South & Estate of South (deceased)
[2007] FamCA 1050
•19 June 2007
FAMILY COURT OF AUSTRALIA
| SOUTH & ESTATE OF SOUTH (DECEASED) | [2007] FamCA 1050 |
| FAMILY LAW – SUMMARY DISMISSAL – application by wife to set aside binding Financial Agreement previously entered into between the husband and wife – husband deceased – application by legal representative of husband to dismiss proceedings on basis of inadequacy of wife’s particulars of claim – particulars not intended to be formulation of wife’s claim – wife yet to formalise her claim – nothing to indicate wife’s claim without merit, frivolous or vexatious – application for summary dismissal dismissed. PRACTICE AND PROCEDURE – consideration of s 90 KA of the Family Law Act 1975 – reference to High Court Rules and procedure regarding use of Statements of Claim. |
| Family Law Act 1975 (Cth) s 90K & 90KA High Court Rules 2004 rr 20.01, 27.01, 27.03 & 27.04 |
| Lindon v Commonwealth (1996) 70 ALJR 541 |
| APPLICANT: | Mrs South |
| RESPONDENT: | The Legal Representative of the Deceased Husband Mr South |
| FILE NUMBER: | ADF | 915 | of | 2005 |
| DATE DELIVERED: | 19 June 2007 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | JR Forbes |
| HEARING DATE: | 17, 18 & 25 May 2007 & 7 June 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr B McQuade |
| SOLICITOR FOR THE APPLICANT: | Diane Myers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr R Richards |
| SOLICITOR FOR THE RESPONDENT: | Robinson Mason |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judicial Registrar Forbes delivered this day will for all publication and reporting purposes be referred to as SOUTH & ESTATE OF SOUTH (DECEASED).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 915 of 2005
| Mrs South |
Applicant
And
| The Legal Representative of the Deceased Husband Mr South |
Respondent
REASONS FOR DECISION
This application is brought by the legal representative of the deceased husband. It is brought by a Form 2A filed on 28th November 2006. It seeks the striking out of proceedings brought by the wife by way of a Form 1 on 9th May 2006. The Form 1 proceedings brought by the wife itself, in its amended form, seeks the setting aside of a binding Financial Agreement entered into between the husband and the wife and dated 1st October 2004.
The husband is deceased. His son, Mr M South, is now the legal representative. This was done by order made 16th November 2005. As it is, it is the application of the legal representative to strike out the wife’s initiating application. Subject to that application there are two further applications to consider being:-
(a)the wife’s Form 2 Application filed 9th May 2006 seeking orders for discovery and injunction; and
(b)the wife’s application filed 17th November 2006 seeking orders by way of injunction against the legal representative of the late husband: hereafter referred to a “the legal representative”.
Introduction
The Agreement, the subject of the wife’s application to set aside, is a Financial Agreement entered into under the provisions of Part VIIIA of the Family Law Act. It is a binding Financial Agreement made under the provisions of that Part.
The legal representative by application filed 28th November 2006 sought that the wife’s application be struck out. The basis of that application is that the wife had failed to furnish particulars in respect of her application within the time limit set by a consent order of 9th August 2006. I will set out the order in due course but it is sufficient to say for the present that it provided that the particulars were to be furnished within four weeks. The wife then filed the particulars on 14th December 2006. The legal representative maintains the application upon the basis that the particulars provided by the wife are inadequate. The delay is also referred to but not a matter pressed for the purposes of this argument.
General history
1992 The husband and wife commenced to cohabit.
1997The parties married. The husband had 3 adult children of his first marriage.
The wife had 1 adult son of her first marriage.
1.10.04Agreement pursuant to Part VIIIA signed by the parties.
13.10.04The parties separate.
29.10.04Husband gives Power of Attorney to son, Mr M South
24.6.05Wife files Form 1 for Property Settlement and Spousal Maintenance
16.10.05Husband dies.
History of proceedings
(a)24 June 2005
Wife files Form 1 Application for orders for settlement of property and periodic or lump sum spousal maintenance.
