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Smith v Partridge

Smith v Partridge

Case [2018] WASC 128 19 April 2018

Probate

Executors

Revocation of Probate

Costs

Indemnity Costs

Succession Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SUZANNE DALE SMITH by her next friend the Public Trustee -v- MARION KATHRYN PARTRIDGE as executor of the Estate of Thomas Smith [2018] WASC 128
CORAM:   PRITCHARD J
HEARD:   19 APRIL 2018
DELIVERED          :   19 APRIL 2018
FILE NO/S:   CIV 2936 of 2016
BETWEEN:   SUZANNE DALE SMITH by her next friend the Public Trustee
Plaintiff
AND
MARION KATHRYN PARTRIDGE as executor of the Estate of Thomas Smith
First Defendant
MARION KATHRYN PARTRIDGE as beneficiary of the Estate of Thomas Smith
Second Defendant

FILE NO/S: CIV 1014 of 2018
BETWEEN: SUZANNE DALE SMITH by her next friend the Public Trustee
Plaintiff
AND
MARION KATHRYN PARTRIDGE as executor of the Estate of Thomas Smith
First Defendant
MARION KATHRYN PARTRIDGE as beneficiary of the Estate of Thomas Smith
Second Defendant

Catchwords:

Probate - Executors - Application for revocation of probate - Where failure to administer the estate - Where failure to communicate with the beneficiaries of the estate and the Court in a clear or timely manner

Costs - Indemnity costs - Where failure to communicate with the other party and the Court in a clear or timely manner

Legislation:

Nil

Result:

Contempt proceedings dismissed
Application for revocation and reissue of grant of probate granted
Costs orders made

Category: B

Representation:

CIV 2936 of 2016

Counsel:

Plaintiff	:	Mr M Curwood
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Public Trustee
First Defendant	:	No appearance
Second Defendant	:	No appearance

CIV 1014 of 2018

Counsel:

Plaintiff	:	Mr M Curwood
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Public Trustee
First Defendant	:	No appearance
Second Defendant	:	No appearance

Case(s) referred to in decision(s):

Elovalis v Elovalis [2008] WASCA 141
Estate of Rogers v Rogers [2009] WASC 358
Porteous v Rinehart (1998) 19 WAR 495

PRITCHARD J:

(These reasons were delivered extemporaneously on 19 April 2018 and have been edited from the transcript.)

In these reasons, I deal with an action commenced by the plaintiff by writ (in CIV 1014 of 2018), and an application commenced by chamber summons for contempt orders against the first defendant (in CIV 2936 of 2016).
In CIV 1014 of 2018, the relief sought by the plaintiff is, in broad terms: the revocation of the grant of probate of the estate of Thomas Smith made by the Court on 18 September 2015 to the first defendant, who is the executor appointed under that will; the removal of the trustee (pursuant to s 77 of the Trustees Act 1962 (WA)), the appointment of the Public Trustee in her place, and the vesting of all assets so held in the Public Trustee, including significantly, a property in Yokine (the property); an order that the first defendant pay the plaintiff's costs of the action, without any recourse to indemnity from the estate or trust assets; and a further order for liberty to apply with respect to the implementation…

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 Smith v Partridge

Details

AGLC: Smith v Partridge [2018] WASC 128
Case: [2018] WASC 128
Decision Date: 19 APRIL 2018

CaseChat Overview and Summary

Smith v Partridge involved a dispute over the administration of the estate of Mr Thomas Smith, the deceased. The plaintiff, one of the daughters of the deceased, sought revocation of the probate obtained by the first defendant, the other daughter and executor of the deceased's will, due to alleged failure to administer the estate and communicate with the beneficiaries and the Court. The plaintiff argued that the first defendant had transferred the estate's property to herself and had failed to comply with orders to produce the original grant of probate. The case also involved an application for costs in the contempt proceedings initiated by the plaintiff.

The court was required to determine whether the first defendant's conduct warranted the revocation of the grant of probate, given her failure to administer the estate properly, communicate with the beneficiaries, and comply with court orders. The court also had to consider whether the first defendant's conduct in the contempt proceedings justified an award of indemnity costs to the plaintiff.

In its decision, the court found that the first defendant had failed to administer the estate properly, communicate with the beneficiaries and the Court, and comply with court orders. The court revoked the grant of probate and ordered the first defendant to surrender all documents relating to the estate and provide a full accounting of the estate's assets. The court also found that the first defendant's conduct in the contempt proceedings was unsatisfactory, and awarded indemnity costs to the plaintiff.

