Winter-Cooke v Winter-Cooke
[2022] VSCA 264
•30 November 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0009 |
| ROBERT EDMUND WINTER-COOKE | Applicant |
| v | |
| SAMUEL MARCUS WINTER-COOKE (AS EXECUTOR AND TRUSTEE OF THE ESTATE OF MARCIA WILSHIRE WINTER-COOKE, DECEASED, AND AS EXECUTOR AND TRUSTEE OF THE ESTATE OF SAMUEL ROBERT WINTER-COOKE, DECEASED) & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | KYROU, MACAULAY JJA and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 October 2022 |
| DATE OF JUDGMENT: | 30 November 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 264 |
| JUDGMENT APPEALED FROM: | [2021] VSC 806 (McMillan J) |
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ADMINISTRATION AND PROBATE – Family provision – Application for extension of time – Lengthy delay – Whether claim for further provision arguable – Whether satisfactory explanation for delay – Whether other beneficiaries would be prejudiced if extension of time granted – Whether judge erred in refusing extension of time – Leave to appeal refused.
Administration and Probate Act 1958, ss 91, 99.
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| Counsel | |||
| Applicant: | Mr MC McKenzie | ||
| Respondents: | Mr RC Wells | ||
Solicitors | |||
| Applicant: | PVP Legal | ||
| Respondents: | Kathy Wilson Legal | ||
TABLE OF CONTENTS
Introduction and summary
Non contentious facts
Background to the Winter-Cooke family and its financial arrangements
Deceased’s will dated 26 April 2007 and assets of his estate
Deeds of agreement dated 28 September 2009
Communications relating to Marcia’s 10,000 shares
Other events after execution of the deeds and before commencement of the proceeding
Applicant’s evidence at trial
Respondent’s evidence at trial
Principles regarding extension of time to make a pt IV claim
Judge’s reasons
Judge’s reasons concerning whether the applicant had an arguable case
Judge’s reasons concerning prejudice to other beneficiaries
Judge’s reasons concerning the applicant’s delay in commencing a pt IV proceeding
Judge’s overall conclusion
Grounds of appeal
Grounds 14 and 15: Applicant’s reasons for delay
Parties’ submissions on grounds 14 and 15
Decision on grounds 14 and 15
Remaining grounds
Conclusion
SCHEDULE OF PARTIES
KYROU JA
MACAULAY JA
J FORREST AJA:
Introduction and summary
Samuel Robert Winter-Cooke (‘deceased’) died on 7 January 2008 leaving a will dated 26 April 2007. He was survived by his wife, Catharine, and his four children: Samuel Marcus Winter-Cooke (‘Marcus’), Phillipa Risbey, Robert Winter-Cooke (‘applicant’) and Arbella Winter-Cooke. Probate of the deceased’s will was granted to Marcus, Catharine and Phillipa as executors and trustees of the deceased’s estate (‘executors’) on 8 April 2009. Accordingly, the final date of the six month period for the making of a claim for family provision under pt IV of the Administration and Probate Act 1958 (‘Act’) was 8 October 2009.[1]
[1]See [85] below.
The members of the Winter-Cooke family have been part of a farming enterprise (‘Murndal partnership’) over many years. At the core of the enterprise is a 6,000 acre grazing property known as ‘Murndal’ near Hamilton. Winter Cooke (Murndal) Pty Ltd (‘company’) is the registered proprietor of Murndal. At the time of the deceased’s death, the Murndal partnership comprised the company, the deceased, Catharine, Marcus, and Marcus’s wife, Julia. The deceased’s mother, Marcia Wilshire Winter-Cooke, was a member of the Murndal partnership until her death on 7 October 1990.
At the time that probate of the deceased’s estate was granted, the issued capital of the company comprised 45,005 shares, 40,005 of which were held by the deceased and 5,000 of which were held by Marcus. The inventory of assets of the estate stated that the estate did not have any liabilities and that it had assets totalling $6,693,129 in value. The assets were as follows:
(a)40,005 shares in the company, with an estimated value of $6,459,915;
(b)an account balance in the Murndal partnership of $193,214; and
(c)a motor vehicle valued at $40,000.
The deceased’s will left his shares and interest in the Murndal partnership to Catharine during her life and then to Marcus, subject to a legacy of $100,000 to be paid to the applicant within five years after the deceased’s death.
Under Marcia’s will, subject to small pecuniary legacies, the residue of her estate was left to the applicant. There was some evidence that Marcia’s residuary estate included 10,000 shares in the company. We will discuss that evidence later in these reasons. Putting those shares to one side, Marcia’s estate chiefly comprised her interest in the Murndal partnership which was estimated to have a value of $211,864.55. The executor of Marcia’s will was the deceased. Following his death, the executors of the deceased’s estate also became executors of Marcia’s estate pursuant to s 17(1) of the Act.
On 18 December 2014, the applicant filed an originating motion against the executors, making a claim under pt IV of the Act and seeking an extension of time within which to make the claim. The originating motion lapsed because the applicant did not serve it within 12 months.
By originating motion filed on 26 February 2016, the applicant commenced a proceeding in the Trial Division against the executors and the company, relevantly seeking the following relief:
(a)in respect of the deceased’s estate, the applicant sought against the executors:
(i)an extension of time to bring an application for further provision from the deceased’s estate, pursuant to pt IV of the Act; and
(ii)further provision from the deceased’s estate;
(b)in respect of Marcia’s estate, the applicant sought against the executors the taking of accounts of profits of the Murndal partnership, of which Marcia had been a partner;
(c)in respect of the 10,000 shares in the company that were said to be held by Marcia, the applicant sought against the company an order pursuant to s 175 of the Corporations Act 2001 (Cth) that the company’s register be amended to record his entitlement to those shares.
On 11 September 2017, Mukhtar AsJ refused an application by the executors and the company for summary dismissal of the applicant’s proceeding. He relevantly ordered the applicant to file a statement of claim concerning his alleged entitlements under Marcia’s will, and the enforceability or proper construction of the first and second deeds of agreement referred to at [34] to [47] below. Mukhtar AsJ also ordered that the applicant’s application for an extension of time be deferred pending the determination of the claims in that statement of claim. Under Mukhtar AsJ’s order, the application by the executors and the company for summary dismissal of the applicant’s application for an extension of time could be reinstated after the determination of the applicant’s claims under Marcia’s will.
Pursuant to the order of Mukhtar AsJ, on 6 March 2019, the applicant filed a statement of claim asserting that Marcia was the beneficial owner of 10,000 shares in the company and that her residuary estate included those shares. He sought a declaration that the executors of the deceased’s estate held 10,000 shares in the company on trust for him and an order pursuant to s 175 of the Corporations Act that the company’s register be rectified to record his ownership of those shares. The statement of claim did not deal with the enforceability or proper construction of the first and second deeds of agreement referred to at [34] to [47] below.
On 4 February 2020, the applicant’s solicitors informed the Court by email that he no longer wished to pursue any relief in relation to the 10,000 shares that were said to have formed part of Marcia’s residuary estate (that is, the relief sought in the statement of claim dated 6 March 2019), but wished to pursue his pt IV claim. It is not clear why he abandoned his claim to the shares. However, as discussed later in these reasons, it became apparent from information the applicant received in the course of the proceeding that those shares were held by Marcia and a solicitor, Robert Aitken, on trust for Marcia during her life and then for the deceased, and therefore the shares did not form part of Marcia’s estate.
On 1 May 2020, the executors and the company sought to reinstate their earlier application for summary dismissal of the applicant’s application for an extension of time to commence a proceeding under pt IV of the Act. On 11 September 2020, the judge dismissed the application for summary dismissal on the basis that the applicant’s claim may not be without merit and the Court was not in a position to conclude that his application for an extension of time under s 99 of the Act had no real prospects of success.[2]
[2]Re Winter-Cooke [2020] VSC 588, [167], [175] (‘Summary dismissal decision’).
On 13 December 2021, the judge dismissed the applicant’s application for an extension of time.[3] She held that the determinative factor was that the applicant had failed to provide a satisfactory explanation for his delay in seeking to bring his claim under pt IV of the Act. She concluded that his lack of adequate explanation, coupled with the weakness of his claim, meant that it was not in the interests of justice to grant an extension of time.[4]
[3]Re Winter-Cooke [No 2] [2021] VSC 806 (‘Reasons’). On 17 August 2022, the judge made an order that the applicant pay the respondents’ costs of the application for an extension of time. See Re Winter‑Cooke [No 3] [2022] VSC 468.
[4]Reasons, [96].
On 27 January 2022, the applicant filed an application for leave to appeal against the judge’s dismissal of his application for an extension of time. The 20 grounds of appeal upon which the applicant relied are set out at [108] below.[5] The respondents to the application are the executors and the company. As none of the grounds relate to the company and it did not take an active role in relation to the application, unless indicated otherwise, all references to the respondents below are to the executors.
[5]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
At the hearing of the application for leave to appeal, it was common ground that the principles in House v The King[6] applied to the judge’s decision refusing an extension of time. Accordingly, in order to succeed, the applicant had to demonstrate that the judge acted upon a wrong principle, was affected by irrelevant matters, failed to take into account a material consideration or mistook the facts, or that her decision was unreasonable or plainly unjust such that it could be inferred that she failed to properly exercise her discretion.
[6](1936) 55 CLR 499, 505.
The main focus of the parties’ oral submissions was on whether the judge erred in concluding that the applicant had not provided a satisfactory explanation for his delay in commencing his proceeding.
For the reasons that follow, the application for leave to appeal will be refused.
Non contentious facts
Background to the Winter-Cooke family and its financial arrangements
The Murndal partnership commenced on 1 October 1953 and the company was incorporated on 16 December 1953. At the time of the deceased’s death, the directors of the company were the deceased, Marcus and Catharine.
On 29 July 1955, a deed of settlement was executed by the applicant’s paternal grandparents, William Lempriere Winter-Cooke and Marcia and their solicitor, Robert Aitken (‘1955 deed of settlement’). Under that deed, William settled the amount of £10,000 upon Marcia and Mr Aitken as trustees to hold that sum on trust for Marcia during her life and for the deceased upon Marcia’s death. Clause 1 of that deed defined ‘the trust fund’ as the ‘sum of [£10,000] and the stocks funds or securities in which the same or any part thereof may in exercise of the powers hereinafter contained be invested or by which the same may for the time being be represented’.