(b) 24 June 2005
Wife files Form 2 Application seeking orders by way of injunction against the husband as to his real and personal property and as to the interest of the husband or wife in the property and financial resources of
(i) R Pty Ltd
(ii) A Traders
(iii) The Husband or
(iv) The Wife
and urgent spousal maintenance of $350 per week.
(c)7 September 2005
Husband files Form 2A seeking that the wife’s Form 2 be struck out.
(d)7 September 2005 – ORDER
“UPON NOTING:-
(a)that it will be necessary for the husband to have a litigation guardian appointed for him;
(b)that it may be necessary for the involvement of various other legal entities and the husband’s son, [Mr M South], to be separately represented in these proceedings and that therefore [Mr M South] may not be an appropriate litigation guardian;
(c)that Mr Harris, on instructions from [Mr M South], has indicated that there is no immediate intention of selling any of the property referred to in the wife’s Form 1 Application filed on 24 June 2005 within the next few months
IT IS ORDERED:-
1.That leave be granted to the wife to amend her Form 1 Application filed on 24 June 2005 to include an application that the Financial Agreement between the parties dated 1 October 2004 be set aside.”
(e)20 October 2005
Wife files an Amended Form 1 application seeking a further order that the Financial Agreement between the husband and the wife date 1 October 2004 be set aside.
(f)16 November 2005 Order - Consent
“1.That the executor of the Estate of the late [Mr South], [Mr M South], be substituted for the deceased person as a party to the proceedings, pursuant to Rule 6.15(3) of the Family Law Rules.”
(g)9 May 2006
Wife files Form 2 Application seeking orders that the executor of the estate of the deceased husband do give discovery and that the discovery
“do specifically disclose all documents pertaining to
(a)The financial circumstances of the husband:
(i)at the commencement of cohabitation;
(ii)throughout cohabitation and marriage;
(iii) at the date at which the parties entered into the Financial Agreement;
(iv)at the date of separation; and
(b)The current financial circumstances of the estate including as to income and distribution of the estate.
(c)Any and all valuations, appraisals, estimates of value or rates notices or other such like documents pertaining to each of the various assets referred to in the First Schedule of the Financial Agreement dated 1 October 2004. …”
(h) 18 May 2006
The Legal Representative files a Form 2 seeking orders that the wife provide further and better particulars of her claim.
22 May 2006 - Order:
“NOTE The respondent’s offer to give discovery of the documents, the subject of annexure D to the wife’s affidavit filed on 9 May 2006 (document 16)”
That Wife’s Form 2 and Legal Representative’s Form 2A were otherwise adjourned to 5 June 2006.
(j) 5 June 2006 - Order
Form 2 and Form 2A adjourned to 9 August 2006 for argument.
(k) 9 August 2006 – Order - Consent:
“1.The Applicant Wife do provide further and better particulars of the Applicant’s claim that the Respondent has failed to disclose a material matter prior to or at the time that the parties executed a Binding Financial Agreement including but not limited to:
a)if it is claimed that the Respondent has not disclosed an asset, what asset is it that the Applicant claims was not disclosed;
b)if the Applicant claims that the Respondent has not disclosed the proper value of an asset, what is the asset and value that the Applicant says was not disclosed;
c)if the Applicant contends that either or both parties lacked capacity, a request is made for further and better particulars of which party it is claimed lacked capacity and if so, the basis of that claim
within twenty one [21] days of the date hereof.
That the legal representative for the deceased husband provide discovery within six [6] weeks thereafter.”
(l) 17 November 2006
Wife files Form 2 seeking
“UPON NOTING THAT THIS ORDER BINDS THE LEGAL REPRESENTATIVE IN HIS CAPACITY AS:-
A)EXECUTOR OF THE ESTATE OF THE LATE HUSBAND,
B)DIRECTOR AND SHAREHOLDER OF [R] PTY LTD
C)DIRECTOR AND SHAREHOLDER OF [R] PTY LTD AS APPOINTOR OF THE [I] TRUST
D)DIRECTOR AND SHAREHOLDER OF [R] PTY LTD AS TRUSTEE FOR THE [SOUTH] FAMILY TRUST
1. …
2. That until further order the legal representative be restrained and an injunction is hereby granted restraining him from damaging, destroying, transferring, assigning, selling, disposing of, dealing in, encumbering, leasing, gifting, concealing, removing, pledging, entering into any agreement concerning the ownership of, liquidation of or the wilful diminishing of or in any way wilfully affecting the interest of the wife or of the husband’s estate whether at law or in equity or at all either personally or via his servants or agents in the property and financial resources of:
i)[R] Pty Ltd
ii)[A] Traders;
iii)[South] Family Trust and The [I] Trust
iv)Assets of the husband’s estate
v)Any assets in which the husband had an interest at the date of his death which do not form part of his estate, or
vi)The Wife.