The court ordered the first defendant to surrender all documents relating to the estate, provide a full accounting of the estate's assets, and pay the plaintiff's costs of the contempt proceedings on an indemnity basis.

Orders

Orders of the court

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Background

Background to the litigation

The facts in respect of CIV 1014 of 2018, and those which also bear upon the application for costs in the contempt proceedings The Public Trustee is the plenary administrator of the estate of the plaintiff, pursuant to an order made by the State Administrative Tribunal in 2014. The plaintiff is one of the daughters of Mr Thomas Smith, the deceased. The first defendant is the other daughter of the deceased. The deceased made a will and the first defendant, who is the executor appointed under that will, obtained a grant of probate of the will on 18 September 2015. By an application in CIV 2936 of 2016, pursuant to the Family Provision Act 1972 (WA), the plaintiff (by her next friend, the Public Trustee) sought, and was granted, an order to vary the will so as to make provision for the plaintiff out of the will. In order to give effect to that order, the Master made an order on 17 February 2017 that the first defendant produce to the Probate Registry of this Court the original grant of probate with the will annexed. Before dealing with some of the facts arising from the Master's order, I digress to observe that, in respect of the estate, the assets of the estate comprise the property, some cash in the bank and a residency bond. The information presently available indicates that the first defendant has transferred the property to herself in her capacity as the executor of the will, as she is described on the title to the property (under her maiden name, Marion Katherine Smith). Following the orders made by Master Sanderson varying the will of the deceased, the plaintiff, on numerous occasions, sought to enforce the order made by the Master that the first defendant produce to the Probate Registry the original grant of probate. That order was not complied with by the first defendant. In September 2017, the plaintiff filed the chamber summons in the contempt proceedings seeking orders that the first defendant was in contempt of the order made by the Master, and ancillary orders. Since that time, there have been further orders made by the Court seeking to secure the first defendant's compliance with the requirement to deliver up the grant of probate. The first defendant has failed to make an appearance, or to appear in the contempt proceedings. Information provided to the Court by the process server suggests that, on occasion, the first defendant has sought to evade service of the orders of the Court. It must be said that the manner in which the first defendant has responded to the contempt proceedings has been wholly unsatisfactory. Information provided by the first defendant to the process server and through a third party to the Court has provided inconsistent information as to whether she has the original grant of probate. Initially, it appeared that the first defendant claimed that she had complied with the order of the Master, but more recent information has suggested that the first defendant has lost the original grant of probate, and that she 'threw out' the grant of probate inadvertently when she cleaned out her home.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Smith v Partridge [2018] WASC 128

Most Recent Citation

Re Banning; Ex Parte Banning [2018] WASC 313

Cases citing this decision · 12 of 12 shown

Poland v Poland as Administrator of Estate of K N Poland
[2025] WASC 380 Para 2

…istently neglected or refused to carry out due administration of the estate.[3] [2] Estate of Rogers v Rogers [2009] WASC 358 [25]; Smith v Partridge [2018] WASC 128 [26]. [3] Estate of Rogers v Rogers [2009] WASC 358 [25] - [29].…
McCullough v Haigh as Executor
[2025] WASC 352 Para 2

…Mattingly [2025] WASC 297 [23] (Gething J) ( Nicholl ); Re Banning; Ex Parte Banning [2018] WASC 313 [33] (Vaughan J) ( Banning ); Smith v Partridge [2018] WASC 128 [25] (Pritchard J) ( Smith ) [26]; Rogers [22] - [23]; Porteous v Rinehart (1998) 19 WAR 495, 505 - 506 (White J). [24] Nicholl [23]; Banning [34].…
Moylan v Sims
[2025] WASC 349 Para 4

…hy Joyce McFarlane [2023] WASC 336 [67] - [70] (Strk J); Re Banning; Ex Parte Banning [2018] WASC 313 [33] (Vaughan J) ( Banning ); Smith v Partridge [2018] WASC 128 [25] - [26] (Pritchard J) ( Smith ); Rogers v Rogers [2009] WASC 358 [22] - [23] (EM Heenan J) ( Rogers ); Fairburn [5], [28]. [11] See also: Re Leop…
Nicholl v Mattingly
[2025] WASC 297 Para 4

…nt to the setting aside of a court order so the power to do so is not exercised as of course or as of right.[17] [16] Banning [33]; Smith v Partridge [2018] WASC 128 [25] (Pritchard J) ( Smith ) [26]; Rogers v Rogers [2009] WASC 358 [22] - [23] (EM Heenan J) ( Rogers ). AA s 29 is another potential power, though t…
Cardaci v Cardaci
[2023] WASCA 158

