Thakurdas v Wadsworth

[2018] NZHC 1106

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001950 [2018] NZHC 1106

BETWEEN

PETER ARUN THAKURDAS

Appellant

AND

GARY DESMOND WADSWORTH AND SHARON ANNE ELIZABETH WADSWORTH

Respondents

Hearing:	8 December 2017
Appearances:	S Jefferson QC and L Kearns for the Appellant G Illingworth QC for the Respondents
Judgment:	18 May 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 18 May 2018 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel:

Simon Jefferson QC, Auckland Lynda Kearns, Barrister, Auckland Grant Illingworth QC, Auckland

THAKURDAS v WADSWORTH & ANOR [2018] NZHC 1106 [18 May 2018]

[1]    Mrs Thakurdas’ marriage was dissolved in October 2014. In January 2015, she died. Can the executors of her estate bring proceedings under s 182 of the Family Proceedings Act 1980 after her death?

[2]    On 28 July 2017, Judge Burns found that the executors could bring such a proceeding.1 Mr Thakurdas appeals.

[3]    The point is interesting and apparently without precedent, at least in this jurisdiction.

Background

[4]    After at least three years  of  separation,  the  marriage  between  Mr  and  Mrs Thakurdas was dissolved on 15 October 2014.

[5]    There is one child of the marriage, Faraaz Thakurdas, aged 22 years as at December 2017. He is a student.

[6]    After the separation, Mrs Thakurdas was living in Pakistan with Faraaz, but returned to New Zealand in approximately March 2014 to have medical treatment for cancer. She  stayed  in  the  parties’  home  at  84  Gillies  Avenue,  Epsom  where Mr Thakurdas had remained following the separation.

[7]    Mr and Mrs Thakurdas attended mediations regarding property division in August and November 2014. The executors allege that at the second mediation, agreement was reached as to the sale of the Gillies Avenue property and equal division of the net proceeds. Mr Thakurdas denies that a final agreement was reached.

[8]    The Gillies Avenue property was owned by the Peter and Saba Thakurdas Family Trust.2 The trustees of the trust were Mr and Mrs Thakurdas and a mutual

1      Wadsworth v T [2017] NZFC 5833, (2017) NZTR 27-014.

2      Although I note the house was subject to a 99-year lease to Mr and Mrs Thakurdas, on favourable terms. The lease would presumably would have been relationship property at the date of separation.

friend, Mr Trevor Attwood. The primary discretionary beneficiaries  are  Mr  and Mrs Thakurdas and Faraaz. Faraaz is the only final beneficiary.

[9]On 17 December 2014, the trust sold the Gillies Avenue property at auction for

$1.125 million, netting approximately $780,000.

[10]   On 23 January 2015, Mrs Thakurdas died. The sole beneficiary under her will is  Faraaz.  The  executors  are  Mr  Wadsworth,  a   solicitor,   and   his   wife, Sharon Wadsworth.

[11]   In February 2015, the executors asked Mr Thakurdas to confirm equal division of the net sale proceeds of Gillies Avenue. In reply, the trust’s solicitors asserted a right to the full proceeds, agreeing to hold the funds in a trust account following the threat of proceedings.

[12]   On 18 June 2015, the executors filed this s 182 application. (Proceedings under the Property (Relationships) Act 1976 had been filed back on 3 December 2014.)

[13]After requests from the executors, the trust made a capital distribution of

$10,000 each to Faraaz and Mr Thakurdas in July 2015. On 10 March 2016, the trust made a further capital distribution  of  $16,000  to  Faraaz  and  probably  also  to  Mr Thakurdas. The executors say that since April 2016, the trust has refused to make any further capital distributions to Faraaz. Mr Thakurdas says Faraaz has received

$46,000 in total.

[14]   On 18 August 2015, Mr Thakurdas filed an appearance under protest as to jurisdiction in this proceeding.

The Family Court judgment and the issues on appeal

Common ground

[15]Judge Burns recorded that the following matters are common ground:3

(a)The s 182 application was filed within a reasonable time after making of the orders dissolving the marriage.

(b)The trust was a nuptial settlement, and that element of the jurisdiction is established.

(c)At the time of settlement of the trust, the parties’ expectation would have been that they shared equally in the family home and they treated it as if it was the family home in terms of the Property (Relationships) Act.

(d)At the point of dissolution of marriage, it is likely that Mrs Thakurdas would have expected that she continued to share (at least a half interest) in the family home or the proceeds thereof.

[16]On the appeal, no issue was taken with these points of common ground.

