Wyee v Debbie-Lee Cairns as executor of the will of Graham John Smith - [2019] WASC 317

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WYEE -v- DEBBIE-LEE CAIRNS as executor of the will of Graham John Smith [2019] WASC 317
CORAM:   MASTER SANDERSON
HEARD:   15 AUGUST 2019
DELIVERED          :   15 AUGUST 2019
PUBLISHED           :   3 SEPTEMBER 2019
FILE NO/S:   CIV 2806 of 2017
MATTER:   The Family Provision Act 1972
The Will of Graham John Smith late of 24 Candish Grove, Seville Grove in the State of Western Australia, truck driver, deceased

BETWEEN: GRAHAM JOHN WYEE
Plaintiff

AND

DEBBIE-LEE CAIRNS as executor of the will of Graham John Smith
First Defendant

DEBBIE-LEE CAIRNS
Second Defendant

CHIQUETTA HANING
Third Defendant

Catchwords:

Probate - Appointment of third party to sell estate property - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Trustees Act 1962 (WA)

Result:

Third party appointed to conduct sale

Category: B

Representation:

Counsel:

Plaintiff	:	Mr D G Lang
First Defendant	:	Mr J T London
Second Defendant	:	Mr J T London
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Macdonald Rudder
First Defendant	:	Robertson Hayles Lawyers
Second Defendant	:	Robertson Hayles Lawyers
Third Defendant	:	No appearance

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

Gonciarz v Bienias [2019] WASC 104

MASTER SANDERSON:

