Syme v Arthur Metaxas as Executor of the Estate of Norman Frank Monck

[2005] WASC 152

SYME -v- ARTHUR METAXAS as Executor of the Estate of NORMAN FRANK MONCK [2005] WASC 152

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 152
Case No:	CIV:1349/2005	Heard:	2 JUNE 2005
Coram:	MASTER SANDERSON	Delivered:	7/07/05
No of pages:	7	Judgment Part:	1 of 1
Result:	Application adjourned pending outcome of application to set aside adoption order
Category:	B
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Parties:	HELEN WENDY JEAN SYME ARTHUR METAXAS as Executor of the Estate of NORMAN FRANK MONCK
Catchwords:	Practice and procedure Application to strike out claim Turns on own facts
Legislation:	Adoption Act 1994 (WA), s 77 Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6
Case References:	Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (dec) (2000) 22 WAR 331 Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12 Dalgety Australia Ltd v Rubin, unreported; SCt of WA (Burt CJ); Library No 5485; 24 August 1984 Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490 Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411 Lord Sudeley v Attorney-General [1897] AC 11 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re Pevsner; Ex parte Trustee in Bankruptcy (1983) 68 FLR 254 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SYME -v- ARTHUR METAXAS as Executor of the Estate of NORMAN FRANK MONCK [2005] WASC 152 CORAM : MASTER SANDERSON HEARD : 2 JUNE 2005 DELIVERED : 7 JULY 2005 FILE NO/S : CIV 1349 of 2005 BETWEEN : HELEN WENDY JEAN SYME

Plaintiff

AND

ARTHUR METAXAS as Executor of the Estate of NORMAN FRANK MONCK
Defendant

Catchwords:

Practice and procedure - Application to strike out claim - Turns on own facts

Legislation:

Adoption Act 1994 (WA), s 77

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6

Result:

Application adjourned pending outcome of application to set aside adoption order

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr N D Billington
Defendant : Mr P G McGowan

Solicitors:

Plaintiff : Cahill Billington
Defendant : Benari & Co

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

Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (dec) (2000) 22 WAR 331

Case(s) also cited:

Commissioner of Stamp Duties (Qld) v Livingston (1964) 112 CLR 12
Dalgety Australia Ltd v Rubin, unreported; SCt of WA (Burt CJ); Library No 5485; 24 August 1984
Glenn v Federal Commissioner of Land Tax (1915) 20 CLR 490
Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411
Lord Sudeley v Attorney-General [1897] AC 11
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Pevsner; Ex parte Trustee in Bankruptcy (1983) 68 FLR 254
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514


(Page 3)

1 MASTER SANDERSON: By originating summons dated 24 March 2005, the plaintiff made application pursuant to s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA) ("the Act") for provision out of the estate of the late Norman Frank Monck ("the deceased"). By chamber summons dated 18 April 2005 the defendant sought to have the plaintiff's application struck out. The basis upon which the defendant seeks to have the plaintiff's claim struck out can be shortly stated.

2 The plaintiff was born on 29 April 1946. She says that she is the illegitimate daughter of the deceased. On 17 July 1946 the plaintiff was adopted. It is conceded by the plaintiff that the effect of this adoption is that she does not fall within those persons mentioned in s 6 of the Act and cannot make a claim against the estate of the deceased. She is presently applying for the adoption order to be discharged pursuant to s 77 of the Adoption Act 1994 (WA). The plaintiff's application to have the adoption set aside is listed for trial on 12 July 2005.

3 It is the plaintiff's position that the defendant's application should be adjourned. It was submitted on her behalf that if the application to have the adoption set aside failed, then there would be no answer to the defendant's strike-out application. Alternatively, on behalf of the defendant it is said that the strike-out application ought be heard and determined now. It was submitted on behalf of the defendant that even if the application to set aside the adoption was successful, the plaintiff could not maintain a claim against the estate. Accordingly, it was said that there was no utility in allowing this application to continue.

4 Some years ago in Roche v Douglas as Administrator of the Estate of Edward John Hamilton Rowan (dec) (2000) 22 WAR 331, a matter where the facts were very similar to the facts in this case, the plaintiff applied for an adjournment in the face of the defendant's application for summary judgment. I granted the adjournment. I took the view that the question of whether or not an adoption order would be set aside ought be determined before the summary judgment application proceeded. Counsel for the plaintiff referred to, and relied upon, that earlier decision. Counsel for the defendant, while acknowledging that decision, sought to have the defendant's application determined on the basis of matters not raised in the earlier decision.

