Shepherd v Cooper - [2019] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
SHEPHERD v COOPER & ANOR
[2019] SASC 138
Judgment of The Honourable Justice Doyle
9 August 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - WHEN APPEAL LIES AND EFFECT OF DEATH OF PARTY
The appellant appeals from a decision of a Magistrate granting judgment in favour of the respondents.
Prior to the hearing of the appeal, the appellant died. Ms Wilkinson brought an application seeking an order that she be substituted as the appellant in the capacity as personal representative of his estate. She seeks a further adjournment of the matter to enable her to pursue her claim for a declaration that she was the appellant’s domestic partner with a view to ultimately being in a position to take over the conduct of the appeal.
Held (per Doyle J):
1. It is not appropriate to further adjourn the hearing of the appeal.
2. The appeal is dismissed.
Supreme Court Rules 1987 (SA) r 31.02; Supreme Court Civil Rules 2006 (SA) r 76; Family Relationships Act 1975 (SA) ss 11A, 11B, referred to.
Fifteenth Eestin Nominees Pty v Rosenberg (2009) 24 VR 155; Sunlight Nominees Pty Ltd v Zotti [2017] SASC 176, considered.

SHEPHERD v COOPER & ANOR
[2019] SASC 138
Magistrates Appeal: Civil

DOYLE J: The appellant (Mr Shepherd) filed an appeal from a decision of a Magistrate granting judgment in favour of the respondents (Mr and Mrs Cooper) in the amount of $53,350 plus interest and costs. Prior to the hearing of the appeal Mr Shepherd died. Ms Wilkinson has brought an application seeking an order that she be substituted as the appellant in the capacity as personal representative of his estate.
Ms Wilkinson is not presently the personal representative of Mr Shepherd’s estate. She has commenced an action in the Magistrates Court seeking a declaration that she was Mr Shepherd’s domestic partner at the date of his death. She contends that if she is successful in obtaining that order she will be in a position to be appointed the personal representative of Mr Shepherd’s estate, or to otherwise take over the conduct of this appeal. She accepts that if she is not successful in obtaining that order then she will not have a basis for taking over the appeal.
There have been several directions hearings in this appeal. Ms Wilkinson seeks a further adjournment of the matter to enable her to pursue her claim for a declaration that she was Mr Shepherd’s domestic partner with a view to ultimately being in a position to take over the conduct of the appeal.
I am not satisfied that it is appropriate to further adjourn the hearing of the appeal. There are several reasons for this. They include the lack of merit in the proposed appeal, the uncertainty about the timing and prospects of success of Ms Wilkinson’s claim for a declaration that she was Mr Shepherd’s domestic partner at the time of his death, the unsuitability of Ms Wilkinson as a person to substitute as the appellant in these proceedings, and the prejudice and unfairness to the Coopers of the course sought by Ms Wilkinson given the nature and history of these proceedings.
For these reasons, elaborated upon below, I am satisfied that the appeal should be dismissed.
The proceedings below
The Coopers were the plaintiffs in the Magistrates Court. They brought a claim against Mr Shepherd seeking $53,350, being the outstanding purchase price for a prime mover that they alleged Mr Shepherd agreed to purchase from them. The context in which this purchase occurred was that Mr Shepherd had been a driver employed by the transport business operated by the plaintiffs but wished to purchase one of the plaintiffs’ trucks so that he could commence his own business.
The claim initially filed by the Coopers in June 2016 was drafted without legal assistance. However, they ultimately relied upon an amended statement of claim which was drafted with legal assistance.
By way of summary, the Coopers’ pleaded case was to the following effect:
·    The parties initially reached an agreement to sell the prime mover to Mr Shepherd in July 2015. The key terms of that alleged agreement were that Mr Shepherd agreed to pay $60,000 for the prime mover, but paid in instalments based upon a percentage of Mr Shepherd’s earnings whilst towing the plaintiffs’ trailers.