3. …
4. That within seven (7) days the legal representative do provide the wife’s solicitors with full written particulars and copies of source documents in support thereof of the sale, disposal of, transfer, assignment, encumbering, leasing, gifting, pledging, entering into any agreement concerning the ownership of, liquidation of or the wilful diminishing of any assets of the husband’s estate and any assets in which the husband had an interest as at the date of his death which do not form part of his estate.
5. That within seven (7) days the legal representative do provide the wife’s solicitors with a copy of the grant of Probate of the Will of the husband or of Letters of Administration of the husband’s estate (as the case may be) or if neither Probate nor Letters of Administration have been granted, a copy of the husband’s last Will.
…”
(m) 28 November 2006
Legal Representative files Form 2A for orders
a)opposing the orders sought by the wife on her Form 2 filed the 17th November 2006
b)the striking out of the wife’s Form 1 filed on 9 May 2006 (sic)
(I understand that the reference to the wife’s Form 1 is a reference to the Amended Form 1 filed by her on 20 October 2005. As can be seen, the wife did file a Form 2 on 9 May 2006, however, the argument has proceeded on the basis that the legal representative was seeking to have the wife’s Form 1 Application dismissed.)
c) the dismissal of the wife’s Form 2 filed 17 November 2006
…
(n) 28 November 2006 – Order:
Noting that the Legal Representative consents to his solicitors being the address for service for the purposes of the Form 2 Application filed 17th November 2006, as it relates itself to R Pty Ltd and its Directors and Shareholders
The Form 2 and Form 2A were otherwise adjourned to 18 December 2006.
(o) 14 December 2006
Wife files document – Particulars of Claim
(p) 18 December 2006 – Order:
Noting that counsel for the legal representative undertakes that the property, the subject of the wife’s Form 2 application by way of injunction (filed the 17th November 2006), will not be dealt with pending determination of the Form 2 and Form 2A.
Order for directions for the hearing and determination of the outstanding Form 2 applications.
(q) 17 May 2007
Hearing on argument as to the application by the Legal Representative for summary dismissal and of the wife’s application for injunction and discovery.
(r) 18 May 2007
Hearing concludes with the further notation “Counsel for the respondent undertakes that the respondent is to be bound in terms of paragraph 2 of the Form 2 filed on 17 November 2006 with liberty to counsel to apply to relist the matter if his instructions in that regard are in question”.
(s) 24 May 2007
Matter brought on for comment. Further consideration adjourned to 5 June 2007.
The Agreement
I annexe the Agreement. As can be seen, it was an Agreement which was intended to be entered into between the husband and wife under the provisions of Section 90C of the Family Law Act. I do not know that the actual terms of the Agreement of themselves, assist in the determination of the application of the legal representative. Ordinarily it might be expected that they would be of assistance because the Agreement is at the heart of the wife’s application. However, the matter has yet to advance to the point where the terms of the Agreement itself are of benefit, save perhaps in an understanding overall of what the wife’s claim is about.
