Wilkinson v Wilkinson

[2002] NSWSC 175

CITATION:	Wilkinson v Wilkinson [2002] NSWSC 175
FILE NUMBER(S):	SC 2336/01
HEARING DATE(S):	Friday, 1 February 2002
JUDGMENT DATE:	1 February 2002
PARTIES :	Leslie Wilkinson (Plaintiff) Peverall John Wilkinson (Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	L. Ellison (Plaintiff) D.D. Knoll (Defendant)
SOLICITORS:	Marsdens Solicitors (Plaintiff) McPhee Kelshaw Solicitors (Defendant)
DECISION:	1. Order that the claim of the Plaintiff under the Family Provision Act 1982 be dismissed.; 2. Order that so much of the notice of motion filed by the Defendants on 21 November 2001 as related to a claim grounded upon an asserted constructive trust be dismissed.; 3. Order that the Plaintiff have leave to file and serve on or before 8 March 2002 an amended statement of claim in respect to his claim grounded upon an asserted constructive trust.; 4. Order that any defence thereto be filed on or before 15 April 2002.; 5. Order that one half of the Plaintiff's costs on the party and party basis and the costs of the Defendants on the indemnity basis of and incidental to the notice of motion filed by the Defendants on 21 November 2001 be paid out of the estate of the late Brian Robert Williams ("the Deceased").

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 1 February 2002

2336/01 LESLIE HAROLD WILKINSON -V- PEVERALL JOHN WILKINSON & ANOR

JUDGMENT

1 MASTER: There is presently before the Court a notice of motion filed by the defendants, Peverall John Wilkinson and Barbara Ellen Parkinson on 21 November 2001. By that notice of motion the defendants seek an order pursuant to Part 13 rule 5 or Part 15 rule 26 of the Supreme Court Rules that the proceedings be dismissed.

2 The substantive proceedings were instituted by summons filed by the plaintiff, Leslie Harold Wilkinson, on 26 April 2001. By that summons the plaintiff sought substantively a declaration that he was entitled to a legal life estate in certain land situate at and known as 50 Quarry Road, The Oaks, and sought consequential relief in respect to the transfer to him of such a legal life estate.

3 Subsequently there was filed on behalf of the plaintiff on 14 November 2001 a statement of claim. That statement of claim sought declaratory relief in respect to the subject property, although the form of the declaration sought was that the defendants hold that property on trust for the plaintiff to the extent of a life estate.

4 In addition, the plaintiff sought an order pursuant to section 15 of the Family Provision Act 1982, extending the time in which he could bring proceedings against the estate of the late Brian Williams, and further sought an order for provision out of the estate of the late Brian Williams pursuant to section 7 of the Family Provision Act.

5 In order to understand the nature of the substantive claims being brought by the plaintiff and the basis upon which the defendants seek that those claims should be dismissed, it is appropriate that I should set forth, at least in summary, something of the factual background and familial relationships relevant to those claims and the history of the dealings of the plaintiff with his legal advisors and the communications between those legal advisors and the solicitors for the defendants.

6 The plaintiff is the brother of the late Dorothy Joyce Williams (known in the family and referred to in the statement of claim and the affidavits as Joyce). Joyce died on 21 May 1998. She was survived by her son, Brian Robert Williams (referred to in the statement of claim and in the affidavits as Brian, to whom I shall also refer as “the deceased”). In consequence, therefore, the plaintiff was the uncle of Brian.

7 The land situate at The Oaks, which is the subject of the proceedings and which constitutes the significant asset in the estate of Brian, was, as I understand it, originally owned by the husband of Joyce and the father of Brian, being the late John Robert Williams (referred to as Jack).

8 It would appear from the evidence that the plaintiff had a close relationship with his sister Joyce, her husband Jack and her son Brian. Indeed, for a period both before and after the first marriage of the plaintiff, he resided with Joyce, Jack and Brian, firstly in their residence at Guildford in the 1940s, where he remained with them for a period of eight to ten years. Then, after the termination of his first marriage, he again went to live with them, about 1958, until he commenced to reside, in 1963, with the lady who became his second wife, being Mrs Valda Wilkinson.

