Webb v Smith

[2000] TASSC 81

[2000] TASSC 81

CITATION:              Webb & Anor v Smith & Anor [2000] TASSC 81

PARTIES:  WEBB, Peter David

WEBB, Paul Nigel
v
SMITH, Roger Clitheroe
HARRISON, John Fisher

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M 81/1999
DELIVERED ON:  30 June 2000
DELIVERED AT:  Hobart
HEARING DATES:  4, 24 May 2000
JUDGMENT OF:  Slicer J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Applicants:  T J Williams
           Respondents:  K L Mooney
Solicitors:
           Applicants:  Gunson Pickard & Hann
           Respondents:  Butler McIntyre & Butler

Judgment Number:  [2000] TASSC 81
Number of Paragraphs:  8

Serial No 81/2000
File No M 81/1999

PETER DAVID WEBB and PAUL NIGEL WEBB v
ROGER CLITHEROE SMITH and JOHN FISHER HARRISON

REASONS FOR JUDGMENT  SLICER J
  30 June 2000

1. The respondents are executors of the Estate of Barbara Alice Webb, the mother of the applicants.  By her will the testatrix bequeathed the residue of her estate to the applicants and their sister Fiona Elizabeth Webb in equal shares.  The beneficiaries are in dispute in relation to a number of issues, including the disposition of certain assets said to form part of the estate.  The stated value of the estate is in the vicinity of $185,000, although it is likely that at trial the applicants will contend that certain property ought be included (at least in a notional sense) in the value of the estate.

1. The applicants are in a more secure and advantageous economic position than their sister.  They have commenced proceedings pursuant to the provisions of the Testators Family Act 1912 ("the Act") contending that they had "been left without adequate provision for their proper maintenance and support".  That application might permit the sons of the testatrix to argue that certain assets and dealings involving Fiona Webb and the testatrix ought be taken into account in the determination of respective entitlements.

1. The primary application was made on 8 April 1999 and in accordance with procedural requirements was served on Fiona Webb as an interested party, who in turn entered an appearance on 27 May 2000.  Assuming that the applicants establish entitlement, the question for the Court will be to consider apportionment of the estate as between the three parties.  That issue will require consideration of the share to be allocated to Ms Webb.  Following the filing of the entry of appearance, various interlocutory and pre-trial hearings were conducted by the court.

1. On 16 December 1999 Ms Webb made an application which relevantly sought orders:

"1That the Application filed on behalf of the Applicant's [sic] in this matter on the 8^th day of April 1999 be regarded as an application made on behalf of all persons who are entitled under the Act to make such an application in accordance with the provisions of section (4) of the Testators Family Maintenance Act 1912.

2That the Affidavit filed in response to the Application sworn on the 15^th day of December, 1999 by Fiona Street be treated as an Affidavit filed in support of her Application."

1. The applicants oppose the making of these orders.  Much of the material placed before the Court by the parties consisted of evidence relating to the respective merits of the competing claims and the conduct of the parties.  Some of that evidence was subjected to extensive cross-examination.  It would appear that Ms Webb sought to enhance her position by reason of the interlocutory application and much of the hearing concerned the propriety or otherwise of the conduct of the parties before and subsequent to the death of the testatrix.  The determination of the interlocutory application is made without regard to much of that material.  It is not appropriate to consider the merits of or motives behind the respective positions.  There are only three beneficiaries to the residue of the estate and all are adults.

1. An application brought in accordance with the Act, s3(4) should be assessed in accordance with the same principles which govern one seeking an extension of time as permitted by the Act, s11(2).  Those principles have been considered in cases such as West v West (1996) 5 Tas R 392, Re Walker, deceased [1967] VR 890 and In re Wherrett [1963] Tas SR 178. Those principles include reasons for delay, prejudice and conduct. In this case, the question of conduct will be discounted in that the respective parties ought be regarded in like manner. Ms Webb seeks to enhance her share of the estate in respect to a similar attempt by the applicants. That there might be a tactical advantage in taking that step does not affect the ultimate issue as to whether the Court should alter the respective entitlement of the parties. An increase in the share in favour of either applicant will affect Ms Webb. The issues are inextricably linked.

1. The interlocutory application is granted.  The reasons for doing so are:

(1)There has been no delay in the raising of the substantive question.  The applicants made their application in April 1999.  Their initial affidavits were filed on 8 and 13 April respectively.  On 3 May, the Court ordered that a copy of the application together with supporting affidavits be served on Ms Webb, who entered an appearance on 27 May.  On 8 July, the respondents sought orders striking out certain portions of the affidavits of the applicants.  That application was adjourned sine die by consent memorandum dated 30 July.  On 9 August, counsel for the applicants wrote to the Registrar seeking that the matter not be relisted between 23 September and 8 October because of other commitments.  Substantial affidavits sworn by both applicants, filed on 16 September, raised fresh evidentiary material, some of which was relevant to the conduct of Ms Webb.  Her response which accompanied the present application was filed on 16 December.  Even if it could be said that her interlocutory application was designed for tactical or evidentiary advantage, it raises no general issue which was not encompassed in either the original application or the affidavits sworn on 13 September.

(2)There is little, if any, prejudice to the applicants.  Each sought to enhance his entitlement and such, of necessity, requires consideration of the share (actual or notional) of the needs of and benefits to Ms Webb.  No other person is affected by the making of the interlocutory application.

(3)The granting of the interlocutory application will not affect the nature or extent of the evidence which is already comprised in the respective affidavits of the parties.

1. The interlocutory application dated 16 December 1999 is granted.  Counsel will be afforded the opportunity of making submissions in relation to necessary ancillary orders.