue about the values of the assets of the estate. Secondly, the administration of the estate is continuing with the prospect of further assets being converted to cash and the executors will have to file an affidavit giving an up-to-date statement of the financial position of the estate for the purposes of the trial. Thirdly, the Rules provide a mechanism by which a dispute arising from that affidavit can be defined and determined. Fourthly, it is unlikely that there will be a dispute about the value of every single asset of the estate. Finally, I note that the executors have already voluntarily disclosed a substantial amount of the documents sought by the plaintiff.
Accordingly, I refuse to order further disclosure of the documents sought by the plaintiff for valuation purposes.
I now turn to the particular claims of the plaintiff, using the paragraph numbering in her interlocutory application. I propose to give only short reasons in relation to each class of documents which is sought.
Paragraph 2.1
The plaintiff seeks disclosure of the documents held by the executors which are directly relevant to “the identity and value of the assets and liabilities of [the deceased] for the period 1973 to the year ending 30 June 2007”.
The plaintiff selects 1973 as that is the year in which her de facto relationship with the deceased commenced. She selects the date 30 June 2007 because the executors have already disclosed tax returns for the financial year ending on 30 June 2008.
The plaintiff contends that these documents are directly relevant to her claimed constructive trusts because provision of the documents will assist her in comparing the deceased’s asset position at the commencement of the relationship with his asset position as at the date of death.
I agree that the plaintiff is entitled to disclosure of documents directly relevant to identifying the assets and liabilities of the deceased in 1973 and at his death on 28 October 2008. However, I reject the claim for disclosure of documents in respect of the assets and liabilities of the deceased in the period intervening between 1973 and 25 October 2008. The plaintiff’s claim is for a proprietary remedy. Its ultimate focus will be on those assets of the deceased as at the date of his death. If the plaintiff makes out her claim, she will be entitled to some proportion of the assets held at death, whatever their value. The documents relating to assets which were acquired and disposed of in the intervening period are not directly relevant to the issues arising from that claim. The plaintiff will be able to make the comparison which she proposes without reference to these documents.
I also reject this claim insofar as it seeks documents relating to the value of the assets and liabilities of the deceased. I agree with the executors that documents relating to the value of the assets and liabilities are not directly relevant to the plaintiff’s constructive trust claims. As indicated above, I consider that those claims may be determined without evidence as to the value of the deceased’s assets.
Accordingly, I direct that the executors make further disclosure of any documents in their possession which are directly relevant to identifying the assets and liabilities of the deceased in 1973. The plaintiff does not assert that the executors have not already identified the assets of the deceased as at the date of his death. No further order under paragraph 2.1 is appropriate.
Paragraph 2.2
By this paragraph the plaintiff seeks disclosure of documents which are directly relevant to “the income earnt by [the deceased] for the period 1973 to the year ending 30 June 2007 including but not limited to all taxation returns and notices of assessment for each financial year during that period”.
I accept that documents relevant to the accumulation of wealth by the deceased during the period of his relationship with the plaintiff may be relevant to the plaintiff’s constructive trust claims. They may possibly be relevant to the plaintiff’s claim that her activities contributed to the deceased’s accumulation of wealth.
Nevertheless, the plaintiff’s claim is expressed too widely. I will direct only that the executors make disclosure of the taxation returns submitted by the deceased to the Australian Taxation Office (ATO), and of the notices of assessment issued by the ATO which are in their possession and which relate to each of the financial years commencing on 30 June 1973 and concluding on 30 June 2007. In all other respects the application made in paragraph 2.2 is refused.
Paragraph 2.3
The plaintiff seeks disclosure of documents relating to “the matrimonial property settlement between [the deceased and his first wife] in or about 1978 or 1979, including but not limited to any court documents filed or prepared on behalf of [the deceased]”.
It is an admitted fact that the deceased divorced his first wife in about 1978 or 1979 and that that divorce was accompanied by a property settlement. It is reasonable to suppose that there was documentation brought into existence at the time of the property settlement recording its terms.
However, I am not satisfied that documents relating to the property settlement are directly relevant to the issues raised by the plaintiff’s pleading. I note again that the plaintiff seeks a proprietary remedy in respect of the assets held by the deceased as at the date of his death and wishes to compare those with the assets held by him at the commencement of their relationship. While it is reasonable to suppose that the property settlement may have resulted in some depletion of the deceased’s asset position in about 1978 or 1979, the details of that depletion are not directly relevant to the determination of the plaintiff’s claim.
This aspect of the plaintiff’s claim is refused.