It might be thought that a consideration of the application of the legal representative requires that sort of examination but I am not sure that that is so. The reason is that there is a question as to the stage at which the proceedings are at. The legal representative brings the application to strike out the wife’s application, her Form 1, at a time when the wife has yet to formalise her claim. To that extent the legal representative refers to and relies upon the Particulars of Claim as being the document which formalises what the wife’s claim is to be. There is a misunderstanding by the legal representative as to that matter. The legal representative overlooks that the order which required the giving of the particulars was an order made so as to provide a focus to the wife’s application for discovery. It was the order of the 9th August 2006. I gave short reasons at the time of making that order: that is the order that the wife give the particulars. I note it was a consent order and I am not sure in this situation why there was the need to provide reasons, but they are to hand and I believe they are helpful in establishing the context to the requirement as to the particulars. I said this:
”8. The wife is signalling that there is an issue about this but we are not to know that that is the only matter she would wish to rely upon. I feel confident that she would not want to be held to the matters to which she wants to argue. I think if discovery is to - when I say "discovery" I am saying discovery on the question of her application to set aside - if that is to be something that is to be given some boundary, then I think we need to know what the wife is saying about those matters in section 90K upon which she relies. Once we know that we can then deal with her application, whatever it might be. It might be she wants nothing more by way of discovery but it might be that she does want other documents. I do not think we should deal with these things piecemeal, not on this application to set aside. I think we ought to know all of what the wife is saying or wanting to say, only in the context of what we do about discovery.
9. I think that persuades me and it is a concession that the wife makes that she should give particulars. I think the wife, and her advisers, are also persuaded that it is something that has to be addressed. Mr McQuade says, "Well, surely we can have discovery at the same time" but I think that is not really giving us an answer to the things we want an answer to; that is, what it is that is being alleged, so that the door, as to what discovery is to be given, can be closed, or as closed as much as it is possible to deal with something like this at this stage.
10. I heard argument in this matter on 9 August 2006. I gave the short reasons abovementioned. Since then it has occurred to me that Section 90KA of the Family Law Act may be of greater assistance than what I first appreciated when considering its provisions on 9 August 2006.
11. I haven’t heard argument about this but it may be worthwhile to consider the provision in the context of the procedural remedies which it may afford. To this extent I understand it to be indicating that the procedures applicable in the High Court in the exercise by it of its original jurisdiction can be adopted. This would be such procedures in a claim as is based on contract or purported contract. I am happy to hear further argument on this question of what procedures are to apply. I recall that concern was expressed as to the lack of identification of the issues and as to a need for a pleading.
12. I am happy to hear argument about this. For this purpose I should indicate that either party is at liberty to seek to relist the matter.”
Well, I believe this is the answer to the matter. The wife was required to provide particulars as to the matters under Section 90K. The requirement under the order related itself to an alleged failure by the husband to disclose a material particular about the matters the subject of sub paragraphs 1(a), (b) and (c) of the order in circumstances where the order enabled the wife to provide particulars beyond that matter. Importantly, I believe the intention of the particulars was to create an ambit to the wife’s claim for discovery. The requirement to file the particulars was not intended to be the formulation by the wife of her claim.
I should also say, that contrary to that view which I had taken as to the status which should attach to the particulars, it is the wife who argues that the particulars should be regarded as the formulation by her of her claim and the husband who argues that the wife should be required to file a Statement of Claim: and notwithstanding this state of affairs, the legal representative proceeds with his application to strike out the wife’s Form 1. In these circumstances I should indicate that I have heard legal argument as to matters which as it transpires are of little application to the determination of the matter.
Law – Summary Dismissal
Justice Kirby in the High Court in Lindon & Commonwealth 1996 70 ALJR 541 at 544 summarised the principles applicable to an application for summary relief as follows:
”1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26 r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and
6 The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”
These principles have been variously adopted by this Court (see Bigg & Suzi [1998] FLC 92-799) which itself was quoted and adopted by the Full Court in Pelerman & Pelerman (2000) FLC 93-037 at page 87,582 as follows:
“(a)The power for summary dismissal is a discretionary one.
(b)Relief “is rarely and sparingly provided”.
(c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.
(f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings”.”
These principles have also been adopted in Beck & Beck(2004) FLC 93-181 at page 79,051 and most recently by Chief Justice Bryant in Bain Pacific Associations & Ors v & Kelly & Ors (2006) FLC 93-270.
In Bigg & Suzi (supra) it was the wife who was making the application for summary dismissal. The Full Court at paragraph 6.31 said “
“… she had no right to adduce any evidence at that summary hearing to contradict the evidence of the husband or to seek to contradict any inference which it might be submitted should be drawn from that evidence …”
That statement was adopted by the Full Court in Beck & Beck (supra).