In response to an application from Marcia and Mr Aitken, on 15 December 1955 the directors of the company resolved to allot 10,000 shares in the company to them. A share certificate dated that day certified that Marcia and Mr Aitken were the registered holders of 10,000 shares in the company ‘upon which the sum of £10,000 has been paid up’.
In a document that appears to be the cover of the company’s memorandum of association, there is a handwritten annotation which is difficult to decipher. One interpretation of the annotation is that it was written by Marcia’s husband, William, and states the following:
16th Dec 1953 Winter Cooke — started
Oct 1st 1953 Partnership
18th Jan 1954 initial gift from WLWC to son 15000
18 mths after later to wife 10000[7]
[7]WLWC are William’s initials. It is likely that the reference to ‘son’ is to the deceased and to ‘wife’ is to Marcia.
The company’s tax return for the year ended 30 June 1956 listed its shareholders as the deceased (15,005 fully paid shares) and Marcia and Mr Aitken ‘[a]s trustees for Mrs Marcia Winter-Cooke’ (10,000 fully paid shares). The company’s tax return for the year ended 30 June 1957 listed its shareholders as the deceased (19,005 fully paid shares), Marcia and Mr Aitken ‘[a]s trustees for Mrs Marcia Winter-Cooke’ (10,000 fully paid shares) and Elizabeth Winter-Cooke (6,000 fully paid shares).[8] The company’s tax return for the year ended 30 June 1990 listed its shareholders as the deceased (30,005 fully paid shares), Marcia and Mr Aitken ‘[t]rustee for Mrs Marcia W Winter-Cooke’ (10,000 fully paid shares) and Marcus (5,000 fully paid shares). None of the tax returns referred to the 1955 deed of settlement or to the shares being held on trust for Marcia only for her life.
[8]Elizabeth Winter-Cooke was one of the deceased’s sisters.
Until 1989, the company’s annual returns showed Marcia and Mr Aitken jointly holding 10,000 shares without any reference to a trust. The annual returns for the financial years ended 30 June 1990 and 30 June 1991 showed ‘Marcia Wilshire Winter-Cooke Deceased’ owning 10,000 shares beneficially, without any reference to Mr Aitken. The annual returns for the financial years ended 30 June 1996 and 30 June 2002 showed the deceased and Marcus as the only shareholders.
We will refer to the 10,000 shares in the company which Marcia and Mr Aitken held on trust for Marcia as ‘Marcia’s 10,000 shares’.
As we have already stated, Marcia died on 7 October 1990. At the time of her death, the company’s register of shareholders showed her and Mr Aitken as the registered proprietors of 10,000 shares.
On 22 June 1992, the directors of the company resolved to approve a transfer of 10,000 shares from Mr Aitken ‘(as trustee)’ to the deceased, with the consideration being expressed as ‘Beneficiary entitled in equity under Trust Deed dated 1/7/1955’.[9]
[9]We note that the deed of settlement is dated 29 July 1955, and not 1 July 1955.
A search of the company obtained by the applicant on 3 January 2016 from the Australian Securities and Investments Commission (‘ASIC’) showed the then current shareholders of the company as the executors (40,005 shares) and Marcus (5,000 shares). The following relevant entries appeared under the heading ‘Previous Members’:
Name: MARCIA WILSHIRE, ESTATE OF THE LATE
…
Class Number held Beneficially held Paid
ORD 10000 yes FULLY
Name: MARCIA WILSHIRE WINTER-COOKE
…
Class Number held Beneficially held Paid
ORD 10000 yes FULLY
The Murndal homestead contained a number of pieces of valuable artwork. One painting, known as ‘Wannon Falls’, was sold by the deceased in May 2000 for $354,500 to fund the purchase of a property at McIntyre Street, Hamilton (‘Hamilton property’) in the names of the deceased and Catharine. A second painting, referred to as the ‘Pybus painting’, was sold by the deceased to the National Gallery of Victoria in 2003. The net proceeds of sale of approximately $700,000 became the subject of a discretionary trust (‘Pybus Trust’). Pybus Pty Ltd was appointed trustee of the discretionary trust and the beneficiaries included the deceased and his family.
Deceased’s will dated 26 April 2007 and assets of his estate
As we have already stated, the deceased died on 7 January 2008, probate of his will was granted to the executors on 8 April 2009, and the inventory of assets valued the estate at $6,693,129, constituted by the assets set out at [3] above. In the current proceeding, the applicant disputed the accuracy of the inventory of assets, asserting that the estate was worth $15 million.
Clause 3 of the deceased’s will directed the executors to hold his shares in the company and his interest in the assets of the Murndal partnership on trust during the life of Catharine, and for the income generated from those interests to be distributed between Catharine, the deceased’s children and grandchildren in such proportions as the executors saw fit. In the event that there was no distribution, the income was to be paid to Catharine. Upon Catharine’s death, the shares and interest in the Murndal partnership were to be transferred to Marcus, subject to a legacy of $100,000 to be paid to the applicant within five years from the date of the deceased’s death. Under cl 5, the residuary estate was left to Marcus.
Clause 4 of the will devised the deceased’s interest in the Hamilton property to Phillipa and Arbella in equal shares. It is not clear why that property was not listed in the inventory of assets. One possible explanation is that the deceased and Catharine were joint tenants of the property and that Catharine became the sole proprietor upon the deceased’s death in accordance with the principle of survivorship.
Clause 6 of the will stated that it was the deceased’s wish that Catharine distribute the net proceeds from his life insurance policy — of which Catharine was the nominated beneficiary — to Phillipa, Arbella and the applicant in equal shares. It appears that each of them received $50,000 from those net proceeds.
Clause 7 of the will stated:
I DECLARE that I have made no further provision in this my Will for my son [the applicant] as (being one of ten grandchildren of my late mother) he was sole beneficiary of my late mother’s Estate and in addition funds have been made available by myself and my said wife during our lifetimes. As it was the wish of my late father and great-uncle and it is also my wish and desire that the property known as ‘Murndal’ remain viable within the family it is not possible for me to make any further provision for my said son out of such property.
Deeds of agreement dated 28 September 2009
From at least May 2008, discussions commenced between family members and their legal representatives concerning the deceased’s estate. At that time, Hunter Newns represented the executors and the applicant selectively sought advice from Maddens Lawyers (‘Maddens’).
On 28 September 2009, three deeds of agreement were executed. Prior to their execution, the applicant received $120,000 from the Pybus Trust.[10] Marcus, Phillipa and Arbella received $100,000 from that trust. Approximately $100,000 was retained in the trust for Catharine.
[10]See [27] above.
The first deed was executed by: Marcus, Catharine and Phillipa as executors of the deceased’s estate; the company; Catharine, Marcus, Phillipa, Arbella and the applicant as beneficiaries; and Marcus and his wife.
Recital H of the first deed relevantly stated: ‘In consideration of the [executors] and Marcus acknowledging the [deceased’s] wish that [the lands of the Murndal enterprise] remain viable the parties to this Deed of Agreement have agreed as follows.’
Clause 1 of the first deed provided that, if the shares in the company or the land owned by it to which Marcus was entitled under the deceased’s will were sold prior to his sixtieth birthday, the net proceeds of sale are to be distributed 16.67 per cent to each of Marcus, Julia, Arbella and Phillipa, and 16.66 per cent to each of the applicant and Catharine.
Clauses 5 and 6 of the first deed stated:
In consideration of the provisions of the Deed of Agreement, the parties agree that they have no entitlement to any order for further provision for their maintenance from the estate of the [deceased].
The parties have each received independent legal advice as to the advantages and disadvantages of executing this Deed and a certificate confirming receipt of such advice in respect of each party is annexed hereto at Schedule 2.
Schedule 2 of the first deed contained a ‘waiver in respect of legal advice’, which the applicant signed on 24 September 2009.[11] Pursuant to the waiver, the applicant confirmed that he had read the contents of the document and acknowledged that he had received a recommendation from the solicitor of the estate prior to entering the deed that he obtain legal advice, but expressly waived his right to do so.
[11]A similar waiver was signed by Phillipa.
The first deed contained the following additional clause to which the parties agreed by an exchange of letters during the period that that deed was being executed in counterpart:
The parties have entered into this Deed acknowledging the wishes of [the deceased] as stated at clause 7 of the Will dated 26 April 2007 and as follows:
7… It is also my wish and desire that the property known as ‘Murndal’ remain viable within the family.
The second deed was executed by: Marcus, Catharine and Phillipa as executors of the deceased’s estate; Catharine, Marcus, Phillipa, the applicant and Arbella as beneficiaries; and the company (‘second deed’).
Recital H of the second deed was similar to recital H of the first deed.
Clause 1 of the second deed granted the applicant and his immediate family a licence to attend Murndal and to be accommodated as guests at the house for up to five days annually and any other days agreed to by the executors.
Clause 2 of the second deed stated that the $100,000 payable to the applicant under cl 3 of the deceased’s will was to be paid within 30 days of the date of the second deed.
Clause 4 of the second deed provided:
In consideration of the aforesaid and in consideration of the [first deed] and the distribution he has received from the Trustee of the Pybus Trust [the applicant] agrees that he shall not commence or maintain any application to the Court under Part IV of the [Act] seeking provision from the [deceased’s estate] and he further acknowledges that the provision made for him in accordance with the [deceased’s will] and by this Deed and by the [first deed] and by the distribution he has received from the Trustee of the Pybus Trust amounts to adequate provision for his proper maintenance and support from the [deceased’s estate] and he acknowledges that his entitlements pursuant to the [deceased’s will] and this Deed constitute the entirety of his rights to share in the [deceased’s estate] on any basis whatsoever and whether pursuant to Will, at law or in equity or pursuant to statute.
Page three of the second deed contained a handwritten additional cl 7 which stated: ‘Provision (1) in Winter‑Cooke (Murndal) Pty Ltd deed is amended.’ However, the additional clause was struck through.
In sch 1 to the second deed, the applicant signed a ‘waiver in respect of legal advice’ dated 24 September 2009 that was similar to the waiver referred to at [39] above.[12]
[12]A similar waiver was signed by Phillipa.
The third deed primarily concerned Arbella. The applicant was not a party to that deed and was not given a copy of it. He deposed that he believed that, under that deed, Arbella received $200,000 in addition to a half interest in the Hamilton property pursuant to a charge signed by Catharine on 28 September 2009 to compensate Arbella for foregoing any further claim upon the deceased’s estate.