9 It is the case for the plaintiff that after the death of his wife Valda in 1996, some five months after the death of Jack Williams, the plaintiff was requested to remove his residence to the residence of Joyce and Brian at “The Oaks”.

10 According to the plaintiff’s evidence, he was somewhat reluctant to do so, he at that stage being content to reside at Old Bar (which, as I understand it, is located on the north coast of New South Wales). At all events, the plaintiff did, in about May 1997, move to the property at The Oaks, he having at the end of 1996, sold his residence at Old Bar.

11 The plaintiff continued to reside in the property at The Oaks. From May 1997 until her death on 21 May 1998, the plaintiff was a member of the same household of which Joyce was a member and from May 1997 until his death on 2 November 1999, the plaintiff was a member of the same household of which Brian was a member.

12 Upon the death of Joyce, the entirety of her estate passed to Brian. He left a will dated 26 August 1970. However, the effect of that will was to leave the entirety of his estate to his two parents, both of whom had, of course, by the time of his death in 1999, predeceased him.

13 In consequence therefore, the estate of Brian is subject to distribution in accordance with the rules of intestacy. It would appear that that estate will be divided equally among a number of the uncles and aunts of Brian. In the evidence of the plaintiff, that number is given as eleven, whilst in the evidence of the defendants, that number is given as nine.

14 The defendants are the persons to whom administration of the estate of Brian, with the will of Brian annexed thereto, was granted on 13 February 2001.

15 I have already referred to the fact that the summons by which the proceedings were instituted on 26 April 2001 sought relief only in respect to the land at The Oaks and did not seek any relief by way of a claim for an order for provision under the Family Provision Act 1982.

16 I have also referred to the fact that the statement of claim filed on 14 November 2001 seeks not only relief in respect to the land at The Oaks, but also seeks substantively an order for provision under the Family Provision Act and, as an essential prerequisite to the making of any such order, seeks an order extending the time in which such an application for provision can be brought.

17 The evidence further discloses that the plaintiff first approached a solicitor and sought legal advice concerning at least his right to remain in residence in the property at The Oaks in December 1999.

18 Correspondence passed between the plaintiff’s solicitors and the solicitors acting for the present defendants, in the course of which, in a letter of 20 February 2001, the solicitors for the defendants adverted to the possibility of the plaintiff bringing a claim under the Family Provision Act and expressed the view that the plaintiff did not have any valid claim against the estate under that Act.

19 That letter also contained a request that the solicitors for the plaintiff advise whether the plaintiff intended to commence proceedings against the estate and continued by saying that the solicitors for the defendants were instructed to accept service of any process.

20 The prescribed period for the institution of proceedings for an order for provision under the Family Provision Act is, by section 16 of that Act, a period of eighteen months from the date of the death of the deceased person.

21 Since the relevant deceased person in the instant case is Brian, and since he died on 2 November 1999, the last day for the institution of a claim for provision under the Act was 2 May 2001. The plaintiff did not make such a claim by that date. The claim was first made in the statement of claim which was filed on 14 November 2001.

22 The plaintiff seeks an order that the Court, in the exercise of its discretion under subsection (2) of section 16 of the Family Provision Act, extend the prescribed period to enable the claim to be brought out of time. That application is opposed by the defendants.

23 It is upon the basis of that opposition and the submission by the defendants that, unless the plaintiff can succeed in having the time extended, the claim under the Family Provision Act should be dismissed, that the defendants bring their application for dismissal in respect to that part of the plaintiff’s claim.

24 It should here be recorded that it was not in dispute between the parties that the plaintiff is an eligible person in relation to Brian, being such at least within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act and possibly within paragraph (a) of that definition.

25 I have had the benefit of receiving from Counsel for the defendants a written outline of his submissions, together with a chronology and copies of relevant authorities. The written outline of submissions and the chronology will be retained in the Court file.

26 I shall proceed to deal first with what can be treated as an application by the plaintiff for extension of time in which to bring his claim under the Family Provision Act. If the plaintiff cannot substantiate an entitlement to have the time extended, then it is inevitable that the claim of the plaintiff under that Act must be dismissed.