Paragraph 2.4
The plaintiff seeks disclosure of documents relating to “the extent of the work undertaken and labour employed by [the deceased] or the businesses controlled by him for the maintenance and improvement of [six specified properties]”. These are the properties upon which the plaintiff claimed that she carried out “a large amount of work” by way of assistance to the deceased.
The executors plead that the deceased, and the businesses controlled by him, employed labour to carry out the necessary work of the maintenance and improvement of these properties. They also plead that while the deceased and the plaintiff may, from time to time, have attended the properties it was for the purpose of spending time together rather than for the purpose of contributing to the business or the profitability of the properties.
In his affidavit, the executor, Mr Johnson, deposes that the deceased did manage the six specified properties with the assistance of employees. He describes these persons as “personal employees of the deceased” who would manage the properties on his behalf. It is reasonable to suppose that at least at some stage the deceased must have had documentation regarding his employment of these employees.
In my opinion, any documents in the possession of the defendants relating to the employment of others by the deceased, or businesses controlled by him, to carry out maintenance or improvement work on the six identified properties should be disclosed. I agree that the extent of the activities carried out by such persons is directly relevant to the plaintiff’s claim.
Paragraph 2.5
The plaintiff seeks disclosure of documents relating to “the assets, liabilities, income and expenditure” for the three businesses which are the subject of paragraphs 43, 44 and 45 of the amended statement of claim. The first is a coffee shop in Mount Gambier in which the plaintiff, at the deceased’s request, worked as manager in about 1980. The second is a ladies’ clothing store known as “Roxy Lady” in which the plaintiff, at the deceased’s request, worked as manager in approximately 1981-1982. The third is a ladies’ clothing shop in Mount Gambier at which the plaintiff, at the deceased’s request, worked as manager in 1982-1983.
The plaintiff’s says that she was not paid a wage or salary for her work in any of these businesses.
In my opinion, the documents sought by the plaintiff are directly relevant to her claims of a constructive trust and possibly relevant to her IFP Act claim. They are directly relevant to her claims of unpaid contributions to business activities of the deceased. The defendants should make the further disclosure sought by the plaintiff.
Paragraph 2.6
The plaintiff seeks disclosure of documents relating to “the assets, liabilities, income and expenditure for the business ‘Fidler and Webb Department Store, Mount Gambier’ for the period 1993 to 2009”.
The plaintiff alleges that she participated in the business of that store in three separate ways. Commencing in 1985 or 1986, at the deceased’s request, the plaintiff commenced work at Fidler and Webb, initially as a departmental manager but later as the general manager. The plaintiff continued this work until 1991.
In 1993, again at the deceased’s request, the plaintiff resumed work at Fidler and Webb as its general manager working full-time. She continued to work in that position until shortly after October 2008 and says that she was not paid a wage or salary for doing so.
In addition, on 18 May 1989 the deceased caused the plaintiff to be appointed as a director of Fidler and Webb Pty Ltd and thereafter she performed some of the duties of a director.
In my opinion, the documents sought by the plaintiff in relation to the business of Fidler and Webb are directly relevant to the plaintiff’s claim of a constructive trust. They may evidence the results of the plaintiff’s unpaid contributions to that store. Accordingly, the defendants should make disclosure of the documents as sought in paragraph 2.6.
Paragraph 2.7
The plaintiff seeks disclosure of “any documents … directly relevant to the execution of any previous wills of the deceased for the period 1973 to 2008, including, but not limited to, the wills themselves, drafts and notes of instructions”. Ultimately, the defendants did not oppose this aspect of the plaintiff’s application and I will make an order to the effect sought.
Paragraph 2.8
The plaintiff seeks disclosure of documents relating to the health of the deceased as at the date of execution of his will in October 2008. She pleads that at the time the plaintiff executed his will he was blind, suffering from poor health, in intensive care in a hospital, and receiving drugs for pain relief.
The plaintiff’s claim is that documents relating to the health of the deceased at the time he executed his will will be relevant to the Court’s assessment of the weight to be attached to the deceased’s wishes as expressed in the will, and accordingly relevant to the determination of her IFP Act claim. The submission seemed to be that the Court may be inclined to attach less weight to the express wishes of a testator if satisfied that the testator’s ill health may have affected the testator’s ability to act wisely and justly when making his or her will.
The plaintiff could not refer to any authority in support of this proposition. I also note that the plaintiff’s pleading does not contain a claim that the deceased’s judgment in relation to the making of his will was in some way impaired in October 2008. In my opinion, the documents sought are not directly relevant to any issue raised on the pleadings and this part of the application should be refused.