It is common ground that, prior to signing the first and second deeds, Maddens had advised the applicant that he had ‘a good Part IV claim’. The applicant gave evidence that he did not ask Maddens for this advice. At trial, the applicant’s senior counsel stated in his opening address that the applicant ‘made a conscious decision … not to pursue [a pt IV claim] not because he thought … it wouldn’t succeed but because he wanted to preserve such goodwill as was left with the rest of the family and to give effect to what he perceived to be the wishes of the [deceased] that [Murndal] should be held and operated for the benefit of the whole family.’
Maddens provided some advice to the applicant regarding the first and second deeds before they were signed. However, the applicant tended to bypass Maddens and communicate directly with the executors or their solicitors, Hunter Newns, concerning the deeds.[13] As has been indicated already, the applicant elected to sign a ‘waiver in respect of legal advice’ rather than obtaining a lawyer’s certificate from Maddens or another law firm in respect of the two deeds.
[13]See, for example, the emails set out at [81] and [150] below.
Shortly after the first and second deeds were executed, the applicant received $100,000. He deposed that this was paid from Catharine’s entitlement under the Pybus Trust.[14]
Communications relating to Marcia’s 10,000 shares
[14]See [34] above.
On 15 May 2008, Maddens sent a letter to Hunter Newns stating that ‘it would seem that an asset of [Marcia’s] Estate was 10,000 shares in [the company]. It would also seem that those shares became the property of [the applicant] pursuant to the terms of [Marcia’s] Will.’ Maddens requested confirmation that this was the position and also sought information about the administration of Marcia’s estate.
By letters dated 5 June, 17 July and 24 July 2008, Hunter Newns provided Maddens with copies of various documents. As the enclosures to those letters were not before this Court and the letters described some of the enclosures opaquely, it is difficult for us to determine the full scope of the documentation that was provided. However, it is clear that the 1955 deed of settlement was not provided to Maddens. Further, the three letters from Hunter Newns did not explain how the enclosed documents informed the question whether Marcia’s 10,000 shares formed part of her residuary estate. In particular, the letters did not state that the shares did not form part of Marcia’s residuary estate.
On 19 October 2011, Hunter Newns sent a letter to the applicant in response to queries he raised with them on 2 September 2011 regarding Marcia’s estate. Hunter Newns stated that their file relating to Marcia’s estate had been destroyed by 2008 in accordance with usual practice, but they had been able to obtain documents from Catharine and Aitken Lawyers, which they provided to Maddens in June and July 2008. The letter concluded as follows:
On 8 August 2008 we received contact from you indicating that you had no further issues in relation to [Marcia’s] estate. On that basis the matter was put to rest. As such, may we suggest [that] you contact Maddens at first instance in this regard. In the event such contact leaves questions remaining, we would be happy to investigate the matter further.[15]
[15]In cross-examination, the applicant was not asked about the accuracy of the statement attributed to him in this letter.
On 27 November 2011, Hunter Newns sent a letter to the applicant in response to a letter from him to Marcus and Catharine dated 26 October 2011, a copy of which was not provided to us. Hunter Newns relevantly wrote as follows:
On the basis that you wish us to embark on a retrospective examination of the administration of [Marcia’s] estate (which has how been concluded for a period approaching 20 years), we have sought instructions from the Executors of [the deceased’s] estate … As we have previously indicated, the file in relation to this estate has been destroyed in accordance with proper practice and we are instructed that the estate has been fully administered. The Estate holds no funds with which to fund an examination of its administration. Further, the Executors … are not in a position to provide instructions to the writer on the details of the administration of the estate. We are instructed to indicate that your mother, your brother Marcus and sister Phillipa consider this matter closed.
Other events after execution of the deeds and before commencement of the proceeding
On 16 April 2011, Phillipa sent an email to the applicant in which she referred to a suggestion she had made that a meeting be arranged between him and the executors to discuss concerns he had regarding his financial circumstances. Phillipa stated that, in order for the executors to make an accurate assessment of financial need, if the applicant required financial assistance, he would need to make a formal application with full disclosure of his financial statements, as this was ‘the only way that an objective assessment of financial need [could] be made’. There is no evidence that the applicant responded to Phillipa’s email or that he made a formal application for assistance, as suggested by her.
In his letter of 26 October 2011 to Catharine and Marcus referred to at [55] above, the applicant proposed that the first or second deed be amended to augment his entitlements from the deceased’s estate. As we were not provided with a copy of that letter, our understanding of its contents is based upon Hunter Newns’ responding letter dated 27 November 2011. In that letter, Hunter Newns stated that the executors rejected the applicant’s proposal. In his letter of 26 October 2011, the applicant also sought assistance with regard to the schooling expenses of his daughter, Annabelle. Hunter Newns responded that the executors did not wish to make any determination at that stage that any of the income of the deceased’s estate be distributed to cover such expenses.
Catharine sent a letter dated 31 July 2012 to the applicant and Arbella. In that letter, Catharine referred to a proposed restructure of the Murndal partnership which would involve folding the assets of the partnership into a new entity. She stated that the most likely outcome would be the establishment of a separate loan account in the name of the deceased’s estate equal to a fifth share of the value of the partnership assets, with the loan account attracting interest and being administered by the executors. Catharine also relevantly stated:
I became fully aware of the significance of Clause 3 of [the deceased’s] Will [and] that the amount still pertaining to the [deceased’s estate] needs to be treated differently, in order to carry out [the deceased’s] wishes that his estate be used for the benefit of all his children.
…
The monies to be distributed will be the amount of interest due on [the] loan. …
It is my intention to use this money to benefit my four children equally. This distribution is likely to occur on an annual basis when the books are reviewed, which we anticipate will be the third quarter of each financial year.
I am really pleased that I find myself in a position to be able to financially contribute to both of you and to deliver in a more tangible way, [the deceased’s] wishes.
On 20 August 2012, Catharine sent a letter to the applicant, Arbella, Marcus and Phillipa in which she clarified that, in carrying out her intention to use the interest from the proposed new entity to the benefit of all her children, she will also have regard to her own future needs and the ability of the new entity to pay its way. She added: ‘I am confident that I am doing the best that I can to help you all, taking into account the needs of each one of you, and also acknowledging [the deceased’s] wishes in regard to his estate.’
There is no evidence that, after 20 August 2012, Catharine used interest received from the proposed new entity to make payments to the applicant.[16] The applicant has not asserted that he communicated with Catharine after 20 August 2012 enquiring about payments from her to him or his family.
[16]However, see [76] and [161] below.
On 23 November 2012, Marcus wrote to the applicant and his wife stating that, in future, they should plan on staying at the manager’s quarters, rather than the main house, when they visit the Murndal property.
On 23 October 2013, the Townsville firm Strategic Lawyers wrote to Marcus on behalf of the applicant stating that he did not agree to any changes being made to his right of access to Murndal under the second deed and that he would seek to enforce his contractual rights if they were impeded by Marcus. On 22 November 2013, Marcus formally retracted his letter of 23 November 2012. In 2019, the applicant instituted proceedings in the Queensland Civil and Administrative Tribunal (‘QCAT’) against Marcus seeking damages for breach of the licence in the second deed regarding access to Murndal.
Applicant’s evidence at trial
At trial, the applicant relied upon five affidavits sworn by him on 25 February 2016, 20 April 2017, 27 July 2017, 29 May 2020 and 10 May 2021, respectively. The evidence in those affidavits, insofar as it is relevant to the application for leave to appeal and does not form part of the non‑contentious facts to which we have already referred, is summarised at [64]–[74] below.
The applicant works for Telstra as a business development manager. He is married and lives in Townsville with his wife and daughter, Annabelle.[17] Annabelle attended a Catholic school in Townsville.
[17]See [98] below regarding the applicant’s financial circumstances and deafness.
The applicant was initially unaware that he was the residuary beneficiary of Marcia’s estate. He learned of his interest in early 1994 at a family social occasion. He then contacted his father, who confirmed that he had an entitlement under Marcia’s will, but did not disclose the nature of that entitlement. His father said that he had no spare cash to pay the entitlement and that, if the applicant attempted to take the entitlement, the farm would be harmed because cash held in the partnership accounts would have to be removed.
Two or three months later, the applicant visited Murndal. At the instigation of the deceased, they attended the office of the family’s solicitors, Hunter Newns, where the applicant signed a document which was not explained to him. The applicant now believes that the document was a loan agreement dated 6 June 1994, the other parties to which were the deceased, Catharine, Marcus and the company. Under the agreement, $187,362.51 was to be paid to the applicant with interest, with instalments of principal of $7,000 in 1994, 1995 and 1996 and then annual instalments of principal of at least $20,000 until the remaining balance of the principal was paid.[18]
[18]According to a letter dated 13 May 2009 from Hunter Newns to the applicant, the loan amount of $187,362.51 represented the net amount to which he was entitled from Marcia’s estate.
In 1997, the applicant became dissatisfied with the instalment arrangement under the 6 June 1994 loan agreement and asked his parents for the balance of the loan of $144,316.34 to be repaid as a lump sum. The deceased and Catharine agreed on the condition that certain deductions be made, including for interest to be incurred by them on borrowings to fund the lump sum payment and amounts paid by Catharine to the applicant throughout his childhood. He was unaware that his parents were keeping a tally of payments they had made to him. The applicant received a net amount of $91,054.77. He agreed to his parents’ terms because he ‘was desperate to obtain a sufficiently large sum to fund the purchase of a unit in Perth’.
After the death of the deceased, in 2008 and 2009, the applicant was under ‘unrelenting pressure from Marcus and Phillipa to sign the [first and second deeds]’. This pressure included Phillipa constantly telephoning him to assert that their mother’s health would fail if any type of legal challenge were made to the deceased’s will, and screaming that he did not need a lawyer and to ‘just sign the Deed’. Marcus informed the applicant that he had a ‘war chest’ of $800,000 which he would use to send the applicant and his wife ‘broke’ through aggressive litigation if the applicant raised any kind of claim against the deceased’s estate or pursued any legal process. Marcus also said that, if the applicant failed to sign the deeds, he would never be able to visit Murndal again. The applicant was so distressed that, at one point, he emailed Hunter Newns and pleaded with them not to send him any more deeds. However, the executors continued to harass him and made it clear that his entitlement to $100,000 from the deceased’s estate would be withheld until he signed the deeds.
At the time the applicant signed the first and second deeds on 28 September 2009, he believed that he was honouring the deceased’s wishes by doing so and that Murndal would remain a vehicle for the advancement of the entire family. The wording of the deceased’s will and the conduct of the executors gave rise to an expectation that he and Annabelle would receive ongoing assistance from the deceased’s estate and this expectation prevented him from calling for further provision. That expectation was reinforced by the letters from Catharine referred to at [58]–[59] above. The applicant requested the executors to provide financial assistance to enable Annabelle to attend Townsville Grammar, but they ignored his request.