5 The defendant's position can be summarised in this way. Section 77 of the Adoption Act 1994 is in the following terms:

(Page 4)

"(1) The following persons may apply to the Court for an order to discharge an adoption order -

(a) the Attorney General;

(b) the Director-General;

(c) an adult adoptee who has notified the Director-General of the adoptee's intention to so apply.


(2) On an application under subsection (1), the Court may make an order to discharge an adoption order if it is satisfied that -

(a) the adoption order was obtained by fraud, duress or other improper means;

(b) a consent relied on for the making of the adoption order was not an effective consent because it was obtained by fraud, duress or material inducement; or

(c) there is some exceptional reason why the order should be made.


(3) The Court is not to make an order under subsection (2) -

(a) if to do so would not be for the welfare and in the best interests of the adoptee; and

(b) unless the Court is satisfied that reasonable efforts have been made to notify all the parties to the adoption of the application.


(3a) Any person may apply for leave to intervene in an application under subsection (1) and the Court may make an order entitling the person to intervene in the application.

(3b) A person who, under subsection (3a), intervenes in an application under subsection (1), is to be treated as a party to the application with all the rights, duties and liabilities of a party, unless the Court orders otherwise.

(Page 5)

(4) Where an order is made under subsection (2) in relation to an adoption in which the adoptive parent was not specified in the forms of consent to the adoption, the consents to the adoption continue to have effect unless the Court orders otherwise.

(5) Where an order is made under subsection (2), the Court may make such consequential or ancillary orders as it thinks fit in the interests of justice or the welfare and best interests of the adoptee, including orders relating to -


(a) the name of the adoptee;

(b) the ownership or possession of property;

(c) guardianship of the adoptee or any other matter affecting the adoptee in relation to the duties, powers, responsibilities and authority which, by law, parents have in relation to children; or

(d) the domicile of the adoptee.


(6) Where an order is made under subsection (2), the rights, duties, liabilities and relationships of persons under the law of the State are to be as if the adoption order had not been made.

(7) Subsection (6) -


(a) is subject to orders made under subsection (5) and to section 75(5); and

(b) does not otherwise affect -


(i) anything lawfully done;

(ii) the consequences of anything lawfully done; or

(iii) any proprietary right or interest that became vested in any person while the adoption order was in force.

(Page 6)

(8) An adoption order cannot be appealed against, reviewed, called in question or affected by any court on any account, except -

(a) under this section; or

(b) under section 211(3) of the Family Court Act 1997."

6 The defendant's submissions rely on subs (7)(b)(iii). It is said that a "vested interest" is "an interest in which the identity of the person who takes the interest is known and there is no condition precedent to the interest falling into possession other than determination of the prior particular estate": "Butterworths Australian Legal Dictionary". It was the defendant's submission that in this case the interest of the beneficiaries under the Will of the deceased are in a very real sense, vested interests. What the defendant says has vested is the right in the beneficiaries to have the executor administer the Will according to its terms. It is said that that vested right cannot in any circumstances be expunged, even if the adoption order is set aside.

7 The submissions put on behalf of the defendant in my view place too heavy an emphasis on the "right" the beneficiaries have to see the Will administered. It is possible to give examples of a situation where equity would not require the executors to act; in other words where the so-called vested right would not be enforced. One example of such a case is where executors are advised by a person who is eligible to make a claim under the Act, that a claim is being contemplated. In such a situation it is inappropriate for the executors to move to distribute the estate. Doubtless, were a suit to be taken by the beneficiaries to compel the executors to act, the application would fail.

8 Moreover, it is not difficult to imagine a situation where the executors are not sure of who might make up the class of beneficiaries, and decline to distribute the estate. By way of example, a testator may leave all of his property to his children. If, at the date of his death, the executors were aware of an unborn child who would, when born, be a child of the deceased, the executors would be entitled to refrain from distributing the estate until that child was born. Again, it is difficult to imagine that any suit could force the executors to distribute the estate in those circumstances.

9 In my view, this is not a case where I should summarily dismiss the plaintiff's claim. As I indicated above, the plaintiff applied for an

(Page 7)

adjournment of the application. In my view that is the proper course. Were it to come about that the application to set aside the adoption order failed, then the defendant would be entitled to the order that he seeks. This present application ought be adjourned for consideration at a later date.

10 The costs of the application will be reserved.