·    The parties then agreed to delay the implementation of this agreement to give Mr Shepherd further time to save the money necessary to buy the prime mover and start his own business.
·    In around November 2015, the parties varied the July 2015 agreement to include the purchase of a trailer (for an additional price of $60,000 for the trailer), with payments to be made through weekly instalments of $1,000.
·    In November 2015, Mr Shepherd took possession of the prime mover and trailer.
·    Over subsequent months Mr Shepherd made some payments to the Coopers (including one instalment of $1,000), but otherwise declined to adhere to the November 2015 agreement or confirm its existence or terms in writing.
·    In May 2016, the parties agreed to permit Mr Shepherd to surrender the trailer, and to reduce the weekly instalments to $500 to reflect this.
The Coopers claimed that Mr Shepherd was in breach of the purchase agreement, including by failing to make the payment instalments required. The Coopers claim the amount of $53,500 (representing the sum of $60,000 less various amounts received or credited by the Coopers).
In his defence, Mr Shepherd admitted the July 2015 agreement, but denied that he had failed to make the payments required of him. Indeed, he claimed to have made instalments totalling $16,600 over time. He alleged that the Coopers had made attempts (including in May 2016) to vary the agreement, but that he had refused to agree any of these variations. Mr Shepherd counterclaimed with allegations of breach by the Coopers, claiming lost income of $6,831 per month from May 2016 onwards.
The trial commenced in August 2017. It proceeded over eight sitting days, spread between August 2017 and June 2018. The evidence consisted primarily of oral evidence from the Coopers and Mr Shepherd, as well as some exhibits (consisting largely of written communications in relation to the alleged agreement).
The Magistrate delivered judgment in favour of the Coopers in November 2018. In his judgment, the Magistrate detailed at some length his reasons for accepting the evidence of the Coopers, and largely rejecting the evidence of Mr Shepherd. Having identified some of the inconsistencies between the evidence of the Coopers and Mr Shepherd, the Magistrate explained:
For the most part the differences of recollection are difficult to explain on the basis of genuinely mistaken recollection or reconstruction. Mr Shepherd’s evidence was given in terms which leave no doubt, that if he is believed, the Coopers acted towards him unfairly, if not unconscionably, and sought to take advantage of him in a number of respects. Mr Shepherd made a number of allegations, few, if any, of which were put to the Coopers, of behaviour by the Coopers towards him which could only be characterised as overbearing if not bullying, including threats or intimations of violence. His evidence included allegations of deceptive conduct on the part of the Coopers. There can be no doubt that his evidence was to the effect that the Coopers had sought to ride roughshod over his rights and interests for the purpose of their financial gain.
On my assessment nothing could be further from the truth.
It is my conclusion that the Coopers were witnesses of undoubted honesty and truth. Each of them sought to recall relevant events with as much accuracy as possible and succeeded in that respect.
I formed the opposite impression with respect to Mr Shepherd. Much of his evidence lacked believability on a number of grounds including inconsistency with what was likely to have occurred in the given circumstances. There were a number of instances where I believe his words did not match his actions, or inaction as the case may be. That is, his conduct at the relevant time did not match what he said in evidence had been agreed or discussed with the Coopers, or what he said was his understanding at the relevant time.
There were other occasions where I felt that hesitation or claimed lack of memory by Mr Shepherd was in fact an indication that he was not relying on honest recall and was being less than candid in his response.
Mr Shepherd’s evidence was replete with allegations of conduct on his part, or by the Coopers, none of which had been put to the Coopers, and with respect to which no corroborating evidence was produced although evidence of that nature was likely to have been available to him if it had been sought by Mr Shepherd.
The Magistrate then proceeded to identify several illustrations of the difficulties he had with the evidence of Mr Shepherd. At several points in his Honour’s reasons, and in relation to some critical matters, the Magistrate expressly accepted and preferred the evidence of the Coopers, or otherwise rejected the evidence of Mr Shepherd. It is unnecessary to catalogue these matters. The point is that the Magistrate’s reasons and approach were significantly influenced by his Honour’s findings of credit in relation to the three main witnesses in the trial.