Findings not under appeal

[17]   The Judge considered as a preliminary point whether the right to apply under s 182 is a “cause of action”. If it were, then by virtue of s 3 of the Law Reform Act 1936, it would survive for the benefit of the estate of Mrs Thakurdas. In that event, the executors would be entitled to bring the claim without further argument. The Judge concluded, with significant supporting authority, that s 182 is not a cause of action for the purposes of the Law Reform Act.4 I agree. A “cause of action” describes a factual situation, the proof of which entitles a claimant to a remedy,5 whereas a claim under s 182 does not provide entitlement to relief as it involves the exercise of a discretion. Mr Illingworth QC, for the executors, no longer argues the point, so no appeal is mounted on that ground. The case therefore remains to be considered, not on the basis

3      Wadsworth v T [2017] NZFC 5833, (2017) NZTR 27-014 at [25].

4      At [26]-[27]. Colloquially it would often be described as such.

5      See Letang v Cooper [1965] 1 QB 232 (CA) at 242-243.

of whether the executors are entitled to maintain a cause of action that had already accrued to the deceased, but rather whether they have standing in their own right to apply for discretionary relief.

[18]   Judge Burns next held that there is no general principle of law that a right to apply for discretionary relief abates on death, a principle which arguably applied in English divorce cases before 1988.6 Again, this is not a point on appeal. Mr Jefferson QC, for Mr Thakurdas, accepts there is no such general principle. I will return to this point in discussing the English decision of D’Este v D’Este, on which Mr Jefferson still relies.7

Finding under appeal

[19]   The Judge’s key finding (slightly reworded as there seems to be a typographical error in the judgment), is that an application under s 182 can be brought by the representatives of a deceased party.8

[20]It is this last finding that is under appeal.

[21]   I note that earlier in the judgment,9 the Judge seems to limit the right to apply under s 182, after death, to a situation where a child of the marriage continues to live. That would not be a valid point of distinction. An application by executors would be (inter alia) for the benefit of beneficiaries under the will (or intestacy). A child could be alive, but not a beneficiary. Even where a child is the sole beneficiary, they may not be the only one to benefit, as there may be creditors.

Disputed findings of fact

[22]   There are two statements of fact in the judgment with which Mr Jefferson took issue.

6      See Barder v Caluori [1988] AC 20, [1987] 2 WLR 1350 (HL).

7      D’Este v D’Este [1973] Fam 55 (Fam).

8      Wadsworth v T [2017] NZFC 5833, (2017) NZTR 27-014 at [45].

9 At [41].

[23]   First, the Judge said that Faraaz was supportive of the s 182 application by his mother’s estate.10 In fact, no affidavit evidence has been filed by Faraaz. There is no direct evidence as to whether Faraaz supports the application. Mr Jefferson said that, given the Judge drew attention to this point on two separate occasions, he plainly regarded it as significant. He says that the Judge by implication took into account “an irrelevant consideration”, albeit that the extent to which it influenced the outcome (if at all) is unclear.

[24]   Mr Jefferson’s second point is that the Judge deduced an intention on the part of Mrs Thakurdas to bring the s 182 application.11 Mr Jefferson says the sole evidence of such an intention came from Mr Wadsworth. Again, Mr Jefferson says that, to the extent this matter was taken into account, the Judge took into account “an irrelevant consideration”.

[25]   Mr Illingworth says the Judge was entitled to infer that the executors would not be bringing the s 182 application without the support of Faraaz, as he is the sole beneficiary under the will and would be the only person to benefit from the application.

[26]   As to the second point, Mr Illingworth says there was in fact evidence before the Court that Mrs Thakurdas intended to make an application under s 182. In her narrative affidavit dated 3 December 2014 (filed in support of her relationship property proceeding), she said:

I had been exploring with my counsel ways of addressing trust issues, in particular receipt of what I consider to be my share of the capital of the trust fund (so that I in turn can preserve that for Faraaz), for instance under this Act, the Trustee Act, or s 182 Family Proceedings Act. … Hopefully none of that will be required now in light of progress made at the last mediation session.

[27]   On a full reading of the judgment, the actual findings do not appear to be ultimately influenced by either whether Faraaz supports the application, or by whether Mrs Thakurdas intended to bring it herself.

10     At [12] and [41].

11 At [22].

[28]   I also do not consider either point is relevant for present purposes. The case involves a question of law. The factual detail, while relevant to create a context and to test the conclusion, is not material. These points would be relevant to the Court’s discretion under s 182 if the case proceeds.

[29]   For the sake of thoroughness, I agree with Mr Jefferson that the Court cannot assume Faraaz supports the application. It does appear (on the second point), that Mrs Thakurdas did intend to pursue an application under s 182, had she considered that necessary.

Approach on appeal

[30]   There is no dispute but that on a question of law, an appellate court is free to form its own view.

Analysis

[31]Section 182(1) does not say on the face of it who may bring an application.