The applicant would not have ‘followed the Deed process’ if he had known that large sums of money, such as the proceeds of sale of artwork, were kept secret from him.
The applicant believed that the first and second deeds voided his rights to make a claim under pt IV of the Act but he now knows that is not correct.
All communications with the executors ended once the 28 September 2009 deeds were executed.
Relying upon the handwritten notations referred to at [20] above, the applicant deposed that Marcia’s 10,000 shares were a gift to her from her husband, William. Marcia never spoke of her shares in the company as anything other than ‘her shares’ and did not speak of them passing from her control when she died.
After Strategic Lawyers sent their letter of 23 October 2013 to Marcus,[19] they strongly advised the applicant to speak to a Victorian lawyer about a family provision claim. In accordance with that advice, the applicant contacted a solicitor who was an old school friend, Simon Kerr, who briefed a barrister, James Isles. On 18 December 2014, an originating motion making a claim under pt IV of the Act and seeking an extension of time within which to make the claim was filed.[20] Mr Kerr subsequently advised that he could not continue acting for the applicant due to a conflict of interest arising from his discovery that the firm at which he previously worked, Hunter Newns, acted for the deceased’s estate. At the suggestion of Mr Isles, the applicant engaged Stephen Byrne. The applicant stated that he had ‘no idea why Stephen and/or James Isles abandoned the proceeding issued by Simon Kerr and chose to issue the current proceeding’. He also stated that he does not recollect knowing at the time that this was done and that, if he had known, he would have simply accepted his lawyers’ decision.
[19]See [62] above.
[20]See [6] above.
The applicant gave the following evidence in cross-examination. In response to a question as to whether the executors had induced him to believe that he inherited 10,000 shares from Marcia, he stated that they ‘did not tell me either way’. His lawyers, Maddens, were not able to confirm conclusively as to who now owned the 10,000 shares and, at that point, he ended their engagement because the executors had made it clear that any research on the issue would be at his cost and his financial commitments were such that he could not fund any further legal work on the matter.
Counsel for the respondents put to the applicant that he or his daughter Annabelle had received the following payments from Catharine: $930 in 2008; $2,763 in 2011; $3,858 in 2012; $3,531 in 2013; $1,445 in 2014; $5,142 in 2015; $4,200 in 2016; $3,968 in 2019; $1,000 in 2020; and $5,000 in 2021. The applicant confirmed the accuracy of the 2021 figure, but said that he could neither confirm nor dispute the other figures.
We note that the payments referred to at [76] above total $31,837. In addition, the applicant received $100,000 from the deceased’s estate, $120,000 from the Pybus Trust[21] and $50,000 from the net proceeds of the deceased’s life insurance policy.[22] The total of these amounts is $301,837. At trial, senior counsel for the applicant stated in his opening address that the applicant should receive from the deceased’s estate $400,000 to $500,000 in addition to the $100,000 he had already received.
[21]See [34] above.
[22]See [31] above.
Respondent’s evidence at trial
The respondents relied upon an affidavit sworn by Marcus on 8 December 2016. Marcus’s evidence in that affidavit is summarised at [79]–[82] below.
Marcus provided the following explanation as to why Marcia’s estate did not include 10,000 shares in the company:
By a Declaration of Trust dated 29 July 1955, Marcia and [Mr Aitken] settled £10,000 to be held on trust for Marcia during her life and then to pay the settled sum to my father on Marcia’s death. … The Declaration of Trust provided that Marcia would be entitled to the income of the trust fund during her lifetime and upon her death pass to [the deceased]. On 8 February 1956, 10,000 shares in the company were issued to Marcia and Mr Aitken. …
The 10,000 shares were thereafter treated as being held by Marcia and Mr Aitken on trust for Marcia during her lifetime. …
Marcia died on 7 January 1990 and probate was granted to [the deceased] on 14 April 1992. On 22 June 1992, the 10,000 shares in the Company were transferred by the surviving trustee, Mr Aitken, to [the deceased], being the beneficiary entitled in equity under the Declaration of Trust dated 29 July 1955.
Marcus stated that the ASIC register incorrectly recorded 10,000 shares as being beneficially owned by Marcia and that the register had since been corrected. Exhibited to Marcus’s affidavit was an ASIC search dated 21 October 2016. Relevantly, Marcia’s details under the heading ‘Previous Members’ in this search were identical to the details in the search dated 3 January 2016 set out at [26] above, except that the word ‘no’ rather than ‘yes’ appeared under the heading ‘Beneficially held’.
After the death of the deceased, the process of entering into the deeds was a transparent and protracted negotiation within the family. Throughout the period from the deceased’s death until the deeds were signed, there were many telephone calls and emails between family members. The family did not put pressure on the applicant to sign the deeds. In support of that proposition, Marcus referred to the following extracts from emails from the applicant to Mark Stratmann of Hunter Newns dated 3 November 2008 and 25 August 2009, respectively:[23]
Is it possible to now circulate a settlement document around the family? One agreement for [the deceased’s] estate and the Pybus Trust would be very neat if we can incorporate the two matters in the one agreement.
…
I may complete a legal review [of the deeds] with a lawyer in Townsville who can sign off the advice page as [the applicant’s lawyer at Maddens] is on leave. This will reduce turn around time.
[23]Marcus also referred to a file note prepared by Mr Stratmann’s assistant of a conversation she had with the applicant on 28 August 2009, but in cross-examination the applicant disputed the accuracy of the file note.
Marcus denied threatening the applicant with a ‘war chest’ to send him and his wife ‘broke’ if he did not sign the deeds. The applicant ‘heavily influenced’ the process in relation to the settlement of the deceased’s estate. The applicant would regularly telephone each of the executors and threaten that he would bring a pt IV claim if the settlement was not achieved in a manner that satisfied him. The applicant exerted pressure on Catharine in relation to the dispute over the deceased’s estate. Whereas Catharine, Phillipa, Arbella and Marcus and the applicant each received $100,000 from the Pybus Trust, the applicant insisted on receiving a further $20,000 prior to signing any agreement. That amount was paid to him on 9 September 2009.
In cross-examination, Marcus stated that he felt that he had a conflict of interest in making decisions about the distributions of income from the deceased’s testamentary trust. He said that he did not want to make any decision contrary to the default provision in cl 3 of the deceased’s will, under which Catharine received all the income of the trust, and he left it up to her to decide how the income was disbursed. When Phillipa’s email of 16 April 2011 to the applicant[24] was put to Marcus, he stated that if there was a significant request for financial assistance from the estate, he would support Phillipa’s approach.
[24]See [56] above.
Principles regarding extension of time to make a pt IV claim
Part IV of the Act provides for applications to the Court for family provision.
At the time of the deceased’s death, s 91 of the Act allowed ‘a person for whom the deceased had responsibility to make provision’ to apply for an order that provision be made out of the deceased’s estate for his or her ‘proper maintenance and support’. Section 99 stipulated that an application under pt IV had to be made within six months after the date of the grant of probate of the will, except as follows:
the time for making an application may be extended for a further period by the Court after hearing such of the parties affected as the Court thinks necessary, and this power shall extend to cases where the time for applying has already expired but in all such cases the application for extension shall be made before the final distribution of the estate and no distribution of any part of the estate made prior to the application shall be disturbed by reason of the application or of any order made thereon.
In the present case, it was common ground that there had not been a final distribution of the deceased’s estate due to the life interest granted to Catharine and the fact that she is still alive.
In her reasons, the judge summarised the principles to be applied by her in determining the applicant’s application for an extension of time, and the questions to be addressed by her in making that determination, as follows:[25]
[25]Reasons, [11]–[14] (citations as in original).
Section 99 of the Act affords a discretionary power to the Court.[26] While the discretion is to be exercised in accordance with the subject matter, scope and purpose of s 91 of the Act, it is not to be confined by rigid rules.[27] A number of relevant factors ordinarily inform the exercise of the discretion, including the strength of an applicant’s claim for further provision;[28] the length of the delay;[29] the reasons for the delay;[30] and prejudice to other interested parties (other than the prejudice inherent in disturbing the terms of a distribution which would have been in their favour).[31]
Ordinarily, the Court does not embark on a detailed analysis of the claim,[32] but each case may be different in that regard. A provisional view is formed as to the merits of the case,[33] specifically as to whether it is ‘arguable’.[34] The burden of proof is on the applicant, who is seeking the indulgence of the Court to extend time. An applicant must establish that it is in the interests of justice to grant the extension.[35]
Accordingly, the questions to which the Court’s attention is directed are:
(a)does the plaintiff have an arguable case?
(b)what is the period of delay and the explanation for the delay?
(c)is there any prejudice to the beneficiaries if time is extended?[36]
Although the individual factors are to be considered, the Court’s task is to determine whether, having regard to all relevant matters, it is in the interests of justice that the plaintiff should be relieved from the usual consequence that applications outside the six month limitation period are not permitted.[37]
[26]Maher v Maher [2019] VSCA 161, [63] (Beach, McLeish and Niall JJA).
[27]Ibid; see also Ansett v Moss [2007] VSCA 161, [6] (Buchanan JA, Redlich JA and Cavanough AJA agreeing).
[28]Ansett v Moss … [11] (Buchanan JA, Redlich JA and Cavanough AJA agreeing).
[29]Maher v Maher … [64] (Beach, McLeish and Niall JJA).
[30]Ibid.
[31]Ibid.
[32]Ibid [69] (Beach, McLeish and Niall JJA).
[33]Harrison v Harrison [2011] VSC 459, [291] (Kaye J); ibid [72] (Beach, McLeish and Niall JJA).
[34]McCann v Ward [2010] VSC 452, [11] ([John] Dixon J).
[35]Erlich v Fleiszig [2013] VSC 63.
[36]McCann v Ward … [11] ([John] Dixon J).
[37]Erlich v Fleiszig [2013] VSC 63, [10] (Lansdowne AsJ).
The parties before us did not contend that the above principles were incorrect. Save for three observations, for the purposes of dealing with the issues raised in the application for leave to appeal, it is not necessary for us to further elaborate upon the applicable principles.