By way of summary of the conclusions reached by the Magistrate, his Honour held:
·    No contract came into existence in July 2015. In particular, his Honour considered that the communications between the parties during July 2015 were not sufficient, or sufficiently clear, to give rise to a legally binding agreement. While acknowledging that the Coopers (and Mr Shepherd) had pleaded an agreement in July 2015, the Magistrate considered that the Coopers’ pleading reflected a measure of genuine misunderstanding on their part as to the status of their relationship with Mr Shepherd in the period of July to November 2015.[1]
·    In any event, even if a contract had come into existence in July 2015, this was of no consequence because, on his Honour’s acceptance of the Coopers’ evidence, any such contract was consensually abandoned or varied by further agreement between the parties in or about November 2015.[2]
·    The essential terms of the contract formed in November 2015 were that Mr Shepherd would purchase the prime mover and a trailer from the Coopers for $60,000 each, with payment to be made in weekly instalments of $1,000.[3]
·    At some time after 2 November 2015, Mr Shepherd sought a release from any obligation he otherwise had with respect to the trailer, which request was agreed to by the Coopers.[4]
·    Mr Shepherd failed to make any payments with respect to the prime mover other than those noted by Ms Cooper.[5]
·    On or about 23 May 2016, Mr Shepherd agreed to sign a contract to be prepared by Mr Cooper which would record an agreement for the hire and purchase of the prime mover on terms requiring payment by Mr Shepherd of 130 weekly payments of $500 and a residual payment of $1. A contract in the terms agreed was prepared and presented to Mr Shepherd, who then failed to sign it.[6]
·    The agreement that had been made back in November 2015, which had not in the interim been adhered to by Mr Shepherd, was thus consensually varied by a further agreement reached at a meeting in the offices of Mr Shepherd’s solicitors on 23 May 2016.[7]
·    At all times subsequent to 24 May 2016, Mr Shepherd wrongfully retained the prime mover for his own use and made no payments to the Coopers in respect thereof.[8]
[1]    At [68]-[69], [99].
[2] At [71].
[3] At [99].
[4] At [99].
[5] At [99].
[6] At [99].
[7] At [87].
[8] At [99].
The Magistrate held that, on the basis of these findings and conclusions, the Coopers were entitled to judgment for breach of contract in the sum of $53,350 (being $60,000 less payments made of $6,650).
The Magistrate dismissed Mr Shepherd’s counterclaim for reasons which are not challenged on appeal and hence which need not be summarised.
The proposed appeal
Mr Shepherd’s amended notice of appeal raises six grounds of appeal, in the following terms:
1.   The learned trial Magistrate erred in law by an interpretation of the letter of offer of 3 July 2015, which was not pleaded by either of parties to the proceeding and was not part of the trial.
Particulars
This raises two errors of law. No 1. the learned Magistrate had no authority by law to make such interpretation of the said letter. No 2. Even the learned Magistrate did have such authority the Appellant was not given opportunity to comment on such an interpretation.
2.   The learned trial Magistrate erred in law by misinforming himself in relation to the letter of offer of 3 July 2015 (P2).
Particulars
The learned Magistrate’s decision in relation to the said letter cannot be supported by the evidence admitted in trial, by the parties.
3.   The learned trial Magistrate erred in law by failing to take into account or give due weight to paragraphs 5-7 of the Plaintiffs’ (Respondents in this appeal) amended statement of claim (date filed: 31 July 2017).
Particulars
Those were cogent and relevant considerations and should have been taken into account as required by the rules.
4.   The learned trial Magistrates erred in reaching the decision on some facts in issue relying on the credit of the parties rather than take into account all other available evidence.
Particulars
This led to errors in finding of facts.
