Zalfen v Gardner
[2016] SASC 182
•2 December 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Permission to Appeal)
ZALFEN v GARDNER & ANOR
[2016] SASC 182
Judgment of The Honourable Justice Bampton
2 December 2016
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - JUDGMENTS AND ORDERS
The parties agreed to a consent order resolving Inheritance (Family Provision) Act 1972 (SA) proceedings pertaining to the applicant’s deceased’s father’s estate – the terms of the consent order required the applicant as executor of the estate to pay the sum of $75,000 to the plaintiffs jointly – the applicant did not make payment of the provision to the plaintiffs – the plaintiffs made application seeking orders to enforce payment of the provision – the applicant filed a notice of acting in person and an application seeking to aside the consent order – a Master dismissed the application to set aside the consent order – the applicant was removed as executor and the Public Trustee appointed as executor – applicant seeks an extension of time to seek permission to appeal the Master’s dismissal of his application – whether the applicant has standing to appeal the Master’s dismissal of his application – whether an extension of time should be granted – whether the appeal has any prospects of success.
Held:
1. The applicant does not have standing to seek permission to appeal the Master’s dismissal of his application to set aside the consent order. As the proposed appeal has no merit, had the applicant sought permission to appeal before he was removed as executor permission would be refused.
2. Extension of time to seek permission to appeal the Master’s dismissal of the application to set aside the consent order refused.
3. Appeal dismissed.
Inheritance (Family Provision) Act 1972 (SA); Supreme Court Civil Rules 2006 (SA) r 242; Supreme Court Act 1935 (SA) s 50(4)(a)(i), referred to.
Harvey v Phillips & Anor (1956) 95 CLR 235; Grey v City of Marion (2006) 159 A Crim R 357; Money Tree Management Services Pty Ltd & Anor v Deputy Commissioner of Taxation (No 3) [2000] SASC 286, considered.
ZALFEN v GARDNER & ANOR
[2016] SASC 182Appeal from a Master
BAMPTON J: Mr Zalfen seeks permission to appeal a decision of a Master of this Court dismissing his application to set aside an order made by consent on 15 June 2015.
Background
Mr Zalfen’s father, Heinrich Ferdinand Zalfen (“the deceased”), made a will on 11 March 2009 appointing Mr Zalfen as sole executor and sole beneficiary of his estate. This will revoked an earlier will dated 8 January 2001 of the deceased wherein he left his estate to his three children in equal shares.
The deceased died a widower on 6 October 2012. At his death, the deceased’s living children were Mr Zalfen and Karen Ingrid Gardner. The eldest of his three children, Iris, died on 14 December 2000. Helena Hoogland is the deceased’s granddaughter by Iris.
Ms Gardner together with Ms Hoogland (“the plaintiffs”) commenced these proceedings pursuant to the provisions of the Inheritance (Family Provision) Act 1972 (SA) (“IFP Act”).
The entering into the consent order
The plaintiffs’ claim was listed for trial on 15 June 2015. The plaintiffs were represented by Mr Bill Gillies instructed by Ms Astrid MacLeod as agent for JKB Lawyers. Mr Zalfen was represented by Mr John White instructed by Mr Ray Frost of Treloar & Treloar.
Counsel took the opportunity to confer at the outset of trial. Having conferred, counsel advised the Court that the matter had resolved. Minutes of order were prepared. The consent minutes for provision out of the estate (“the order”) provided that the plaintiffs would jointly be paid a legacy of $75,000 on or before 15 September 2015. The plaintiffs and Mr Zalfen signed a copy of the minutes of order.
Mr Zalfen did not comply with the order
Mr Zalfen, as executor, did not comply with the order and make the payment of the provision to the plaintiffs.
On 18 December 2015, the plaintiffs made application[1] seeking orders to enforce payment of the provision.
[1] FDN 17.
Mr Zalfen’s application to set aside the order
On 29 January 2016, Mr Zalfen filed a notice of acting in person[2] and an application seeking to set aside the order.[3]
[2] FDN 22.