The first observation is that there is a general public interest in ensuring that litigation is brought, prosecuted and resolved in a timely manner.[38] A statutory limitation period represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within that period, notwithstanding that the enactment of that period may result in a good cause of action being defeated.[39] The discretion to grant an extension of time should be seen as requiring the person applying for it to show that his or her case is a justifiable exception to the rule that the welfare of society is best served by the limitation period in question.[40] Statutory limitation periods advance the administration of justice because they ensure that members of the public are able to order their personal and business affairs on the basis that, once a limitation period has expired, their rights and interests are no longer at risk of litigation. This is particularly so where parties to a dispute who are aware of their legal rights have negotiated a settlement and can reasonably consider that the dispute has been laid to rest.[41]
[38]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 552–3 (‘Brisbane South’).
[39]Brisbane South (1996) 186 CLR 541, 553.
[40]Brisbane South (1996) 186 CLR 541, 553–4.
[41]Prince Alfred College Inc v ADC (2016) 258 CLR 134, 167 [106] (‘Prince Alfred’).
The second observation is that delay beyond a statutory limitation period can be productive of unfairness and prejudice because evidence may be lost or its quality diluted. Witnesses may not be able to be called because they have died, are incapacitated or cannot be located. The memories of those witnesses who are able to be called may have faded or be influenced by reconstruction, or both.[42]
[42]Griffiths v Nillumbik Shire Council [2022] VSCA 212, [64].
The third observation is that the exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and this Court must respect the discretionary nature of the decision to be made when conducting appellate review of a primary judge’s decision.[43]
[43]Prince Alfred (2016) 258 CLR 134, 164–5 [99].
Judge’s reasons
In her reasons, the judge referred to the factual background in her earlier reasons for dismissing the respondents’ summary dismissal application. She stated that, although different legal tests applied to an application for summary dismissal compared to an application for an extension of time, ‘much the same’ evidence was relied upon by the parties in both applications.[44]
[44]Reasons, [9].
We will first discuss the judge’s reasons concerning whether the applicant had an arguable case. Secondly, we will consider her reasons as to whether there was any prejudice to other beneficiaries if time were extended. Finally, we will examine her reasons regarding the period of the applicant’s delay and whether he had a satisfactory explanation for it.
Judge’s reasons concerning whether the applicant had an arguable case
On the first issue, the judge referred to the following findings she made in her summary dismissal decision:
(a)It may be open to the applicant to impugn the deeds on public policy grounds, such as in Daebritz v Gandy.[45] However, the interaction of this argument with arguments impugning the deeds on contractual principles — unconscionable conduct, undue influence and breach of fiduciary duty — and the basis upon which the Court should proceed, was not fully explored.[46] The applicant’s reliance upon contractual principles is ‘attended by various complications’.[47] Although the applicant’s claim of undue influence appears to be stronger than his claim of unconscionable conduct, it suffers from the fact that the documentary evidence appears to favour the respondents’ case that any pressure applied was not undue.[48] However, ‘[t]here were factors … supporting the [applicant’s] case that the pressure may have been undue’.[49] The legal basis for the applicant’s arguments regarding a breach of fiduciary duty by the executors and a failure by them to provide material information was unclear.[50] Taken as a whole, the applicant’s arguments attempting to impugn the deeds ‘appear to face considerable difficulties’.[51]
(b)Based chiefly upon the size of the deceased’s estate, ‘it may be that the [applicant’s] claim was not lacking in merit’. Additionally, the evidence suggested that, since the deceased’s death, the applicant’s needs may have increased. However, consideration of those issues would be affected by the approach adopted in respect of the deeds.[52]
[45][2001] WASC 45.
[46]Reasons, [21], citing summary dismissal decision, [141]–[143].
[47]Reasons, [22], citing summary dismissal decision, [145], [154].
[48]Reasons, [23], citing summary dismissal decision, [147]–[148].
[49]Reasons, [23], [39], citing summary dismissal decision, [146]–[148].
[50]Reasons, [24], citing summary dismissal decision, [149]–[152], [154].
[51]Reasons, [20], citing summary dismissal decision, [154].
[52]Reasons, [25].
The judge noted that the parties did not make any further submissions on the legal approach to be adopted in respect of the deeds. Accordingly, the judge decided that her conclusion in the summary dismissal decision remained applicable. She described that approach as follows: ‘it would be open for the [applicant] to argue that the first and second deed are not a bar to his claim, and instead, at most [they] are an indication of what he thought was adequate provision at the time’.[53] The judge added that ‘even if the [applicant] were able to impugn the deeds on public policy grounds, he may not receive a more beneficial distribution through the statutory process than that which he already received through the execution of the deeds’.[54]
[53]Reasons, [34].
[54]Reasons, [35].
The judge made the following further observations regarding the deeds:[55]
The weight of the documents before the Court suggest[s] that the [applicant] was fully cognisant of the choice that he was making in signing the deeds and forgoing a Part IV claim. Although it would be open to the [applicant] to argue his case more substantially at a full trial, he would face considerable difficulties attempting to impugn the deeds based on the contractual grounds set forth. It would, however, remain open to the [applicant] to mount a public policy argument as per Daebritz and to attempt to invalidate the deeds on the basis that reliance on them would fail ‘to effectuate the specific policies of the Act’.[56] The strength or otherwise of this argument was not fully explored in oral arguments or submissions and the Court is in no better position to evaluate it as it was when the summary judgment reasons were delivered.
[55]Reasons, [57] (citations as in original).
[56]Bartlett v Coomber [2008] NSWCA 100, [57]–[58] (Mason P).
In relation to unconscionable conduct, undue influence, breaches of fiduciary duty and manipulation on the part of the respondents as against the applicant, the judge decided as follows:
(a)There was nothing further before the Court to alter the judge’s conclusion in the summary dismissal application that ‘the [applicant’s] case in … regard [to unconscionable conduct] appears very weak, based on his inability to establish a key threshold requirement, that is, he was under a special disadvantage or disability which seriously affected his ability to make a judgment as to his own best interests’.[57] Although the judge was satisfied that the applicant strongly identified with the Murndal dynasty and had a desire to preserve the farming property, she was not convinced that this left him unable to assert his own interests and therefore his claim of being at a special disability or disadvantage remained problematic.[58]
(b)The contents of emails the applicant sent to his siblings suggest that he understood that he was trading an opportunity to bring a pt IV claim for the benefit of maintaining the viability of the Murndal farming enterprise, for an accelerated payment of his entitlement under the deceased’s will, for the right of access to Murndal and for the intangible benefit of maintaining family goodwill.[59] It could be possible for the applicant to submit further evidence at trial to show that the respondents were exerting pressure on him to sign the deeds. However, the documents submitted by the respondents lend weight to their argument that the applicant was committing a ‘free act’ in that he was able to assess alternatives and decide between them, and that he did not make the decision to forego a pt IV application as a result of the effect of another’s will upon his own.[60] The respondents’ evidence considerably weakened the applicant’s case for undue influence, as it showed a consistent tone of amiability and sophisticated understanding of the proceedings on his part. Whilst the pressure could have come from sources that are not evident from the email exchanges between the applicant and his siblings, and it would remain open to the applicant to show that at trial, the overall weight of the documentary evidence would render that a difficult task.[61]
(c)The judge did not make an express finding upon the applicant’s contention that the executors had breached their fiduciary duty in failing to provide him with material information regarding the Murndal partnership and the company. She said that, although the applicant had an entitlement to information regarding the trust property, courts have mostly interpreted this as an entitlement to be provided with information after requesting it rather than a positive obligation upon the trustee to provide information to the beneficiaries, especially when the beneficiary is the holder of a mere expectancy.[62] She added that there was no evidence that the applicant had requested such information and that the executors had refused it. She also observed that the ‘interaction between the [respondents’] duty to inform the [applicant] about the contents of the trust, and how it sits alongside the duty to account and the defence of consent was not satisfactorily explored by the [applicant]’.[63]
(d)There was nothing further to alter the judge’s decision in the summary dismissal application that there did not appear to be an adequate factual basis for the applicant’s contention that the respondents had made representations which manipulated him into signing the deeds based upon an expectation that he would receive favourable distributions under the testamentary trust established by the deceased’s will.[64]
[57]Reasons, [38].
[58]Reasons, [55].
[59]Reasons, [43].
[60]Reasons, [44]. The judge cited Thorne v Kennedy (2017) 263 CLR 85, 99.
[61]Reasons, [56].
[62]Reasons, [45]. The judge cited Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405, 432. See also Reasons, [57].
[63]Reasons, [46].
[64]Reasons, [22], [47], citing summary dismissal decision, [153]–[154].
In relation to the applicant’s financial circumstances, the judge noted the salaries that the applicant and his wife received (approximately $151,000 and $70,000 respectively), their superannuation entitlements (approximately $148,000 and $54,000, respectively, with an additional superannuation asset worth $140,000) and the modest equity (approximately $100,000) in their family home in Townsville.[65] The judge also referred to evidence that the applicant suffers from permanent deafness as a result of a severe reaction to medication and his belief that this will curtail his working life. In relation to the value of the estate upon the death of the deceased, the judge noted that the executors valued it at $7 million whereas the applicant estimated its value at $15 million. The judge also observed that the respondents did not attest to any competing claims on the estate based upon their financial need. The judge concluded that her finding in the summary dismissal decision that the applicant ‘may have an arguable claim of financial need considering the considerable size of the estate’ remained unchanged.[66]
[65]Reasons, [48].
[66]Reasons, [52].
The judge noted that the facts material to an assessment of the merits of the applicant’s pt IV claim were ‘far from clear and [were] disputed’,[67] but added that his claim was ‘arguable’.[68] Her overall conclusion in relation to whether the applicant had an arguable claim was as follows:
The [applicant’s] claim is not hopeless, but does face significant difficulties. Accordingly, the merits of the [applicant’s] claim will not in this case be a determinative factor, but will be one factor amongst others that may tend either towards refusal or acceding to an extension of time.[69]
Judge’s reasons concerning prejudice to other beneficiaries
[67]Reasons, [53].
[68]Reasons, [54].
[69]Reasons, [59].
The judge referred to the specific obligations imposed upon Marcus and Catharine under the deeds, such as the accelerated payment of $100,000 to the applicant and allowing the applicant to stay at the Murndal property for not less than five days annually. She also referred to Maher v Maher,[70] where this Court considered the question whether, in the absence of direct evidence of prejudice, a court may rely upon a presumption of prejudice based upon the proposition that beneficiaries may have organised their affairs upon the basis that they would receive their entitlements under a will once the statutory period for a pt IV application expired. The judge further referred to McCann v Ward,[71] in which John Dixon J held that no prejudice was demonstrated in that case because the life interest upon which the defendants’ entitlements were contingent was still extant.