5.   The learned Magistrate erred in law by failing to take any, or any adequate account of substantial inconsistencies and contradictions in the Respondent’s case.
Particulars
This led to errors in finding of facts.
6.   The learned Magistrate erred in law by taking account of incorrect facts.
Particulars
This led to errors in conclusion drawn.
Prior to Mr Shepherd’s death, the respondents complained about the vagueness of Mr Shepherd’s grounds of appeal, particularly grounds 4 to 6. In response to these complaints I directed that Mr Shepherd file a summary of argument in respect of each ground, and indicated that the appeal would proceed on the basis that Mr Shepherd would be held to the articulation and particulars of the grounds in that summary of argument.
While the summary of argument did identify the matters complained of with some greater particularity, the contentions advanced in support of grounds 4 to 6 remained somewhat discursive.
It was after the filing of this summary of argument, but prior to the appeal being heard (or indeed the Coopers filing their summary of argument), that Mr Shepherd died. The appeal was adjourned on a couple of occasions to enable Mr Shepherd’s solicitor, Mr Smart, to consider the future course of the appeal.
Eventually Mr Smart informed the Court that while Mr Shepherd’s mother and daughter (as the only relatives of Mr Shepherd of whom the solicitor was aware) did not wish to pursue the appeal, he had instructions from Ms Wilkinson to seek her substitution as appellant to conduct the appeal. As this course was opposed, I directed that she file any application to this effect.
As well as Ms Wilkinson filing an application seeking substitution, the Coopers filed an application seeking various orders (including that the application and appeal be dismissed, or in the alternative that Ms Wilkinson provide security for the Coopers’ costs or that there be a freezing order).
Both of these applications came on for hearing before me.
Evidence in support of the parties’ applications
Ms Wilkinson and the Coopers each swore affidavits in support of their respective applications.
In her first affidavit, Ms Wilkinson said that she met Mr Shepherd on 10 July 2014 and that they “continued seeing one another until his death on May 12^th 2019”. She said that they lived together from September 2014 onwards, save for some short periods in September to October 2016, and February to March 2017. She described their relationship in very general terms. She said they became engaged in July 2017, but then ‘split up’ in December 2018. She said that despite having ‘split up’, they continued to see each other regularly and remained close. She suggested that the difficulties in their relationship related to Mr Shepherd being unwell, both physically and mentally. However, she said that “we knew this would settle and we would reconcile”. Indeed, she said that they were getting “back on track” two weeks before he passed away. They had decided she would move back in. Ms Wilkinson concluded her affidavit by asserting that the outcome of the appeal would affect her financially because she was Mr Shepherd’s domestic partner at the time of his death, and that as such she believed she was entitled to be his personal representative.
In her second affidavit, and presumably as a result of reading the affidavits filed by the Coopers (see below), Ms Wilkinson acknowledged that she had made a mistake in saying she met Mr Shepherd on 10 July 2014. She said that the “mistake happened because [Mr Shepherd] just passed away. I was severely depressed. I had to sort out the issue of the funeral of [Mr Shepherd]. I was distracted and not thinking clearly. Now that I have had time to think and clear my head, I am sure we met in July 2016.”
Ms Wilkinson also disclosed that she had a claim before the Magistrates Court for a declaration that she and Mr Shepherd were domestic partners. The affidavit did not elaborate upon the nature of, or basis for, her claim, or the status or progress of the proceedings.
Mr and Ms Cooper both filed affidavits. They both challenged (and set out the factual basis for doing so, including their knowledge of Mr Shepherd’s living arrangements) the suggestion in Ms Wilkinson’s first affidavit that she was in a relationship with Mr Shepherd from July 2014. They also set out their knowledge as to Mr Shepherd’s assets, which it would appear were limited and essentially worthless. They acknowledged that Mr Shepherd (or his estate) might in the future receive a personal injury compensation payment, but did not have any knowledge of the likelihood of this occurring, let alone the likely amount of any such payment.
