Smith v Smith - [2017] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SMITH v SMITH
[2017] SASC 126
Judgment of Judge Roder a Master of the Supreme Court
29 August 2017
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - JOINDER OF PARTIES
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
Application for the re-joinder of a party to the proceedings and permission to file a second summons and statement of claim.
Inheritance (Family Provision) Act 1972 ; Supreme Court Act 1935 s 27, referred to.
Zerella v Zarella [2014] SASC 100; Tyne v UBS AG (No 2) [2017] FCAFC 5; Re: Dowling [2013] NSWSC 1040; Lucas v Konakas [2014] NSWSC 786; In re: Kuhl [1933] SASR 394, considered.

SMITH v SMITH
[2017] SASC 126

This action commenced on affidavits. On 17 May 2016 Judge Bochner ordered that it proceed on pleadings. A statement of claim (FDN19) was filed on 15 July 2016. Objections were taken. There was an application to amend and an application by the defendants to strike out.
On 15 February 2017 Judge Bochner ordered that two parties – Lachmarden Pty Ltd and Dema Vista Pty Ltd (“Dema Vista”) be disjoined.
Her Honour refused the amendment that had been proposed but gave permission to the plaintiff to file a second statement of claim.
The matter has now been before the court on a further five occasions. One adjournment was occasioned by a suggestion of mine that has been shown not to have been helpful. Currently before me is FDN38, which is the plaintiff’s application:
1.   To re-join Dema Vista.
2.   To join Adam Brooke Smith.
3.   For permission to file a second summons and second statement of claim.
The proposed second summons and second statement of claim are respectively FDN36a and FDN36b.
The application is opposed by the defendant and by Dema Vista. The first basis of opposition to the re-joinder of Dema Vista is that the application is made for an improper ulterior purpose, namely to obtain information and documents which the plaintiff has unsuccessfully sought previously and is not entitled to in this action.
I am not persuaded that the evidence makes that good. Further, even if that is the ambition of the plaintiff any such risk can be controlled by orders about disclosure of documents.
As I understood the submissions, it was agreed that Mr Adam Brooke Smith should be joined as a defendant (indeed, Judge Bochner indicated in her reasons that that joinder is necessary). Mr Stevens for the defendant submitted that Adam Brooke Smith should be joined in two separate capacities – both as executor and as beneficiary. I do not think that that is correct. The proposed pleading identifies Mr Adam Brooke Smith as being both an executor and a beneficiary. That is all that is required by Rule 314(10). It is not necessary that he be identified in both capacities in the summons. As a defendant…

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 Smith

Details

AGLC: Smith v Smith [2017] SASC 126
Case: [2017] SASC 126
Decision Date: 29 August 2017

CaseChat Overview and Summary

In the case of Smith v Smith, the dispute involved the interpretation and application of the Supreme Court Rules of South Australia, specifically concerning the joinder of parties and the amendment of proceedings. The defendant, represented by Mr Stevens, argued that it was not necessary to re-join a party, Dema Vista, as they could be bound by the judgment under Rule 245. This rule allows the court to extend a judgment to a non-party involved in the administration of an estate, a trust, or a property transaction. Additionally, Mr Stevens contended that the modern understanding of abuse of process could prevent Dema Vista from disputing the outcome if they were aware of the proceedings but chose not to participate.

The legal issues before the court included whether Rule 245 could be applied in the context of an application under the Inheritance (Family Provision) Act and whether Dema Vista could be prevented from disputing the outcome based on the abuse of process doctrine. The court had to determine if the action constituted "an action involving the administration of the estate of a deceased person" as per Rule 245 and if the established probate practice supported Mr Stevens's interpretation of the rule.

The court rejected Mr Stevens's arguments, holding that the action did not involve the administration of the estate and thus Rule 245 was inapplicable. The court also clarified that Rule 245 is a post-judgment procedure and should not compel plaintiffs to proceed without joining necessary defendants in the hope of a subsequent order. Furthermore, the court noted that the established probate practice for binding non-parties involved citation to appear, not an application post-judgment. Consequently, the court did not accept the argument that Dema Vista could be prevented from disputing the outcome based on abuse of process.

In conclusion, the court ordered that Dema Vista must be re-joined as a defendant in the proceedings, and the application to amend the proceedings to bind Dema Vista by the judgment was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before me, Mr Stevens for the defendant, relied on issues which had not been considered in Zarella and which were not agitated before Judge Bochner. First, Mr Stevens sought to rely on Rule 245. That rule provides:245—Extension of judgment to bind non-party(1)The Court may, on application by a party to an action involving the administration of the estate of a deceased person, the administration of a trust, or a transaction or proposed transaction relating to property, order that a judgment in the action extend to a person who was not a party to the action at the time judgment was given.(2)The Court must allow the person to be bound by the judgment a reasonable opportunity to be heard on the application. Mr Stevens argued that it is not necessary for Dema Vista to be re-joined as, in the event that the plaintiff’s contention as to the debt is successful, an order could be made under Rule 245 binding Dema Vista to the judgment. Next, Mr Stevens argued that the modern understanding of abuse of process is such that a person who is aware of proceedings but does not participate in them may be prevented from disputing the outcome in subsequent proceedings. Mr Stevens relied on cases such as Tyne v UBG AG (No 2),[2] Re: Dowling,[3] and Lucas v Konakas.[4][2] [2017] FCAFC 5.[3] [2013] NSWSC 1040.[4] [2014] NSWSC 786. The point that was sought to be made was that Dema Vista is on notice of the proceedings and chooses not to be a party. In those circumstances, Mr Stevens submitted, Dema Vista would be prevented from disputing the outcome of the proceedings and so need not be joined as defendant. I do not accept that an application for provision out of an estate under the Inheritance (Family Provision) Act is “an action involving the administration of the estate of a deceased person”. I do not think that Rule 245 could be applied in the way suggested by Mr Stevens. No question of administration arises in the action. It is true that the outcome of the action will have an effect on how the estate is administered, but that does not, in my opinion, mean that the action involves the administration of the estate. In any event, I consider that Mr Morcombe QC’s submission is correct. The Rule is a post-judgment procedure. A plaintiff who wishes to – and is otherwise entitled to – join a defendant to the existing proceedings should not be forced, by the existence of this Rule, to proceed without that defendant, in the hope that, having achieved a judgment in the action, a further order will be made in its favour under Rule 245.[5][5] I respectfully agree with the commentary in Civil Procedure South Australia in respect of the predecessor of the Rule – [REP r 85.03.5]. Mr Stevens described as the procedure under Rule 245 as being based on an “established probate precedent”. I do not accept that submission. The established probate practice in South Australia for binding non-parties to an outcome involves the citation to see proceedings. The procedure is described by Napier J in In re: Kuhl.[6] There was never a probate requirement for an application subsequent to judgment for an order binding non-parties. [6] [1933] SASR 394.

Ratio Decidendi

Legal Principle Established

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