The plaintiff commenced these proceedings which were brought under the Family Provision Act 1972 (WA) on 25 October 2017. The plaintiff sought additional provision from the will of Graham John Smith (the deceased). A mediation took place in the early part of 2018 and the matter was settled. The settlement was contained in a consent order made by Registrar S Boyle on 12 March 2018. The terms of that consent order were as follows:
1.Upon payment to the plaintiff in the action of the sum of $80,000 upon the sale of the home at 24 Candish Grove, Seville Grove, the action be dismissed.
2.The sum referred to above be paid as to:
(a)$45,000 from the share of Debbie-Lee Cairns under the will of Graham John Smith made 15 May 2016; and
(b)$35,000 from the share of Chicquetta Haning.
3.The action be stayed pending the sale of the home above and should it not be sold within 120 days any party shall be at liberty to apply to re-list for the purpose of obtaining orders regarding the mechanics of the sale.
4.Each party bear their own costs of the action save for the executor's costs be paid from the estate on a trustee basis.
The subject property was not sold and, on 12 March 2019, the plaintiff's solicitors wrote to the court seeking to have the matter relisted pursuant to what was effectively a liberty to apply provision contained in the order. The application for relisting was supported by an affidavit of David Griffith Lang sworn 9 February 2019 and a further affidavit of Mr Lang sworn 21 March 2019. Attached to Mr Lang's first affidavit and appearing as attachment 'DGL1' is a bundle of correspondence passing between the plaintiff's solicitors and the first defendant's solicitors. The bundle is somewhat jumbled but the chain of correspondence appears to commence with a letter from the plaintiff's solicitors to the first defendant's solicitors. By that stage it appeared little progress had been made in selling the property and the plaintiff was concerned about the timeframe for sale and various other matters. It concludes around February of 2019 by which stage the plaintiff had threatened to replace the first defendant as executor. Without going through the correspondence in detail, what it shows is a disconnect between the parties. The plaintiff is of the view the first defendant has not been using her best endeavours to sell the property; the first defendant maintains she had been using her best endeavours and the failure to sell was a consequence of market conditions allied with an unexpectedly poor performance from the real estate agent. The plaintiff had reached the position where he believed the appointment of someone independent to sell the property was the appropriate course. The first defendant was steadfastly opposed to that option.
In answer to the affidavit of Mr Lang, the first defendant filed an affidavit sworn 21 May 2019. In that affidavit she makes a number of points. First, she was aware of her duties as an executor to act 'reasonably, diligently, ethically, honestly and competently in managing the process of selling the property'.[1] Second, she maintained that she had been using her best endeavours to sell the property. She makes the point she had considerable experience in acquisition and sale of properties and she brought that expertise to bear in this case. She details how she readied the property for sale. She also outlines some difficulties she had with an agent she initially engaged to market the property.
[1] At [7].
The first defendant goes into some detail as to the nature of the property and the asking price for it.
Eventually an offer was received for the property. That offer was subject to finance. Regrettably the offer fell over because the finance clause could not be satisfied. By this stage it was April of 2019. The real estate market had cooled further and the first defendant felt a change of agent was appropriate. That has occurred. But as at the date of this hearing the property had not been sold.
On that basis the respective positions of the parties can be summarised as follows. The plaintiff says the first defendant was given 120 days to sell the property. That meant the parties anticipated it would be sold by mid‑July of 2018. As of March 2019 it had not been sold. The plaintiff says the very fact of the delay speaks both a lack of endeavour and a lack of competence. The first defendant maintains she has been acting in all respects in a responsible way. While attempting to obtain the best possible price for the property she has driven the marketing campaign and provided some of her own funds to maintain the property. She says in all respects she has acted reasonably and responsibly and there is no basis for appointing someone other than her to sell the property.
In these circumstances the plaintiff said it was necessary to appoint someone independent to sell the property. Essentially the plaintiff said there was a conflict between first defendant's duty as executor of the estate and her personal interest. Reference was made to the decision in Gonciarz v Bienias [2019] WASC 104.[2]
[2] Plaintiff's outline of written submissions filed 9 May 2019 [9].
Counsel for the first defendant, in his written submissions, queried the basis upon which an appointment of a third party to conduct this sale could be made. Counsel submitted there was no basis for replacing the trustee under s 77(2) of the Trustees Act 1962 (WA). However, he did acknowledge the inherent jurisdiction of a court and he was right to do so.[3] Moreover, the parties, in their consent order, seemed to have anticipated the sale of the property might be an issue. They agreed that further orders could be made in relation to the sale. Taken together ‑ that is the inherent power of the court and the parties agreement ‑ I have no doubt it is open to the court to make orders allowing for the conduct of the sale.
[3] First defendant's outline of written submissions filed 21 May 2019 [23] ‑ [26].
In all the circumstances I was satisfied the appointment of an independent third party to conduct this sale was appropriate. It is not uncommon in estate matters to find parties ‑ most often an executor and a beneficiary ‑ at odds. Nothing seems to generate ill will between individuals quite like a contested will. But more often than not, when parties settle their differences, the settlement can be effected and the parties can go their own way. They may never speak to one another again but at least their interests are separated and they can deal with personal animosities in any way they choose. But this is not one of those cases.
The settlement anticipated a fixed sum being paid to the plaintiff out of the sale of the property. It is implicit in the agreement that the plaintiff was likely to get his money in a relatively short period of time ‑ 120 days or thereabouts. For her part the executor took on the onus of selling the property within a relatively short period of time. Consistent with her obligations as an executor she was required to obtain the best price possible. But there is a balancing act ‑ the need for a good price on the one hand and a relatively quick sale on the other. Without apportioning any blame to anyone, it does seem to me the sale process has been extended beyond what is reasonable. I accept there were reasons why that occurred but the fact is it did occur and it is not consistent with the way in which the consent order was framed.
For these reasons I saw it appropriate to appoint an independent third party to conduct the sale. I made orders appropriately.
As a fall-back position, counsel for the first defendant maintained the costs of the third party in selling the property should be borne equally by the plaintiff and the estate. I am not satisfied that is the appropriate order. The plaintiff was to receive $80,000 pursuant to the settlement. The costs of the sale were always going to be borne by the estate. While I have been careful not to apportion any blame to the first defendant for the failure to sell the property, I am nonetheless satisfied that the costs associated with the third party are properly expenses of the estate. If the property had been sold the expenses would have been reduced and more money would have been available for distribution to the beneficiaries. Regrettably that has not occurred but the appointment of the independent third party is nonetheless a cost properly borne by the estate.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson
3 SEPTEMBER 2019