They did not know whether Ms Wilkinson had sufficient assets to meet any costs order in their favour if they successfully resisted the appeal.
The Coopers both described the considerable financial burden upon them that these proceedings and the appeal represented. They have incurred legal costs of approximately $37,000 to the point of obtaining judgment in their favour. They have also incurred fees on the appeal of approximately $6,000.
Consideration
Ms Wilkinson’s application to be substituted as the appellant was expressed as brought under r 31.02 of the Supreme Court Rules 1987 (SA). This rule was expressed in general terms, and appears to have extended to permit the substitution of a person for a deceased party in an appeal. However, as the 1987 Rules are no longer in force, this rule cannot avail Ms Wilkinson.
Mr Smart, who appeared for Ms Wilkinson, accepted that there was no express power in the Supreme Court Civil Rules 2006 (SA) to substitute a person as appellant in the case of a death of an appellant.
Rule 76 addresses the death of a party to an “action” that has been commenced prior to the person’s death. It provides that the action is not invalidated by the person’s death, and under r 76(3) provides the Court with power to substitute the party’s person representative for the party (irrespective of whether probate or administration has been granted), or to appoint a representative of the estate for the purposes of the action. However, by operation of rules 4 and 28, “action” is defined in terms that expressly exclude an appeal.

Mr Smart was not able to identify any clear basis for the asserted power to substitute Ms Wilkinson as the appellant. He ultimately relied upon what he contended was the Court’s general law or inherent power to make such an order, but was not able to direct me to any authority in support of such a power. While he referred to Fifteenth Eestin Nominees Pty v Rosenberg,[9] the order in that case substituting the executor son for his deceased father as respondent to an appeal was made under an express power in the Supreme Court (General Civil Procedure) Rules 2005 (Vic). In the absence of any equivalent rule in the Supreme Court Civil Rules 2006 (SA), this authority is of no assistance to him.
[9] Fifteenth Eestin Nominees Pty v Rosenberg (2009) 24 VR 155.
Even accepting that the Court does have power to substitute a personal representative as a party to an appeal, I am not persuaded that it would be appropriate for me to further adjourn the present proceedings to enable Ms Wilkinson to pursue that course. As I indicated at the outset of my reasons, there are several reasons for this.
Lack of merit
The first reason is the lack of merit in the proposed appeal. Having not heard the appeal, it is not appropriate for me at this point to express any concluded view as to the merits of the appeal. However, I have had the benefit of the appellant’s summary of argument and some oral submissions from Mr Smart in relation to the merits of the appeal.
The first three grounds all challenge the Magistrate’s conclusion that the parties did not reach a legally binding agreement in July 2015. At the centre of the appellant’s challenge to this conclusion is the submission that the Magistrate erred in reaching such a conclusion when both parties had accepted the existence of such an agreement in their pleadings. In my view, this submission assumes too rigid or strict a role for the pleadings in litigation such as the present. While pleadings are an important consideration in setting the boundaries and framework for the determination of litigated disputes, their precise significance in a particular case depends upon the circumstances, including the manner in which the trial was conducted.
As I explained in Sunlight Nominees Pty Ltd v Zotti:[10]
There is no doubt that pleadings play an important role. They define the issues in the case, and in so doing provide the other party with notice of the case they have to meet. However, the pleadings are ultimately a means to an end. If the parties, in fighting their legal battles, choose to depart from the pleadings by shifting or expanding the battleground, then the parties will not usually be held to their pleadings. While prudence suggests that the parties should seek to amend their pleadings to reflect movements in their case, that is not always practical and does not always happen. Given the importance of the way in which the trial has been conducted, a failure to amend will not always be fatal to a party obtaining relief justified by the evidence at trial.