As mentioned, the most recent decision was Bain Pacific Associations & Ors v & Kelly & Ors where the Chief Justice at paragraph 31 said:
“31.Secondly, and of particular relevance to an application for summary dismissal, once it is conceded that an order as sought is within power, the argument in support of summary dismissal is rendered extremely difficult.”
It was Mr McQuade, wife’s counsel, who by way of a list of authorities furnished the decisions abovementioned. Counsel for the legal representative chose not to provide a list of authorities nor did he wish to be heard in respect to the authorities, a somewhat inexplicable approach, I would have thought, in circumstances where it was the application of the legal representative that was seeking summary dismissal.
Two matters arise from these authorities which require consideration, namely:
(1)whether the wife’s application has merit needs to be determined upon the basis of the material which she puts forward; and
(2)the respondent, in this instance the legal representative, is not able to adduce any evidence at the hearing to contradict the evidence of the wife.
Does the wife’s application have merit?
As mentioned, I believe it is too soon for this question to be asked. As it is the wife has furnished particulars as to alleged misrepresentations by the deceased, particulars as to the deceased’s failure to disclose and particulars of the deceased’s unconscionable conduct. These are particulars in support of the claim that the Agreement is void, voidable and unenforceable.
The wife says that if contrary to her assertions, the Agreement is found to be of good force and effect, then it can be set aside under the provisions of Section 90K(1)(a) and 90K(1)(b) of the Family Law Act. For example, the wife points to the representations in the Deed that each of the parties was of good health. She says the Deed was signed on the 1st October 2004 and on the 24th October 2004 the husband signed a Power of Attorney in favour of the legal representative in circumstances where the wife now says that the husband was not of good health, not when he signed the Agreement nor subsequently. Her particulars contain allegations of significant ill-health suffered by both herself and the husband at the time the Agreement was entered into. As well as that, she says the Agreement was entered into under duress from the husband.
The wife further alleges that the husband breached a condition of the Agreement in that he destroyed and disposed of the items of property which pursuant to the said Agreement were to be retained by the wife and that in so doing, it became impractical for part of the Agreement to be carried out. It can be seen that the wife is alleging matters which she says would render the Agreement void or voidable. I understand her argument to be that if that were so, then the Agreement would be of no effect and no longer binding upon the parties. There are other matters as well which the wife alleges which she says will also lead to a finding that the Agreement is unenforceable.
The wife’s particulars of claim
If I am wrong in the view that I have taken as to the purposes for which the particulars were compiled, then it will be necessary to assess the application of the legal representative upon the footing that the particulars can be accepted as a substitute for a Statement of Claim. The answer to this question, I believe, comes from the High Court Rules. As mentioned in the reasons of the 9th August 2006, Section 90KA of the Family Law Act provides:
“The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:
(a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction;”
The reference to the resolution of the matter is how the High Court would resolve a claim in contract or purported contract in its original jurisdiction. This is a matter which ordinarily would commence by way of Writ of Summons in that Court (see Rule 20.01.4 – Proceedings in the Original Jurisdiction of the Court). The Writ of Summons is issued in accordance with Part 27 of the Rules. Part 27.01 provides the requirements for a Writ of Summons to be by way of a Form 20 which is to contain an indorsement setting out the nature of the claim made and the relief which the plaintiff seeks or a Statement of Claim. There is a requirement as to pleadings and in respect of every proceeding commenced by way of Writ of Summons, the plaintiff is required to file and serve a Statement of Claim (see Rule 27.03).
Under Rule 27.04 A Statement of Claim:
“(a) …
(b)shall contain in a summary form a statement of all the material facts on which the plaintiff relies, but not the evidence by which those facts are to be proved;
(c)where any claim arises by or under any Act, shall identify the specific provisions relied on; and
(d)shall contain the necessary particulars of any fact or matter pleaded, including:
(i) all particulars necessary to enable the opposite party to plead or to define the questions for trial or to avoid surprise at trial; and
(ii) particulars of any misrepresentation, fraud, breach of trust, wilful default or like matter; and
(e) shall state specifically the relief or remedy claimed.