27 I will then proceed to consider the application of the defendants for dismissal of the claim of the plaintiff in respect to the asserted life estate or right of occupancy in the property at The Oaks, that asserted right being grounded upon an alleged oral promise on the part of Joyce and Brian, either jointly or severally, and also upon the principles relating to a constructive trust.

28 In respect to the extension of time for the bringing of the claim under the Family Provision Act, it has been pointed out by Counsel for the plaintiff that the usual practice in this Division is that where a claim is brought after the expiry of the prescribed period, the application for extension of the prescribed period should be dealt with at the final hearing of the substantive claim and in the context of the evidence to be adduced at that hearing.

29 It is certainly my experience that more usually than not the hearing of the application for extension of time takes place at the final hearing.

30 Nevertheless, a defendant is not precluded from applying for dismissal of proceedings on the ground that they are not brought within time and, in effect, having the hearing of an application for extension of time heard separately from the hearing of the substantive claim. That is, in effect, what has happened in the present proceedings.

31 I have been taken to a number of decided cases concerning extension of time under the Family Provision Act. I will make reference only to the decision of Young J in Charles v Charles (unreported, 25 March 1998, NSWSC) and to the unreported decision of Master Macready in Tumley v Swaab, [1999] NSWSC 594.

32 Subsection (3) of section 16 of the Family Provision Act provides as follows:

“The Court may not make an order under subsection 2 allowing an application in relation to a deceased person to be made after the end of the prescribed period unless:

(a) the parties to the proceedings concerned have consented to the application being made after the end of that period; or

(b) sufficient cause is shown for the application not having been made within that period.”

33 Paragraph (a) of course has no relevance to the present proceedings. It is necessary therefore that the plaintiff should establish, in the words of paragraph (b), that “sufficient cause is shown for the application not having been made within that period.”

34 Unfortunately there really is no cause, let alone sufficient cause, shown for the application not having been made within the prescribed period. The solicitor for the plaintiff was, within that period, alerted by the defendant’s solicitors to the possibility that his client could bring such a claim.

35 One would, in any event, have expected that any practitioner, be that practitioner solicitor or barrister, would have been familiar with the existence of the Family Provision Act and would have had, if not actual knowledge of the limitation period, an awareness that such limitation period existed.

36 The fact that Counsel originally instructed by the solicitor for the plaintiff to advise in the matter did not advert to the bringing of a Family Provision claim, or the fact that the plaintiff himself, a person not experienced in the law, did not give express instructions for the bringing of such a claim, does not, in my view, constitute sufficient cause for the application not having been made within the prescribed period.

37 Accordingly, I do not consider that the Court is entitled to exercise the discretion given to it under subsection 2 of section 16 to extend the prescribed period. That being so, the claim of the plaintiff under the Family Provision Act must be dismissed. It has no prospect of success unless the prescribed period is extended.

38 I turn now to the claim of the plaintiff concerning the asserted interest of the plaintiff in the property at The Oaks. It is quite apparent that any request or arrangement by either Joyce or her son Brian which had the effect of causing or encouraging the plaintiff to remove his residence from Old Bar to The Oaks was not made in any written form, or indeed in any formal oral manner.

39 However, the evidence of the plaintiff can be paraphrased along the lines that he was requested by Joyce and Brian to give up his residence at Old Bar; to move to The Oaks, to look after that property because Joyce and Brian were not in a fit state physically to look after it themselves; that he did so, having sold his residence at Old Bar; when he moved to The Oaks not only did he perform most of the activities for the maintenance of that rural estate, but he also expended his own money on maintenance of that estate; and that, in the period when the health of each of Joyce and Brian fell into a decline, it was the plaintiff who personally looked after, ministered and tended to each of those persons and to the physical welfare and needs of each of those persons.

40 The provisions of the Conveyancing Act section 23C and section 54A, which can compendiously be referred to as the provisions re-enacting the Statute of Frauds, preclude the plaintiff from succeeding in a claim in respect to a legal interest in land which is not evidenced in writing in the fashion set forth in those sections.

41 I do not understand the claim of the plaintiff to be grounded upon the provisions of section 23D of the Conveyancing Act. In my understanding, the claim of the plaintiff is grounded upon the asserted existence of the constructive trust of the nature which has been considered in relatively recent times by the High Court of Australia in such cases as Baumgartner v Baumgartner (1987) 164 CLR 137 and Muschinski v Dodds (1985) 160 CLR 583 and, somewhat earlier, in the Court of Appeal of New South Wales in Allen v Snyder [1977] 2 NSWLR at 685.