There is ample authority for the above statements of principle. They reflect, for example, the reasons of the High Court in Gould v Mount Oxide Mines Ltd,[11] Leotta v Public Transport Commission (NSW),[12] Dare v Pulham[13] and Water Board v Moustakas.[14] These authorities were applied by the Full Court of the Supreme Court of South Australia in Sands v Channel Seven Adelaide Pty Ltd.[15]
[10] Sunlight Nominees Pty Ltd v Zotti [2017] SASC 176 at [116]-[117].
[11] Gould v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 at 517.
[12] Leotta v Public Transport Commission(NSW) (1976) 9 ALR 437 at 446-447.
[13] Dare v Pulham (1982) 148 CLR 658 at 664.
[14] Water Board v Moustakas (1988) 180 CLR 491 at 497.
[15] Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [40]-[47].
Here, as often happens, the evidence and case of the Coopers departed in some respects from their pleadings. Mr Shepherd (through his counsel, Mr Smart) acquiesced in this, at least in the sense that he did not object to it. It does not appear to me that either party regarded itself, or the other party, as strictly bound by the pleadings at trial. In the circumstances, I am not satisfied that the Magistrate erred in considering it appropriate for him to reach his own view as to the status of the parties’ “agreement” in July 2015. Nor am I satisfied that the Magistrate erred in concluding that the evidence fell short of establishing a legally binding agreement at that point in time.
In any event, as the Magistrate himself noted, whether or not the parties’ July 2015 communications gave rise to a legally binding agreement was ultimately of no consequence. It was of no consequence to the Magistrate’s conclusions (nor to the Coopers’ pleaded claim) because ultimately those conclusions (and the Coopers’ pleaded case) relied upon the subsequent communications in November 2015 and May 2016. As the Magistrate held, even if there had been a contract formed in July 2015, that contract was abandoned or varied by reason of the subsequent agreement (and then variation) reached between the parties in those subsequent communications.
In his oral submissions, Mr Smart advanced a second pleadings–based challenge to the Magistrate’s reasons. The Magistrate concluded that the parties reached a variation to their initial November 2015 agreement during a 23 May 2016 meeting between the Coopers and Mr Shepherd at the offices of the latter’s solicitor. Mr Smart contended that his Honour was not permitted to, or erred, in reaching such a conclusion given an earlier letter from the solicitor (which asserted a different position), and the absence of any pleaded reference to the solicitor’s oral agreement to the variation in the Coopers’ amended statement of claim.
The submission about the letter lacks merit. The fact of an earlier assertion of a different position in correspondence is not inconsistent with a finding that there was subsequently an agreement reached in the terms found by his Honour. Similarly, I do not think there is any merit in the pleading point. While it might be accepted that the relevant communication should have been pleaded, the complaint goes nowhere in the present circumstances. Mr Shepherd did not object to the Coopers (in particular, Mr Cooper) giving evidence of the relevant conversation with Mr Shepherd’s solicitor on 23 May 2015. Further, even if objection had been taken, the only prejudice Mr Shepherd might have relied upon would have been the need for him to obtain an adjournment to seek instructions from (and potentially call as a witness in Mr Shepherd’s case) the solicitor. Yet, as Mr Smart frankly conceded in the hearing before me, as a result of the disjointed way in which the trial proceeded he ultimately did have time to, and did in fact, take instructions from that solicitor. He then made a considered decision not to call the solicitor as a witness (albeit in part because he wished to be paid for his time as a witness). In these circumstances, I do not think the pleadings complaint has merit.
In the course of oral submissions, Mr Smart appeared to concede that the appeal could be confined to the matters addressed above. To the extent that the remaining matters agitated in the notice of appeal and summary of argument have not been abandoned, I consider they also have very limited prospects of success. They are largely complaints about factual conclusions reached by the Magistrate in the course of his reasoning. To the extent any of them were critical to his Honour’s ultimate conclusions, they are all dependent to varying extents upon the Magistrate’s credit finding. As Mr Smart conceded, there is no realistic basis for contesting those findings on appeal.