If the High Court procedure were to be followed then the next step for the wife would be the requirement that she file a Statement of Claim. The assumption is that the wife would have obtained discovery of the documents necessary for her to formulate her claim and that she would be in a position to allege the material facts upon which she relies for the relief which she seeks. It would also be necessary that she particularise the relief which she does seek. The exercise as to discovery, unless there are other applications which the wife would wish to bring, may finalise the formulation of the wife’s claim. If further information is to hand or decisions taken that the claim is to be re-formulated then it would be necessary for the wife to seek to amend her Statement of Claim or file a further Amended Statement of Claim. Even then “When pleadings bring the parties to the issue, the court’s function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at trial without amendment of the pleadings” (Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 92 ALR 53 at 59 per Brennan J) – see Butterworths Practice & Procedure High Court and Federal Court of Australia generally at pages 15,701 to 15,707.
Suffice it to say at this time there is nothing in the wife’s particulars of claim that suggest that her claim is lacking in merit or that it is otherwise frivolous or vexatious. Indeed as mentioned, the wife argued that it was the Particulars of Claim which can be used as the means by which her claim is formulated. That is an argument for another day.
The application by the legal representative for summary dismissal should be dismissed. The legal representative misconceives the principles which apply in the determination of his application. He has argued that the wife has failed to be specific in the matters upon which she relies to set aside the Agreement. There would ultimately be a requirement for the wife to be specific but there is nothing which the wife says at this time that suggests that her claim is without merit. It is a matter then of dismissing the Form 2A of the Legal Representative filed the 28th November 2006.
Before leaving the issue I should mention 2 further matters. The first is that the legal representative has yet to heed the cautionary comments of the Deputy Chief Justice made the 7th September 2005: see paragraph 6(d) above. Mr M South has the following duties and responsibilities. He is:-
(a)the legal representative in this action;
(b)the executor named in the will of the late husband;
(c)the surviving director of R Pty Ltd which is the trustee of the 2 trusts mentioned in the Agreement. It is said on behalf of the legal representative that he is also the sole appointer of these trusts but that is not a conceded position.
The legal representative for the purposes of the argument has taken a position that upon death, the husband ceased to be the appointor, and a director of the trustee company which was the registered proprietor of the land upon which certain businesses were conducted: that they were discretionary trusts and that there is no interest which devolved upon death to the husband as a beneficiary of the trusts. I have not heard argument about the duties of executors in respect of the property of a deceased estate but I would have thought that the legal representative as the executor named in the husband’s will, would have an obligation to ascertain the property of the husband. It is in this capacity as the executor, I would have thought, that the court would expect the legal representative to take whatever position is to be taken for the purposes of these proceedings. I think difficulties arise when to the question: “What has become of the property of the husband as alleged in the Agreement?” we are met with an answer which comes from the person who purports to have received that property. This is not a matter which relates itself to the determination of the principal argument, because under the authorities that needs to be considered by reference to the merits of the claim itself. Nonetheless I believe it is a matter which the legal representative should address.
The second matter is that the legal representative has yet to file a Form 1A Response. The point was not taken during argument. Again it is something which the legal representative needs to give his attention.
It is necessary then to go to the wife’s Form 2 Application filed the 9th May 2006 where she seeks orders for discovery and injunction and her application of the 17th November 2006 where she seeks orders by way of injunction [see paragraphs 6(g) and 6(l)].
Discovery
The order made the 9th August 2006 provides for discovery to be given within six [6] weeks of the particulars having been filed. The particulars were filed on the 14th December 2006. Discovery by the legal representative remains due. It needs to be remembered that I intended that exercise to be undertaken for the purposes of the wife formulating her claim. Further discovery may still be of relevance.
Injunctions
The wife’s application is particularised in paragraph 6(l). It is her application filed the 17th November 2006. Counsel for the legal representative, as noted, has on 3 occasions (see the notations to the orders of the 7th September 2005, 18th December 2006 and the 18th May 2007) intimated that the legal representative will not without notice attempt to deal with the real and personal property, the subject of the Deed. Given that the application for summary dismissal is itself to be dismissed, I would not understand that this is an argument which is to be pressed. I will give liberty to relist in the event that it is.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for decision of Judicial Registrar Forbes.
Associate:
Date: 19.6.07
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