[3] FDN 23.
In his reasons delivered on 28 April 2016 following the hearing of Mr Zalfen’s application to set aside the order, the Master noted that the solicitors and counsel appearing on 15 June 2015 were all experienced in the testamentary causes jurisdiction.
The Master commented that it was apparent that, whilst Mr Zalfen was reluctant to settle the matter, he instructed his solicitors to do so and personally signed the minutes of order. The signed minutes of order are exhibited to an affidavit of Jillian Brann sworn on 16 December 2015.[4] The Master considered that Mr Zalfen regretted having agreed to settle the dispute, that the evidence tended to suggest that he simply intended to ignore the order and that it was only the filing of the plaintiffs’ application seeking enforcement of the order that led to his application (more than seven months after the order was made) seeking to set aside the order.
[4] FDN 18.
The Master noted that he had the discretion to set aside the consent order pursuant to r 242 of the Supreme Court Civil Rules 2006 (SA) (“the Rules”) which provides that the Court may set aside a judgment and reopen an action if the justice of the case so requires. His Honour stated that the discretion to set aside the consent order was only enlivened where grounds are established that “would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it”.[5]
[5] Harvey v Phillips & Anor (1956) 95 CLR 235, 243.
Mr Zalfen submitted before the Master that he was coerced into signing the order and in effect blackmailed by a bundle of photos produced by the plaintiffs.
The Master said it was clear that counsel and solicitor had made strong recommendations to Mr Zalfen as to what was in his best interests regarding the plaintiffs’ claim. The Master said that Mr Zalfen accepted that advice, even if reluctantly, and made clear to his advisors that his instructions were to compromise the matter in the form in which he did. Consistent with those instructions, Mr Zalfen signed the copy of the minutes of order. The Master concluded that there was no basis on which to set aside the order made by consent. Accordingly, the Master dismissed Mr Zalfen’s application.
The removal of Mr Zalfen as executor
By interlocutory application dated 30 May 2016,[6] the plaintiffs sought an order removing Mr Zalfen as executor and appointing the Public Trustee. In his reasons dated 29 July 2016, the Master noted that Mr Zalfen, in his capacity as executor, had made clear to the Court that he did not propose to administer the deceased’s estate in accordance with the will as varied by order made on 15 June 2015. The Master was of the opinion that Mr Zalfen was deliberately frustrating the finalisation of the estate and there was no reason to doubt that he would continue to do so. Mr Zalfen also intimated to the Master that he proposed to appeal the Master’s refusal to set aside the consent orders made on 15 June 2015.
[6] FDN 28.
The Master said that the principle issue that the Court should have regard to in determining whether to revoke a grant of probate is the due and proper administration of the deceased’s estate in the interests of the parties beneficially entitled to that estate. The Master determined that it was necessary to revoke the grant of probate and appoint a new executor to ensure the due and proper administration of the estate. Accordingly, the Master revoked the grant of probate and made a new grant of probate appointing the Public Trustee as executor.
The notice of appeal
On 23 August 2016, Mr Zalfen filed a notice of appeal,[7] some 13 weeks or 96 days out of time, seeking permission to appeal the Master’s dismissal of his application[8] seeking to set aside the order.
[7] FDN 31.
[8] FDN 23.
As Mr Zalfen has been removed as executor and is no longer a party to the proceedings brought against him in his capacity as executor he does not have standing to appeal the order. He only has standing to appeal the Master’s order removing him as executor, although the time to appeal that order has expired. It follows that the appeal should be dismissed. However, for the sake of completeness I will consider whether Mr Zalfen is entitled to an extension of time to seek permission to appeal the order. I do so bearing in mind that the time to appeal expired within 21 days after the date of the order. That is, time expired at a time when Mr Zalfen was still the executor and a party to the proceedings.
Mr Zalfen alleges that he agreed to settle the claim under duress. He implies that he was corralled into settling as a result of photographs that the plaintiffs proposed to tender depicting him with what appears to be a thriving cannabis crop. Mr Zalfen says he grows cannabis and always has for personal use and by doing so he does not have to deal with people in the illicit drug trade.
