Scott v Johnson & Ors

Case [2010] SASC 277

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 277

Civil

  1. WHITE J:             This is an application for further disclosure of documents.

  2. 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.

  3. 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.

  4. By their defence, the executors deny that the plaintiff is entitled to any relief.

    The Disclosure Obligations

  5. By r 136(1) of the Supreme Court Civil Rules 2006 (the 2006 Rules) each party to civil…

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AGLC
Scott v Johnson & Ors [2010] SASC 277
Case
[2010] SASC 277
Decision Date

CaseChat Overview and Summary

In the matter of Scott v Johnson & Ors, the plaintiff, Ms Scott, sought further disclosure of documents from the defendants, who are the executors of her late husband's estate, 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). Although the defendants had already provided a substantial amount of documentation voluntarily, it was common ground that they had not disclosed the documents specifically sought by the plaintiff in this application. The defendants resisted the application on the grounds of irrelevance, oppression, and absence of utility.

The court was required to determine whether the defendants should be ordered to disclose the documents sought by the plaintiff. The plaintiff argued that the documents were necessary for her to properly pursue her claims, while the defendants contended that many of the documents were not relevant to the issues in the action, and that disclosure would be oppressive and serve no useful purpose. The court had to balance the plaintiff's right to access relevant documents against the defendants' arguments that disclosure would be burdensome and not pertinent to the case.

The court found that the plaintiff's claim for disclosure should be allowed in part. The documents directly relevant to the plaintiff's constructive trust claim and the proprietary remedy sought were ordered to be disclosed. However, the court dismissed the plaintiff's request for documents for the purposes of a valuation of estate assets, as it found that such disclosure was not relevant to any issue identified by the pleadings or by a notice under r 312(11) of the Supreme Court Rules 2006. The court considered that the plaintiff's claims did not require a valuation of the estate assets for their resolution.

The court ordered the defendants to disclose the documents directly relevant to the plaintiff's constructive trust claim and the proprietary remedy sought. The order did not extend to the documents for the purposes of a valuation of estate assets, which the court found to be irrelevant to the issues in the action.

Orders

Orders of the court

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Background

Background to the litigation

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]).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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