Scott v Scott - [2022] SASCA 33

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
SCOTT & ANOR v SCOTT & ANOR
[2022] SASCA 33
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
7 April 2022
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
By Notice of Appeal dated 26 November 2021, the appellant sought to appeal against the judgment of a Master of this Court dated 10 August 2021, his supplementary reasons dated 25 October 2021, and his orders made on 4 and 22 November 2021 concerning provision made out of her deceased mother's estate for her disabled siblings. The appellant sought to appeal in her capacity as both executrix of the estate of the deceased and as the sole beneficiary of the deceased’s estate. The appellant sought the production of subpoenaed documents and she sought to tender other documents in support of her case.
The appeal grounds are difficult to discern, but include reliance on the forfeiture rule.
Held (the Court), dismissing the appeal:
1.The documents the subject of the various subpoenas and the other documents relied on by the appellant are not received. There is no basis to find that the rules relating to fresh evidence have been satisfied and they are of no evidentiary value in these proceedings, including in so far as they relate to the forfeiture issue.
2.The appellant is disjoined as appellant and joined as the third respondent in her capacity as executrix.
3.The appellant has not established any material error of fact or law and the provision made to each respondent was within the discretion of the Court.
4.The respondents are to have the costs of the appeal on an indemnity basis. The appellant is to pay these costs personally and she is not to be indemnified for those costs out of the estate. To the extent of any shortfall, the respondents' costs will be met out of the estate.
5.The appellant is not to have her costs as executrix, whether as appellant or third respondent, paid out of the estate.

Inheritance (Family Provision) Act 1972 (SA) s 7; Uniform Civil Rules 2020 (SA) ss 3.1, 143.1, 143.2, 212.3(1)(a)(i), 254.15; Criminal Law Consolidation Act 1935 (SA); Defamation Act 2005 (SA); Supreme Court Act 1935 (SA) s 50(2); Survival of Causes of Action Act 1940 (SA) s 2, referred to.
Scott & Anor v Scott & Anor [2021] SASC 96; Scott & Anor v Scott & Anor (No 2) (Supreme Court of South Australia, Judge Dart, 25 October 2021); House v The King (1936) 55 CLR 499; Norbis v Norbis (1986) 161 CLR 513; Tiburzi v Butler [2017] SASCFC 89

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 Scott v Scott

Details

AGLC: Scott v Scott [2022] SASCA 33
Case: [2022] SASCA 33
Decision Date: 7 April 2022

CaseChat Overview and Summary

The case of *Scott v Scott* concerned an appeal brought by the appellant, in her capacity as executrix of an estate, against a decision of the primary court regarding the distribution of estate assets. The respondents were beneficiaries of the estate. The appeal sought to introduce further evidence and challenged the primary court's distribution orders.

The central legal issues before the Full Court of the Supreme Court of South Australia were whether the appellant should be permitted to adduce fresh evidence on appeal, whether the primary court had made any material error of fact or law in its distribution orders, and the appropriate orders for costs. The appellant also sought to remain as the appellant in the proceedings, despite her role as executrix.

The Court dismissed the appeal, finding no basis to admit the further evidence tendered by the appellant, as it did not satisfy the rules for fresh evidence and lacked evidentiary value. The Court also determined that the appellant had failed to establish any material error of fact or law in the primary court's decision, concluding that the provisions made for the respondents were within the court's discretion. Consequently, the appellant was disjoined as the appellant and joined as the third respondent in her capacity as executrix. The Court ordered that the respondents recover their costs of the appeal on an indemnity basis, to be paid personally by the appellant, and not out of the estate. Any shortfall in these costs was to be met from the estate. The appellant was also denied her costs as executrix, whether in her capacity as appellant or third respondent, from the estate.

Orders

Orders of the court

Held (the Court), dismissing the appeal:

1. The documents the subject of the various subpoenas and the other documents relied on by the appellant are not received. There is no basis to find that the rules relating to fresh evidence have been satisfied and they are of no evidentiary value in these proceedings, including in so far as they relate to the forfeiture issue.

2. The appellant is disjoined as appellant and joined as the third respondent in her capacity as executrix.

3. The appellant has not established any material error of fact or law and the provision made to each respondent was within the discretion of the Court.

4. The respondents are to have the costs of the appeal on an indemnity basis. The appellant is to pay these costs personally and she is not to be indemnified for those costs out of the estate. To the extent of any shortfall, the respondents' costs will be met out of the estate.

5. The appellant is not to have her costs as executrix, whether as appellant or third respondent, paid out of the estate.

Background

Background to the litigation

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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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