42 In one of the leading authorities in England relating to constructive trusts, Gissing v Gissing [1971] AC 886 Lord Diplock said at 905, in respect to a constructive trust that such a trust:

“Is created by a transaction between the trustee and the cestui que trust in connection with the acquisition by the trustee of a legal estate in land, whenever the trustee has so conducted himself that it would be inequitable to allow him to deny to the cestui que trust a beneficial interest in the land acquired. And he will be held so to have conducted himself if by his words or conduct he has induced the cestui que trust to act to his own detriment in the reasonable belief that by so acting he was acquiring a beneficial interest in the land.”

43 It has been submitted on behalf of the defendants in the instant case that there was no conduct on the part of Brian or, as I understand it, on the part of Joyce, that could bring the circumstances of this case within the concept of a constructive trust and in particular that the conduct of those persons did not have the element of unconscionability which is necessary to the recognition of the existence of a constructive trust.

44 Further, it has been submitted that the plaintiff did not act to his detriment in removing from Old Bar to the property at the coast.

45 On an application of the nature of that which is presently before the Court, being an application for dismissal of the proceedings on the ground that no reasonable cause of action is disclosed, in the terms of Part 13 rule 5 of the Supreme Court Rules, it is necessary for the applicants/defendants to establish that the claim of the plaintiff is doomed to failure.

46 The principles relating to such summary dismissal are well recognised. I would refer merely to the decision of the High Court of Australia in General Steel Industries Inc. v Commissioner for Railways (1964) 112 CLR 125 and in particular to the judgment of Barwick CJ.

47 In an application of the nature of that presently before the Court it is appropriate that the Court should accept at its highest the evidentiary material presented on behalf of the plaintiff and should proceed upon the basis that the plaintiff at the final hearing will be able to substantiate the facts or the assertions contained in the statement of claim and in the various affidavits.

48 It is my understanding, upon the basis of the various authorities to which I have already referred, that the Court must consider in a case where there is an assertion of the existence of a constructive trust, whether or not it would be inequitable in the factual circumstances of the case for the plaintiff, having relied upon an inducement by, in the instant case, the deceased and his mother, to be deprived of the benefit to him which was part of that inducement.

49 The unconscionability recognised by Lord Diplock in Gissing v Gissing is an unconscionability which arises as a result of the plaintiff being deprived of his expectations rather than as a result of any conduct on the part of the deceased and of Joyce.

50 It is not necessary that the Court should be persuaded that the plaintiff must, of necessity, succeed at a final hearing. But I am certainly not satisfied that the plaintiff is doomed to failure at a final hearing of his claim grounded upon the asserted existence of a constructive trust.

51 In those circumstances therefore I am not persuaded that the defendants are entitled to an order that the plaintiff’s claim in respect to the property at The Oaks, grounded upon the existence of such an asserted constructive trust, should be dismissed. Accordingly, the plaintiff should be allowed to maintain his claim for that relief.

52 ELLISON: I seek an opportunity to file an amended statement of claim. I will seek an order giving the plaintiff leave to file and serve an amended statement of claim with regard to the trust claim.

53 KNOLL: We are content if leave is given to file the amended statement of claim within 28 days.

54 MASTER: I make the following orders:

(1). I order that the claim of the plaintiff under the Family Provision Act 1982 be dismissed.

(2). I order that so much of the notice of motion filed by the defendants on 21 November 2001 as relates to a claim grounded upon an asserted constructive trust be dismissed.

(3). I order that the plaintiff have leave to file and serve on or before 8 March 2002 an amended statement of claim in respect to his claim grounded upon an asserted constructive trust.

(4). I order that any defence thereto be filed on or before 15 April 2002.

(5). I order that one half of the plaintiff’s costs on the party and party basis and the costs of the defendants on the indemnity basis of and incidental to the notice of motion filed by the defendants on 21 November 2001 be paid out of the estate of the late Brian Robert Williams, the deceased.

55 The exhibit may be returned.

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Last Modified: 03/06/2003