[70][2019] VSCA 161.
[71][2010] VSC 452.
The judge’s conclusion in relation to the issue of prejudice was as follows:
The prejudice to the [respondents] in granting an extension of time is not excessive as the estate has not yet been distributed and the specific acts undertaken by the [respondents] in reliance on the deeds were not onerous. However, the significant period of delay means that the [respondents] are likely to have arranged their affairs in reliance on the deeds. All things considered, the issue of prejudice neither falls heavily for the [respondents] nor the [applicant].[72]
Judge’s reasons concerning the applicant’s delay in commencing a pt IV proceeding
[72]Reasons, [95].
The judge noted that the applicant relied upon the following five bases for his delay in commencing a proceeding under pt IV of the Act:
(a)The applicant believed that he may be entitled to 10,000 shares in the company as residuary beneficiary under Marcia’s will, that those shares were very valuable and his entitlement to them would have avoided the need for an application under pt IV of the Act, and that he was not disabused of his belief until 2016.
(b)The executors failed over an extended period of time to provide the applicant with copies of documents and other information necessary for him to decide whether to commence a proceeding under pt IV of the Act.
(c)The applicant was under special disadvantage in that he was concerned at all times to give effect to the deceased’s wishes that the Murndal farming enterprise remain viable.
(d)There was unconscionable conduct on the part of the executors in the circumstances leading up to the execution of the deeds.
(e)There were ongoing negotiations between the applicant and the executors.
The judge’s reasons in relation to the applicant’s first and second bases were as follows:[73]
On the [applicant’s] evidence, there was significant confusion surrounding his potential entitlement to 10,000 shares in the … company as per Marcia’s will. The [applicant] does not contend that the [respondents] deliberately concealed information regarding [Marcia’s] estate. Regarding the [applicant’s] request in 2008, the estate lawyers sent the [applicant’s] lawyers 23 documents regarding Marcia’s estate. From these documents, in 2009 the [applicant’s] lawyer, Mr Pendergast of Maddens, advised the [applicant] that the nature of Marcia’s interest in the shares was unclear. Subsequent lawyers were equally unable to provide the [applicant] with definitive information regarding the status of the shares and the [applicant’s] entitlement to them per Marcia’s will. It was only in 2016, in documents related to the present proceeding, that the [applicant] ascertained that Marcia’s shares in the … company had in fact been held on trust … for Marcia for life, with the remainder to the [deceased] and, accordingly, did not form a part of her estate.
Whether or not the [applicant] was entitled to shares in the … company was a material fact relevant to the [applicant’s] claim for family provision. Had the [applicant] come into possession of 10,000 of a total of 40,005 issued shares in the … company, which is valued at at least $7 million, the necessity and likelihood of success of a Part IV claim would have both diminished significantly.
The lack of knowledge by an applicant of a material fact, which is not caused or contributed to by any fault or lack of action on the applicant’s part, may provide a ground for extension of time, provided that the applicant acts promptly to enforce their rights.[74] It was not unreasonable for the [applicant] to believe he had an interest in the … shares [in the company], given the fact that the ASIC register showed Marcia as a beneficial shareholder and also given the advice of various lawyers who were not able to determine whether the [applicant] had an interest in the shares as residuary beneficiary of Marcia’s estate.
If the [respondents] had deliberately concealed material information regarding Marcia’s estate from the [applicant], it could be the case that they hid a material fact, which caused the [applicant’s] decision not to bring a claim under Part IV of the Act, would be a justifiable reason for the delay.[75] However, there is no evidence that the [respondents] attempted to conceal the nature of Marcia’s interest in the … company and the [applicant] conceded in cross examination that he did not believe that the [respondents] deliberately concealed information pertaining to this fact.
As such, this element of the case turns on timing. If, after disabusing himself of the belief that he was entitled to Marcia’s shares, the [applicant] had promptly pursued a family provision claim, then it might be that the delay was reasonable. This is not what occurred. The [applicant] suspected that he had an interest in the … company due to being the residuary beneficiary of Marcia’s estate at all relevant times, including during the time that he was negotiating the deeds with his siblings. He did not take serious steps to resolve either issue until 2016, when he issued proceedings for both. Given the timing, it is difficult to explain the [applicant’s] delay as being caused by his pursuit of Marcia’s shares and his evidence that this was the case is rejected.
…
The [applicant] contends that with more information, he would have been better able to understand the likelihood (or not) of receiving disbursements from the trust created pursuant to his father’s will, and that this would have helped him to decide whether or not … he should make a family provision claim. This explanation for delay is unsatisfactory. The [applicant] has had legal representation for much of the intervening time between the grant of probate … and the bringing of proceedings under Part IV of the Act in 2016. The [applicant] could have requested access to specific documents personally, or through his legal representation, either prior to signing the deeds, or indeed at any point since.
As observed, if the [respondents] deliberately concealed material information from the [applicant] which would impact his decision as to whether or not to make a Part IV claim, as in Re Nassim (deceased)[76] the [applicant] might be able to explain his decision to delay bringing a claim. On the evidence, however, the evidence does not support that the [respondents] deliberately concealed any pertinent information from the [applicant] regarding potential distributions of the trust. The [applicant] claims that the information made available to him by the [respondents] was confusing and equivocal, which may be the case, but that does not in itself indicate deliberate concealment of material facts.
[73]Reasons, [71]–[77] (citations as in original).
[74]Re Nassim [1984] VR 51, 57 (Nicholson J).
[75]Ibid.
[76][1984] VR 51.
In relation to the third basis upon which the applicant relied, namely, special disadvantage, the judge concluded as follows:
The [applicant] asserts that one reason he did not bring a family provision claim was due to his desire to uphold his father’s wishes to preserve the Murndal farming enterprise. … The [applicant’s] evidence is accepted that when his access to the Murndal property was restricted, if not legally, then by virtue of the deterioration of family relations, he re-evaluated his decision to not bring a family provision claim.
Although it is understandable that the [applicant’s] priorities may have changed as his relationship with the [respondents] worsened, a change of mind is not usually a sufficient reason to grant an extension of time. …
The fact that the [applicant] once prioritised the viability of the Murndal farming enterprise and therefore chose not to bring a family provision claim within time, and now is persuaded that it is not in his interest to maintain the family legacy is, on its own, not a compelling reason to extend time for a Part IV claim.[77]
[77]Reasons, [78]–[80].
In relation to the fourth basis upon which the applicant relied, namely, unconscionable conduct, the judge stated that the evidence on this issue was ‘far from settled’.[78] However, she added that the weight of the documentary evidence favoured the respondents’ version of events, that is, that they did not act unconscionably.[79] She stated that the facts in the present case were very different from those in Ng v Morgan.[80] In Ng, Slattery J determined that the plaintiff in that case had not made a genuinely free decision not to pursue a claim due to her will being completely overborne by her mother who threatened her with legal prosecution for a forgery incident related to the will of the deceased. The judge also stated that the facts in the present case were different from those in Woodward v Holmes.[81] In Woodward, Macready AsJ held that the plaintiff in that case was under a misapprehension as to whether she would be solely entitled to the family home and, once her entitlement was clarified, her further delay was caused by her need to obtain legal advice and an illness.
[78]Reasons, [82].
[79]Reasons, [82].
[80][2014] NSWSC 536 (‘Ng’).
[81][2009] NSWSC 707 (‘Woodward’).
In relation to the fifth basis upon which the applicant relied, namely, the existence of ongoing negotiations, the judge concluded that this basis did not provide a reasonable explanation for the applicant’s delay because the evidence did not disclose that there were ongoing negotiations beyond 2009 when the deeds were signed.[82]
Judge’s overall conclusion
[82]Reasons, [86].
The judge’s overall conclusion was that ‘the determinative factor is that the [applicant] has failed to provide [a] satisfactory explanation for his delay’. She added that ‘[t]his lack of adequate explanation coupled with the weakness of [the applicant’s] claim are such that in all the circumstances, it is not in the interests of justice to grant an extension of time under s 99 of the Act’.[83]
[83]Reasons, [96].
Grounds of appeal
The grounds of appeal are in the following terms:
1The learned primary judge erred in considering that, in order for the [applicant] to successfully impugn the deeds on public policy grounds, it was necessary to explore the interaction of those grounds with arguments impugning the deeds on contractual principles. (Final Reasons [21])
2The learned primary Judge should have found that the [applicant], by virtue of his acceptance that ‘Murndal’ should continue to be conducted as a viable grazing operation by a member or members of the Winter‑Cooke family, was especially vulnerable to undue influence, unconscionable conduct or other breaches of fiduciary duty. (Final Reasons [22])
3The learned primary judge erred in holding that it was necessary for the [applicant] to establish that representations made by the [respondents] had manipulated him into an expectation that, if he signed the deeds, he would receive favourable distributions under the terms of the testamentary trust. (Final Reasons [22])
4The learned primary Judge erred in examining the [applicant’s] claim of undue influence in isolation from his claim of unconscionable conduct. (Final Reasons [23])
5The learned primary Judge erred in holding that there was no legal basis for the contention that the [respondents] were under a fiduciary duty to provide material information to the [applicant]. (Final Reasons [24])
6The learned primary Judge erred in holding that consideration of the strength of the [applicant’s] claim would be affected by the approach adopted by the Court in respect of the deeds. (Final Reasons [25])
7The learned primary Judge erred in considering that ‘even if the [applicant] were able to impugn the deeds on public policy grounds, he may not receive a more beneficial distribution through the statutory process than that which he already received through the execution of the deeds’. (Final Reasons [35])
8The learned primary Judge erred in regarding the [applicant’s] ability to negotiate a measure of additional financial benefit for himself before signing the deeds as militating against the especial vulnerability identified in Ground 2 above. (Final Reasons [37])
9The learned primary Judge erred in considering that the fact that the [applicant] knew that he had mutually exclusive choices either to pursue a Part IV claim or to receive accelerated payment under his father’s Will, a right of access to ‘Murndal’ and the intangible benefit of maintaining family goodwill, meant that his execution of the deeds was a ‘free act’ uninfluenced by the impact of the [respondents’] will on his own. (Final Reasons [43] and [44])
10The learned primary Judge erred in holding that the obligation of a trustee to provide information to a beneficiary can only arise in the event of a request by the beneficiary for the information. (Final Reasons [45])
11The learned primary Judge erred in considering it necessary for the Court to examine ‘the interaction between the [respondents’] duty to inform the [applicant] about the contents of the trust and how it sits alongside the duty to account and the defence of consent’. (Final Reasons [46])
12The learned primary Judge erred in failing to make findings as to the obligations of the [respondents] in exercising the discretion conferred by the terms of the testamentary trust after the deeds had been executed. (Final Reasons [47])
13The learned primary Judge erred in requiring to be convinced that the [applicant’s] strong identification with the Murndal dynasty and his desire to preserve the property in the family left him unable to assert his own interests. (Final Reasons [55])
14In light of her finding at Final Reasons [71] that it was only in 2016 that the [applicant] learned of the true position regarding Marcia’s shares, the learned primary Judge erred in finding that the [applicant] had been required to advance evidence that the [respondents] had attempted to conceal the true nature of Marcia’s interest in the Murndal company (Final Reasons [74]) or had deliberately concealed from the [applicant] pertinent information regarding potential distributions from the trust. (Final Reasons [77])
15The learned primary Judge erred in failing to make findings of fact in relation to matters relied on by the [applicant] to explain his delay in pursuing the issue of Marcia’s shares before 2016. (Final Reasons [75])
16The learned primary Judge erred in applying to the present case the proposition that ‘a change of mind is not usually a sufficient reason to grant an extension of time’. (Final Reasons [79])
17The learned primary Judge erred in holding that ‘the evidence surrounding the alleged unconscionable conduct is far from settled’ and in relying on the fact that the present case is distinguishable from Ng … (Final Reasons [82])
18The learned primary Judge erred in failing to understand that the [applicant’s] reliance on ‘negotiations’ occurring after the execution of the deeds was by way of explaining his expectations as to the administration of the trust and access to the Murndal homestead for himself and his family. (Final Reasons [96])
19The learned primary Judge erred in identifying as ‘the determinative factor’ that the [applicant] had failed to provide satisfactory explanation for his delay. (Final Reasons [96])
20The learned primary Judge should have granted the extension of time sought by the [applicant].