Paragraph 3
By paragraph 3, the plaintiff seeks disclosure of documents recording “the making of resolutions or the holding of meetings of the directors” of seven specified companies (including but not limited to any agendas or minutes of such resolutions or meetings). The plaintiff acknowledged that the documents she sought in this category were not directly relevant to any issue raised on the pleadings.
With one exception, each of the specified companies is a company of which the plaintiff claims she had, at the instigation of the deceased, been a director. The companies, together with the period of the plaintiff’s directorship are as follows:
1. Fidler and Webb Pty Ltd, 18 May 1989 to-date;
2. Eromstar Pty Ltd, 11 March 1988 to-date;
3. Flinders Holdings Pty Ltd, 22 March 1997 to-date;
4. Gralan Pty Ltd, 2 July 1990 to-date;
5. Whitscot Investments Pty Ltd, 18 June 1998 to-date;
6. Dybud Holdings Ltd, 7 May 1990 to-date.
The plaintiff did not press an application in respect of a seventh company, Kallora Pty Ltd.
I refuse the application insofar as it concerns Dybud Holdings Ltd. That is because this company is not the subject of any pleading by the plaintiff. I also note that the defendants are voluntarily taking steps to locate any documents of the kind sought in relation to Dybud Holdings Ltd. An order in respect of that company is not necessary.
In my opinion, the plaintiff is entitled to disclosure of the agendas and minutes of meetings of each of Fidler and Webb Pty Ltd, Eromstar Pty Ltd, Flinders Holdings Pty Ltd, Gralan Pty Ltd and Whitscot Investments Pty Ltd. Documents of that kind may evidence the plaintiff’s claimed contribution to the accumulation of assets by the deceased. They may also be relevant to the determination of the plaintiff’s IFP Act claim.
However, I will confine the requirement of further disclosure to that of agendas and minutes. This is appropriate to avoid making the task of providing further disclosure oppressive.
Paragraphs 4 and 5
These two paragraphs can conveniently be considered together. By paragraph 4, the plaintiff sought disclosure of the financial statements for the period 1 July 2008 to-date for some 23 entities (although at the hearing the applications in respect of some of these entities were not pursued).
By paragraph 5, the plaintiff sought disclosure of documents recording any real property owned by some 19 entities. Again, at the hearing, the plaintiff did not pursue the claim in respect of every one of these entities.
The plaintiff acknowledged that the documents which she sought in paragraphs 4 and 5 were not directly relevant to any issue raised on the pleadings. She sought the documents for the purpose of the valuation exercise for which she has retained Mr Camens.
For the reasons given earlier, I decline to order the disclosure of documents sought only for the purposes of a valuation of the assets of the deceased. Given the large number of entities in respect of which the plaintiff seeks documents, I am also concerned about the prospect of oppression of the defendants, and about the prospect of the estate incurring expenses unnecessarily.
The applications made by the plaintiff in paragraphs 4 and 5 are refused.
For the reasons given above, the plaintiff’s claim is allowed in part. Using the paragraph numbers in the plaintiff’s application filed on 17 August 2010 (FDN 10), I direct that the defendants make further disclosure of documents as follows:
1.In regard to paragraph 2.1, the defendants are to disclose any documents which are directly relevant to identifying the assets and liabilities of the deceased in 1973;
2.In regard to paragraph 2.2, the defendants are to disclose the taxation returns submitted by the deceased to the ATO, and the notices of assessment issued by the ATO which relate to each of the financial years commencing on 30 June 1973 and concluding on 30 June 2007;
3.In regard to paragraph 2.4, the defendants are to disclose any documents relating to the employment of others by the deceased to carry out maintenance or improvement work on the six identified properties;
4.In regard to paragraph 2.5, the defendants are to disclose documents relating to the assets, liabilities, income and expenditure for the three businesses which are the subject of paragraphs 43 to 45 of the amended statement of claim;
5.In regard to paragraph 2.6, the defendants are to disclose documents relating to the assets, liabilities, income and expenditure for the business “Fidler and Webb Department Store, Mount Gambier” for the period 1993 to 2009;
6.In regard to paragraph 2.7, the defendants are to disclose any previous wills of the deceased for the period 1973 to 2008, including, but not limited to, the wills themselves, drafts and notes of instructions; and
7.In regard to paragraph 3, the defendants are to disclose the agendas and minutes of meetings of each of Fidler and Webb Pty Ltd, Eromstar Pty Ltd, Flinders Holdings Pty Ltd, Gralan Pty Ltd and Whitscot Investments Pty Ltd.
Otherwise, the plaintiff’s interlocutory application of 17 August 2010 is dismissed.
I direct the parties to bring in minutes to reflect these proposed orders, and I will hear the parties as to costs.
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