Other matters
I am told that Mr Shepherd died intestate. Ms Wilkinson contends that if she is successful in obtaining a declaration that she was the domestic partner of Mr Shepherd as at the date of his death, then she would be entitled to be appointed as the personal representative of his estate (presumably as a result of a grant of letters of administration, or perhaps a more limited grant of administration ad litem). Conversely, she conceded that if she is unsuccessful in obtaining such a declaration then she would have no claim to be appointed personal representative, and no basis to seek substitution as the appellant in this matter. As a result of the latter, she conceded through Mr Smart that she was not presently in a position to press her application for substitution, but sought an adjournment pending the outcome of her claim in the Magistrates Court.
The difficulty with this proposed course is the uncertain prospects and timing of her Magistrates Court claim. Other than a statement that the claim has been lodged, and some very general evidence about Ms Wilkinson’s relationship with Mr Shepherd (as summarised above), there is no evidence to assist me in relation to the merits and timing of the Magistrates Court claim. Mr Smart was not able to give me any meaningful assistance because he is not acting for Ms Wilkinson in those proceedings and is not privy to any information about them.
It seems to me that there will be some obvious difficulties with the declaratory relief sought in those proceedings. Under s 11B(2) of the Family Relationships Act 1975 (SA), a declaration that someone was a domestic partner of a deceased person as at the date of their death requires satisfaction by the Court either (a) that the two people were, at the date of death, domestic partners within the meaning of s 11A, or (b) they were living together in a close personal relationship at the date of death and the interests of justice require that such a declaration be made. Under s 11A, and given that their relationship was neither a registered relationship nor productive of a child, it would seem that Ms Wilkinson and Mr Shepherd could only have been domestic partners as at the date of his death if they were living with each other as at that date in a close personal relationship, and had been doing so continuously for a period of three years immediately preceding that date or for an aggregate of three years out of the preceding four years.
On the evidence before me it is not even clear that Ms Wilkinson and Mr Shepherd were living together or in a close personal relationship at all as at the date of Mr Shepherd’s death, let alone that they had been doing so for the duration required by s 11A. While Ms Wilkinson initially claimed her relationship with Mr Shepherd commenced in July 2014, when challenged on this by the Coopers in their affidavits, she ultimately confined her evidence to a relationship commencing in July 2016. As Mr Shepherd died in May 2019, the parties cannot have been in a relationship that lasted for three years either continuously or in aggregate. I reject as untenable the submission by Mr Smart that the period following Mr Shepherd’s death might somehow be included in the assessment of the duration of their relationship.
There is the additional concern in this case as to the appropriateness of substituting Ms Wilkinson as the appellant even if she were ultimately to be appointed the personal representative of Mr Shepherd’s estate. It appears that the deceased estate will be of limited value. Whilst Ms Wilkinson would be personally exposed to an order that she pay the Coopers’ costs of the appeal if it is unsuccessful, she will not be able to meet any such costs order. Ms Wilkinson put forward no evidence of her financial position, but her counsel frankly conceded that I could proceed on the basis that she is impecunious and would not have the personal assets to meet any significant adverse costs order.
Mr Smart questioned the extent of the prejudice in that event to the Coopers, given the limited work remaining to be done in order to hear the appeal. While the work remaining to be done may be relatively limited, counsel for the Coopers would still be required to prepare a summary of argument, prepare more generally for the appeal, and then attend to argue the appeal. The remaining legal costs, particularly if there are further directions hearings awaiting the outcome of the proceedings in the Magistrates Court, are still likely to be material.
As well as this financial prejudice, it is appropriate to take account of the stress and inconvenience to the Coopers associated with these proceedings continuing to hang over their heads for an unknown period of at least some months, and potentially many months. Given the lengths to which they have already been put to obtain the judgment presently in their favour, I consider it undesirable that the Coopers be subjected to this continuing prejudice.
Conclusion
For the reasons set out above, I am not persuaded that it is appropriate to further adjourn the appeal and Ms Wilkinson’s application for substitution. I will thus make an order dismissing the appeal.