Mr Zalfen asserts he was manipulated into a position on the day of trial and threatened with the photographs out of spite.
The plaintiffs submitted they proposed tendering the photographs at trial and cross-examining Mr Zalfen regarding his assertion that he was destitute and it would be put to him that he had access to proceeds of sale of the cannabis crop. In other words, the profit he stood to gain from the sale of the cannabis was relevant to his financial position. I was informed that it was after production of these photos that the parties agreed the terms of the order.
Mr Zalfen’s reasons for the delay in filing the notice of appeal are that he says he was disadvantaged by “misrepresentation throughout the action” and his need to research “the proceedings, documents, procedures, and Rules of the Court to attempt to demonstrate that the action brought against [him] was fraudulently disposed”.
Mr Zalfen also submits he suffers an adjustment disorder. He says this condition together with the very limited sleep he had the night prior to trial did not “present ideal conditions in which to make important decisions”. Mr Zalfen suggests that he is a person under a disability as defined by the Rules.
I note that at the time Mr Zalfen entered into the order he was legally represented and no application was made by his advisors for the appointment of a litigation guardian to represent his interests. Mr Zalfen provided letters written by a social worker concerning counselling he had received in relation to his adjustment disorder and stress. Mr Zalfen says he provided these letters to his solicitor before trial. The letters do no more than indicate that Mr Zalfen suffers an adjustment disorder and stress, in the words of the social worker, “both occurring within the context of protracted legal proceedings involving his sister and niece disputing the estate of Frank’s deceased father”.
I have no doubt that this litigation and having to attend court have been fraught with stress, angst and pressure for both Mr Zalfen and the plaintiffs. Mr Zalfen is not, and was not at the time of agreeing the terms of the order, a person under a disability as defined by the Rules. He demonstrated in the hearing before me and by the documents he has filed that he is mentally able to manage his own affairs.
As Mr Zalfen seeks to appeal a consent order he must, in accordance with s 50(4)(a)(i) of the Supreme Court Act 1935 (SA), seek permission to appeal.
Mr Zalfen asserts that the determination of the matter was prejudiced by the false claims made by the plaintiffs as deposed to in their affidavits filed in support of their application. Mr Zalfen contends there are matters that he was not previously aware of that he wants to inform the Court about. I infer that these matters relate to matters Mr Zalfen considers would adversely affect, in particular, Ms Gardener’s credit. Mr Zalfen asserted Ms Gardner had been found guilty of Centrelink fraud and had lied to this Court about her financial status.
Whether an extension of time should be granted involves, in particular, a consideration of the reason for the delay, the length of the delay, the prejudice to the plaintiffs, a consideration of whether the making of the order was correct and whether the appeal has any prospects of success.[9]
[9] Money Tree Management Services Pty Ltd & Anor v Deputy Commissioner of Taxation (No 3) [2000] SASC 286; Grey v City of Marion (2006) 159 A Crim R 357.
Allowing for the fact that Mr Zalfen is now self-represented, he has not put forward any good reason for the delay.
Mr Zalfen had the benefit of legal advice at the time of entering into the order. There is nothing before me that demonstrates that Mr Zalfen was induced or coerced or that pressure was applied to enter into the order. I have no doubt there would have been the pressure inherent in the giving and consideration of legal advice in IFP Act proceedings. There is nothing to indicate that Mr Zalfen was in any way deprived of a real choice to decide to enter into the consent orders to resolve the action, the terms of which were reasonable. There is nothing to indicate the justice of this matter would enliven the Court’s discretion to consider setting aside the order had Mr Zalfen sought permission to appeal before he was removed as executor. If there were, the order removing Mr Zalfen as executor would need to be appealed or reconsidered by the Court.
Mr Zalfen has not established that the Master erred in declining to exercise his discretion to set aside the order.
I refuse Mr Zalfen an extension of time to seek permission to appeal. Accordingly, the appeal is dismissed.
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