PETER SIMMONS	Plaintiff
v
JACQUELYN ANNE ROSS (as named executor of the estate of KIMLARN ELIZABETH SIMMONS) & ORS (according to the attached schedule)	Defendants

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2018
DATE OF JUDGMENT:	8 June 2018
CASE MAY BE CITED AS:	Simmons v Ross & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 306

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PRACTICE AND PROCEDURE – Application for summary judgment on the basis that causes of action are statute barred – Whether plaintiff’s claim has no real prospect of success having regard to whether the relevant limitation provision bars the claims – Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514.

LIMITATION OF ACTIONS – Administration action – Application by beneficiary of the will of the deceased pursuant to s 15 of the Administration and Probate Act 1958 (Vic) that an executrix named in the will prove the will or renounce – Alternatively the plaintiff be appointed administrator with will annexed – Plaintiff claims entitlement to personal property in the estate of the deceased (shares in a private company) – Whether executrix assented to a vesting in the plaintiff of the shares more than 15 years before commencement of proceeding – Whether claim to the personal property statute barred under s 22 of the Limitation of Actions Act 1958 (Vic) (‘LAA’) – Whether s 21 of the LAA applicable – In re Johnson; Sly v Blake (1885) 29 Ch D 964; Attenborough v Solomon [1913] AC 76; Meyeppa Chetty v Supramanian Chetty [1916] 1 AC 603; Ryan v Davies Bros (1921) 29 CLR 527; Ministry of Health v Simpson [1951] AC 251.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Sparke QC	Dellios West & Co
For the Defendants	Dr I J Hardingham QC with Mr S Wotherspoon	Arnold Bloch Leibler

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Summary of plaintiff’s claim....................................................................................................... 1

Summary of conclusions................................................................................................................... 2

The facts............................................................................................................................................... 2

Submissions........................................................................................................................................ 6

Defendants..................................................................................................................................... 6
Plaintiff’s submissions............................................................................................................... 11

Summary judgment principles...................................................................................................... 15

Consideration.................................................................................................................................... 16

What if the Will is not proved?................................................................................................. 16
When does the right to receive the share or interest accrue?............................................... 20
The title of Executor.......................................................................................................... 20
Assent.................................................................................................................................. 24

Section 21(1) of the LAA............................................................................................................. 34

Conclusion......................................................................................................................................... 35

HIS HONOUR:

Introduction

In this proceeding, the defendants apply for summary judgment against the plaintiff pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) on the ground that his claims are statute barred.[1] Alternatively, pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’)

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 Simmons v Ross

Details

AGLC: Simmons v Ross [2018] VSC 306
Case: [2018] VSC 306
Decision Date: 8 June 2018

CaseChat Overview and Summary

Simmons brought an application for summary judgment against Ross, seeking to establish the validity of a claim against Ross, the executrix of the will of Simmons' deceased brother, for personal property in the estate, specifically shares in a private company. The dispute hinged on whether the claim was statute-barred under section 22 of the Limitation of Actions Act 1958 (Vic). The matter was heard in the Supreme Court of Victoria.

The primary legal issue was whether the plaintiff's claim to the personal property was statute-barred. This required the court to consider whether the executrix had assented to a vesting of the shares in the plaintiff more than 15 years before the proceedings were commenced, and whether the claim was barred under section 22 of the Limitation of Actions Act 1958 (Vic). The court also had to determine whether section 21 of the Act was applicable, given the nature of the claim and the relevant legislative provisions.

The court found that the plaintiff's claim had no real prospect of success due to the limitation period stipulated by section 22 of the Act. The court concluded that the claim was indeed statute-barred as it had not been proved that the executrix had assented to the vesting of the shares in the plaintiff within the required timeframe. The court relied on several precedents, including In re Johnson; Sly v Blake and Ryan v Davies Bros, which supported the application of the limitation period in similar circumstances.

The court dismissed the plaintiff's application for summary judgment and held that the claim was statute-barred. Consequently, the plaintiff was not entitled to the personal property in question. The court's decision was grounded in the principle that the limitation period under section 22 of the Act applied to the claim, and the plaintiff had not demonstrated any circumstances that would warrant an exception to this rule.

Orders