At the commencement of the hearing of the application for leave to appeal, counsel for the respondents conceded that, if the judge had found that the applicant had provided a satisfactory explanation for his delay, in the light of the findings that she made on the question of an arguable case and prejudice to other beneficiaries, she would have been bound on her reasoning to grant an extension of time. In the light of that concession, in accordance with a suggestion from the Bench, the parties’ oral submissions focused upon grounds 14 and 15.
Grounds 14 and 15: Applicant’s reasons for delay
Parties’ submissions on grounds 14 and 15
In oral submissions, the applicant submitted that his delay in bringing a claim under pt IV of the Act was reasonable for the following reasons:
(a)Following the execution of the first and second deeds on 28 September 2009, he had an expectation that his rights under the deeds — in particular, his right to visit the Murndal homestead every year with Annabelle — would be achieved. That expectation endured until the end of 2012, when Marcus’s letter of 23 November 2012 made it clear that the applicant had lost his primary benefit under the deeds.[84]
(b)Following Phillipa’s email of 16 April 2011, he had an expectation that he might get financial assistance from the deceased’s testamentary trust if he could show hardship to the trustees.[85]
(c)Following Catharine’s letter of 31 July 2012, he had an expectation that he would receive annual distributions from her. Assuming that the proposed restructure was set up during 2012 or early 2013, distributions might be determined at the earliest in the third quarter of the 2014 financial year and the applicant might hope to receive a distribution in late 2014 or possibly 2015.[86] Although he received modest amounts from Catharine, these were not paid from the deceased’s estate.[87]
(d)He initially attempted to ascertain whether he owned Marcia’s 10,000 shares. The executors and their solicitors never informed him that Marcia was not beneficially entitled to those shares and that those shares did not form part of her residuary estate. Although the executors’ solicitors provided documents to the applicant, his solicitors were not able to advise him definitively whether or not he was entitled to those shares. The position was not made clear until after Marcus filed his affidavit in the current proceeding on 8 December 2016 and the applicant subsequently received advice from counsel in 2020.
(e)He was reluctant to commence proceedings against his mother, brother and sister. The modest amounts he received from his mother may have contributed to this reluctance. However, he eventually engaged Mr Kerr, who filed an originating motion making a claim under pt IV of the Act on 18 December 2014.[88] Mr Kerr later discovered that he had a conflict of interest and withdrew. The applicant had limited funds and had to engage new solicitors. The 2014 proceeding lapsed and his new solicitors commenced the current proceeding on 26 February 2016. He did not know why his lawyers abandoned the first proceeding and commenced the current proceeding.
(f)The executors failed over an extended period to provide him with documents and information which were necessary for him to decide whether to bring a claim under pt IV of the Act, such as the precise value of the estate and the fact that Marcus was never going to exercise the discretion to distribute funds from the testamentary trust to the applicant.
(g)He was under a special disadvantage because he was concerned to give effect to the deceased’s wishes that the farm be kept viable.
[84]See [61] above.
[85]See [56] above.
[86]See [58] above.
[87]See [76] above.
[88]See [74] above.
For completeness, we note that the emails the applicant sent to the executors or Hunter Newns in the period from 9 November 2008 until 28 September 2009 indicate that he was heavily involved in negotiating the terms of the first and second deeds. They also indicate that, at times, he was firm in seeking the inclusion of provisions which he regarded as beneficial to him and his family and pressed for the deeds to be finalised and signed. The emails do not suggest that he was being forced to enter into a transaction against his wishes or that he regarded himself as not securing valuable concessions from the executors in return for giving up the right to claim further family provision from the deceased’s estate. The following three examples convey the flavour of his communications:
(a)In his email dated 26 November 2008 to Hunter Newns, the applicant stated:
If we follow nothing but a legal path then my advice from approx 6 months ago is that ‘legally’ I should follow additional benefit under fair provision and I think my sisters have even a stronger case that could potentially leave them some millions of dollars of assets, given some type of legal outcome under Victorian Law. …
…
I believe that myself and both sisters are happy to sign away any rights given our respect to Dad’s sentiment and wishes, and confidence in Marcus’s ability to manage the property moving forward. …
…
I simply hope that our family settlement can somehow capture Dad’s sentiment in its execution.
(b)In his email dated 5 June 2009 to Hunter Newns, the applicant stated:
Could I please now ask you to draw up an agreement so I can settle my side of Dad’s estate?
Dad was very clear in his will why my benefit was only $100K against a 10M estate, and on that basis I am happy to honour Dad’s wishes as below and wish all current and future generations the very best with managing and taking the property forward.
…
[M]essage is without prejudice and is not intended as a legal document, rather a proposal and basis for a release to [be] drawn up for review.
(c)In his email dated 18 June 2009 to Hunter Newns, the applicant stressed the importance to him of two of his proposals, namely, the right of access to Murndal and payments to be made to all the deceased’s children in the event of Marcus selling Murndal. He added: ‘I have very little room to move, if any, on these positions as I feel they are genuine, supportable, and reasonable and parallel with Dad’s wishes’. After Marcus agreed to these proposals, the applicant sent an email to Hunter Newns on 20 June 2009 stating: ‘Can we please go ahead and draw up the Deed or Release for [the applicant and his wife] to wrap up the estate matters.’
For the above reasons, the applicant has failed to establish that the judge erred in concluding that any unconscionability on the part of the executors did not provide a satisfactory explanation for his delay.
We will now consider whether any ongoing negotiations between the applicant and the executors provided a satisfactory explanation for his delay until 26 February 2016 in commencing his proceeding under pt IV of the Act. The short answer is that, as found by the judge, after the execution of the deeds on 28 September 2009, there were no negotiations between the applicant and the executors for additional provision to be made for him under the deceased’s estate.[97]
[97]The applicant’s request in his letter to Catharine and Marcus dated 26 October 2011 that the first or second deed be amended (see [57] above) does not constitute a negotiation for additional provision for him from the deceased’s estate. In any event, that request was rejected on 27 November 2011 and there was no further correspondence in relation to it. At some stage, the applicant also requested Catharine to alter her will in a manner that benefitted him. Catharine rejected the request. This request also does not constitute a negotiation for additional provision for the applicant from the deceased’s estate.
The only discussions regarding further payments to be made to the applicant from the income of the deceased’s estate took place in April 2011 and later in October 2011 in relation to the payment of Annabelle’s school expenses.[98] Those discussions could not be described as ‘negotiations’ because the executors did not agree to provide financial assistance to the applicant or Annabelle and there is no evidence that the applicant engaged in any further discussions with the executors in relation to such assistance. In any event, even if the discussions could be described as negotiations, they concluded on 27 November 2011[99] and therefore could not constitute a satisfactory explanation for any delay beyond that date.
[98]See [56]–[57] above.
[99]See [57] above.
We do not regard Catharine’s letters of 31 July and 20 August 2012 to the applicant and his siblings as forming part of any negotiations. That is because there is no evidence of any communications by the applicant with Catharine either before or after those letters in relation to the provision of financial assistance to him.
Even if Catharine’s letters of 31 July and 20 August 2012 are regarded as involving negotiations, for the following reasons, such negotiations could not provide a satisfactory explanation for the applicant’s delay in making a pt IV claim after 31 December 2013.
We will assume for the sake of analysis that Catharine’s letters caused the applicant to believe that she would take steps to ensure that, once the proposed restructure was completed, income would be distributed to the applicant and his siblings equally around the third quarter of each year. On that basis, the applicant could have expected to receive the first distribution in the third quarter of the 2013 financial year, namely, between 1 January and 31 March 2013.[100] Even if that period is extended to 31 December 2013, the applicant would have known by then that no distributions had been made to him in accordance with Catharine’s letters. Accordingly, even if the applicant delayed making a pt IV claim because he genuinely believed that he would receive distributions in accordance with those letters, he could no longer have had such a belief after 31 December 2013.
[100]As appears from [58] above, in her letter of 31 July 2012, Catharine stated that distributions were likely to occur on an annual basis when the books were reviewed, which she anticipated would be the third quarter of each financial year.
It is to be doubted that the applicant had a genuine belief until 31 December 2013 that he would receive distributions in accordance with Catharine’s letters of 31 July and 20 August 2012. That is because there is no evidence that he communicated with Catharine, or any of the other executors, between 20 August 2012 and 31 December 2013 enquiring as to why he had not received any distributions in accordance with Catharine’s letters. In any event, even if it is assumed that those letters provided a satisfactory explanation for the applicant’s delay in making a pt IV claim prior to 31 December 2013, they did not provide such an explanation for the period from 1 January 2014 until 26 February 2016. Implicit in the fact that the applicant followed the advice of Strategic Lawyers on around 23 October 2013 that he speak to a Victorian solicitor about making a family provision claim is that, around that time, he did not expect to receive any further payments from the deceased’s estate unless he made such a claim.