…[2015] NSWCA 156; (2015) 89 NSWLR 431 Short v FW Hercus Pty Ltd (1993) 40 FCR 511 Smith v NSW Bar Association (1992) 176 CLR 256 Smith v Partridge [2018] WASC 128 Sproule v Sproule [2009] NSWSC 152; (2009) 2 ASTLR 80 Stephens v The Queen (1978) 139 CLR 315 Tokio Marine & Nichido Fire Insurance Co Ltd v Holgersson…
In the Matter of the Estate of Linda Valerie Kidd (Dec'd)
[2023] WASC 394 Para 1

…e of Rogers v Rogers) ; Suzanne Dale Smith by her next friend the Public Trustee v Marion Kathryn Partridge as executor of the Estate of Thomas Smith [2018] WASC 128 [25] ( Smith v Partridge) ; In The Estate Of Diane Carol Collison v Collison [2023] WASC 32 [51].…
In the Matter of the Estate of Assunta Maria Nesci (Dec'd)
[2023] WASC 213 Para 1

…e of Rogers v Rogers) ; Suzanne Dale Smith by her next friend the Public Trustee v Marion Kathryn Partridge as executor of the Estate of Thomas Smith [2018] WASC 128 [25] ( Smith v Partridge) ; In The Estate Of Diane Carol Collison v Collison [2023] WASC 32 [51].…
Bernard Henricus Lamers as trustee for the Ben and Debra Lamers Family Trust v Arvind Pty Ltd [No 3]
[2023] WASC 30

…92 Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39 Scaffidi v Montevento Holdings Pty Ltd [2011] WASCA 146; (2011) 6 ASTLR 446 Smith v Partridge [2018] WASC 128 Spellson v George [1992] NSWCA 254; (1992) 26 NSWLR 666 Thorne v Heard [1895] AC 495 Watson v Foxman (1995) 49 NSWLR 315 YZ Finance Co Pty Ltd v Cumm…
In The Estate Of Diane Carol Collison v Collison
[2023] WASC 32 Para 5

…Rogers [2009] WASC 358 [23] - [31] (E M Heenan J), and the authorities cited therein. Rogers was followed in, amongst other cases, Smith v Partridge [2018] WASC 128 (Pritchard J). See also Porteous v Rinehart (1998) 19 WAR 495, 504 - 506 (White J) in relation to the removal of an executor.…
Re Estate of Barry Nelson Watkins;
[2021] WASC 193 Para 1

…is court.[11] [9] The Estate of Erminia Agnes Rogers v Rogers [23]. [10] The Estate of Erminia Agnes Rogers v Rogers [23]. [11] See Smith v Partridge [2018] WASC 128 [26]; Re Banning [2018] WASC 313 [37]; Re Estate of Joseph William Stewart [2020] WASC 385 [17].…
Hastings v Hastings
[2020] WASC 209 Para 10

…anning; Ex Parte Banning [17] ‑ [18] citing The Estate of Erminia Agnes Rogers v Rogers [15] ‑ [16], [22], [28] ‑ [29], [34]; Smith v Partridge [2018] WASC 128 [25].…
Re Banning; Ex Parte Banning
[2018] WASC 313 Para 15

…A). [3] [2] Estate of Rogers v Rogers [2009] WASC 358 [15] ‑ [16], [34]. [3] Estate of Rogers v Rogers [22], [28] ‑ [29], [31]; Smith v Partridge [2018] WASC 128 [25].…

View all 12 citing cases →

Cases cited in this decision · 3 of 3 shown

Swansdale Pty Ltd v Whitcrest Pty Ltd
[2010] WASCA 129 Para 2

…order will constitute an appropriate sanction marking the disapproval of the Court for improper or unreasonable conduct. [4] Swansdale v Whitcrest [2010] WASCA 129(S).…
The Estate of Erminia Agnes Rogers v Rogers
[2009] WASC 358 Para 2

…of revocation is to ensure the due and proper administration of the estate, and of the interests of the beneficiaries. [1] Estate of Rogers v Rogers [2009] WASC 358.…
Elovalis v Elovalis
[2008] WASCA 141 Para 3

…facts. It is a matter of what is best for the welfare of the beneficiaries and of the estate as a whole.[2] [2] See, for example, Elovalis v Elovalis [2008] WASCA 141 [30], [31].…

Legislation cited in this decision · 4

Family Provision Act 1972 (WA)
1 mention (from Para 2)
Legal Profession Act 2008 (WA)
1 mention (from Para 3)
Supreme Court Act 1935 (WA)
1 mention (from Para 1)
Trustees Act 1962 (WA)
1 mention (from Para 2)