We reject the applicant’s submission that, in accordance with Catharine’s letter of 31 July 2012, the earliest period he might expect a distribution was the third quarter of the 2014 financial year, as distinct from the third quarter of the 2013 financial year. However, even if the applicant’s submission is accepted, it is clear from what we have stated at [157] above that, around 23 October 2013, he did not expect to receive any further payments from the deceased’s estate.
It follows that the judge did not err in concluding that negotiations between the applicant and the executors did not provide a satisfactory explanation for his delay.
The cases of Davies and Hunt upon which the applicant relied do not assist him, as those cases turned upon their own facts. In the present case, for the reasons we have already discussed, when one considers the entirety of the applicant’s personal circumstances and the matters he claims influenced his decision to delay the commencement of a proceeding under pt IV of the Act, the inevitable conclusion is that he has not provided a satisfactory explanation for his delay.
Finally, in this context, we note that in cross-examination Marcus referred to a loan under which interest of $20,000 per annum was paid to the estate and was disbursed at Catharine’s discretion. It is not clear whether this is the loan that resulted from the proposed restructure referred to in Catharine’s letter of 31 July 2012 to the applicant and Arbella.[101] It will be recalled that, in that letter, Catharine stated that the money to be distributed would be the interest to be received on the loan resulting from the proposed restructure and that it was her intention to use the money to benefit her four children equally on an annual basis. If Catharine and Marcus were referring to the same loan, an equal annual distribution to the applicant, Marcus, Phillipa and Arbella of the interest of $20,000 would have resulted in each of them receiving $5,000. It will also be recalled from [76] above that Catharine made a number of payments to the applicant or his daughter in 2008 and all subsequent years other than 2009, 2010, 2017 and 2018. The payments she made to the applicant or his daughter in the years 2013 to 2021 totalled $24,286, an average of $2,698 per annum. We have noted these matters purely for completeness. They have not influenced our conclusion in relation to grounds 14 and 15.
[101]See [58] above.
Whether analysed as a sequence of individual explanations or as parts of a single explanation for delay, the applicant’s arguments, viewed together, do not provide a satisfactory explanation for the delay of over six years from the expiration of the statutory period within which a proceeding under pt 4 of the Act had to be commenced. Of course, the scale of that delay has to be considered in the light of the fact that the statutory period for commencing proceedings after a grant of probate is only six months. The applicant’s delay is 12 times the statutory period. Although, as we have explained, some parts of the period of his delay were justifiable, there are simply too many unexplained periods of inaction. Viewed in that context, it was well open to the judge to be not satisfied that there was a reasonable explanation for the whole period of delay. We have reached the same conclusion.
As grounds 14 and 15 are not made out, leave to appeal must be refused in relation to them.
Remaining grounds
As we have already stated, in the light of the concession of the respondents’ counsel set out at [109] above, the parties’ oral submissions focused mainly on grounds 14 and 15 dealing with the issue of delay. They relied predominantly upon their written cases in relation to the remaining grounds.
Many of the remaining grounds assert that the judge made various factual or legal errors without adequately explaining how the asserted errors vitiated the judge’s decision to refuse an extension of time. Rather than discussing each of the remaining grounds individually, it is convenient to consider some of them together.
Grounds 1, 2, 4, 6, 7, 8, 9, 13 and 17 seek to impugn findings made by the judge upon issues relating to the merits of the applicant’s proposed pt IV claim and, in particular, whether there was a sufficient basis for vitiating the first and second deeds and treating them as not being a bar to the making of such a claim. As is apparent from our summary of the judge’s reasons, the judge did not regard the deeds as precluding the making of a pt IV claim.[102] She concluded that, whilst the applicant’s claim had some problematic aspects which weakened it, overall the claim was arguable and therefore its merits did not pose an obstacle to the granting of an extension of time.
[102]That was despite the fact that the taking of steps by the applicant to enforce his rights of access to the Murndal homestead under the second deed may be seen as being inconsistent with his contention that the release he gave to the executors under that deed was unenforceable on public policy grounds. See [62] above.
As we have stated at [112] above, in his oral submissions, the applicant contended that the judge assessed his claim under pt IV of the Act as weak, that the judge was wrong in making that assessment and that his claim was ‘quite strong’.
The judge did not, in terms, assess the applicant’s claim under pt IV of the Act as weak. Although she referred to ‘the weakness of [the applicant’s] claim’,[103] it is likely that this was a reference to the problematic aspects of the claim that she had identified earlier in her reasons. In any event, she found that the applicant’s claim was arguable.[104]
[103]Reasons, [96]. See [107] above.
[104]Reasons, [54], [96]. See [99], [107] above.
We have considered the judge’s reasons for the assessment she made regarding the strength of the applicant’s pt IV claim and the evidence before us that is relevant to that assessment. We are unable to find any House v King error[105] in the judge’s assessment or her reasons for it. Even if we had found such error and were at liberty to exercise the discretion to grant an extension of time afresh, it is unlikely, based upon the evidence we have reviewed, that our assessment of the strength of the applicant’s claim would have been materially more favourable to the applicant than the judge’s assessment. That is so even if the applicant’s execution of the first and second deeds were to be completely disregarded.
[105]See [14] above.
Grounds 3 and 12 assert that the judge erred:
(a)in holding that it was necessary for the applicant to establish that representations made by the respondents had manipulated him into an expectation that, if he signed the first and second deeds, he would receive favourable distributions under the terms of the testamentary trust; and
(b)in failing to make findings as to the obligations of the respondents in exercising the discretion conferred by the terms of the testamentary trust after the deeds had been executed.
For the reasons set out at [152]–[157] above, any expectations on the part of the applicant engendered by the executors that the applicant would receive distributions from the testamentary trust could not constitute a satisfactory explanation for the applicant’s delay after 31 December 2013. Accordingly, even if grounds 3 and 12 had any merit, they could not assist the applicant in persuading this Court to grant him leave to appeal.
Grounds 5, 10 and 11 assert that the judge erred:
(a)in holding that there was no legal basis for the contention that the respondents were under a fiduciary duty to provide material information to the applicant;
(b)in holding that the obligation of a trustee to provide information to a beneficiary can only arise in the event of a request by the beneficiary for the information; and
(c)in considering it necessary for the Court to examine ‘the interaction between the [respondents’] duty to inform the [applicant] about the contents of the trust and how it sits alongside the duty to account and the defence of consent’.
For the reasons set out at [133]–[141] above, the applicant has not demonstrated that any failure by the respondents to provide information to him constituted a satisfactory explanation for his delay after 31 December 2013. Accordingly, even if grounds 5, 10 and 11 had any merit, they could not assist the applicant in persuading this Court to grant him leave to appeal.
Ground 16 asserts that the judge erred in applying to the present case the proposition that ‘a change of mind is not usually a sufficient reason to grant an extension of time’. At [144]–[145] above, we concluded that, even if the applicant changed his attitude after Marcus sought to deny him and his family access to the Murndal homestead on 23 November 2012, the applicant’s change of attitude could not provide a satisfactory explanation for his delay after that date. For the reasons set out at [152]–[157] above, the same conclusion would apply if the applicant had changed his attitude after it became apparent to him by 31 December 2013 that he and his daughter would not receive additional distributions from the deceased’s estate. Accordingly, even if ground 16 had any merit, it could not assist the applicant in persuading this Court to grant him leave to appeal.
Ground 18 asserts that the judge erred in failing to understand that the applicant’s reliance upon ‘negotiations’ occurring after the execution of the deeds was by way of explaining expectations as to the administration of the trust and access to the Murndal homestead for himself and his family. For the reasons discussed at [152]–[157] above, any expectation the applicant had that the administration of the testamentary trust would result in distributions being made to him could not provide a satisfaction explanation for his delay after 31 December 2013. For the reasons discussed at [144]–[145] above, any expectation the applicant had regarding access to the Murndal homestead could not provide a satisfactory explanation for his delay after 23 November 2012. Accordingly, even if ground 18 had any merit, it could not assist the applicant in persuading this Court to grant him leave to appeal.
Ground 19 asserts that the judge erred in identifying as ‘the determinative factor’ that the applicant had failed to provide a satisfactory explanation for his delay. For the reasons set out at [166]–[169] above, the judge did not err in finding that the applicant’s claim under pt IV of the Act was arguable and in identifying problems with the claim which weakened its prospects of success. Even if it were possible for us to find that the judge had overstated the problems with the claim, it would not be possible for us to conclude that the strength of the claim was such as to warrant the granting of an extension of time notwithstanding the absence of a satisfactory explanation for his lengthy delay. That is particularly so in the light of the fact that the delay occurred in circumstances where Maddens had informed the applicant at around the time the deeds were executed in September 2009 that he had ‘a good Part IV claim’ and he made a conscious decision not to pursue it.[106]
[106]See [49] above.
As appears from [101] above, the judge held that the issue of prejudice to the respondents did not fall heavily for either the applicant or the respondents. The applicant has not sought to challenge that finding. Accordingly, as the judge found that the issue of prejudice to the respondents was a neutral factor and that, whilst the applicant’s claim was arguable, it had difficulties, she did not err in treating the absence of a satisfactory explanation for his delay as the determinative factor in the exercise of her discretion. It follows that ground 19 is not made out.
Ground 20 asserts that the judge should have granted the extension of time sought by the applicant. As we have found that the applicant has not made out grounds 1 to 19 or that those grounds cannot assist him in persuading this Court to grant him leave to appeal, ground 20 must be rejected.
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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SCHEDULE OF PARTIES
ROBERT EDMUND WINTER-COOKE First applicant and SAMUEL MARCUS WINTER-COOKE (as executor and trustee of the estate of Marcia Wilshire Winter-Cooke, deceased, and as executor and trustee of the estate of Samuel Robert Winter-Cooke, deceased) First respondent CATHARINE FRANCES WINTER-COOKE (as executor and trustee of the estate of the late Marcia Wilshire Winter-Cooke and as executor and trustee of the estate of the late Samuel Robert Winter-Cooke) Second respondent PHILLIPA ROSEMARY RISBEY (as executor and trustee of the estate of the late Marcia Wilshire Winter-Cooke and as executor and trustee of the estate of the late Samuel Robert Winter-Cooke) Third respondent WINTER COOKE (MURNDAL) PTY LTD (ACN 004 314 443) Fourth respondent
5
18
0