[32]The section provides as follows:

182     Court may make orders as to settled property, etc

(1)On, or within a reasonable time after, the making of an order under Part 4 of this Act or a final decree under Part 2 or Part 4 of the Matrimonial Proceedings Act 1963, the Family Court may inquire into the existence of any agreement between the parties to the marriage or civil union for the payment of maintenance or relating to the property of the parties or either of them, or any ante-nuptial or post-nuptial settlement made on the parties, and may make such orders with reference to the application of the whole or any part of any property settled or the variation of the terms of any such agreement or settlement, either for the benefit of the children of the marriage or civil union or of the parties to the marriage or civil union or either of them, as the court thinks fit.

(2)Where an order under Part 4 of this Act, or a final decree under Part 2 or Part 4 of the Matrimonial Proceedings Act 1963, has been made and the parties have entered into an agreement for the payment of maintenance, the Family Court may at any time, on the application of either party or of the personal representative of the party liable for the

payments under the agreement, cancel or vary the agreement or remit any arrears due under the agreement.

(3)In the exercise of its discretion under this section, the court may take into account the circumstances of the parties and any change in those circumstances since the date of the agreement or settlement and any other matters which the court considers relevant.

(4)The court may exercise the powers conferred by this section, notwithstanding that there are no children of the marriage or civil union.

(5)An order made under this section may from time to time be reviewed by the court on the application of either party to the marriage or civil union or of either party’s personal representative.

(6)Notwithstanding subsections (1) to (5), the court shall not exercise its powers under this section so as to defeat or vary any agreement, entered into under Part 6 of the Property (Relationships) Act 1976, between the parties to the marriage or civil union unless it is of the opinion that the interests of any child of the marriage or civil union so require.

Purpose of s 182

[33]In construing a statutory provision, it is important to consider its purpose.

[34]The purpose of s 182 was addressed by the Supreme Court in Clayton v Clayton

as follows: 12

Ultimately it is the task of the Judge faced with an application under s 182 to exercise the discretion in accordance with the terms of s 182 and in light of its purpose, taking into account all relevant circumstances in the particular case. Nuptial settlements are premised on the continuation of the marriage or civil union. The purpose of s 182 is to empower the Courts to review a settlement and make orders to remedy the consequences of the failure of the premise on which the settlement was made. Each case will require individual consideration.

[35]And to very similar effect:13

In Ward, this Court made the following comments as to the premise underlying s 182 and the courts’ role. It said that both ante and post-nuptial settlements are premised on a continuing marriage. If that premise ceases to apply,  Parliament recognised that injustices could arise. Section 182 empowers the courts to review the settlement and make orders to remedy the consequences of the failure of the premise on which the settlement was made – that is,

12     Clayton v Clayton [2016] NZSC 30, [2016] 1 NZLR 590 at [60].

13 At [44].

continuation of the marriage. One of the purposes of s 182 is to prevent one party benefitting unfairly from the settlement at the expense of the other in the changed circumstances.

[36]   Of particular relevance in the present case is the following passage, or at least the concluding part of it:14

To freeze the position at the time of the settlement does not accord with the statutory language, which directs that the court may take into account the circumstances of the parties and any change in the circumstances of the parties since the date of the settlement. The language of s 182(3) makes it clear that any change in circumstances since the settlement is generally relevant to the exercise of the discretion.

This makes sense in policy terms. For example, if one of the parties had become ill in the course of the marriage, the s 182 discretion could well be exercised differently than it would have been had both parties remained in perfect health. Further, the parties may not have had children at the time of settlement. The section makes it very clear, however, that a provision directly from the settlement, or any variation of it, can be for the benefit of the children of the marriage. Indeed, children are mentioned in s 182(1) before the parties and the restriction in s 182(6) does not apply if the interests of the children so require. This suggests that the interests of the children (and particularly dependent children) are a primary consideration under the section.

(Emphasis added and footnotes omitted)

[37]   Mr Illingworth referred also to those parts of the judgment in Clayton where the Supreme Court agreed with the analysis of the Court of Appeal in Ward v Ward15 that there “should be a generous approach to the interpretation of the word ‘settlement’”.16 He was presumably suggesting that a similarly generous approach should be adopted to interpretation for the present purposes, although he did not specifically say so. This is a different point. The Supreme Court’s “generous approach” to “the settlement” is not of particular relevance here. I accept though that the courts have not taken a restrictive approach to the interpretation of s 182 over recent years.

[38]   I proceed on the basis that the purpose of s 182, inter alia, is to remedy the consequences of the failure or alleged failure of the premise on which the settlement was made; to have the interests of children (particularly dependent children) as a

14     At [55]-[56].

15     Ward v Ward [2009] NZCA 139, [2009] 3 NZLR 336 at [27].

16     Clayton v Clayton [2016] NZSC 30, [2016] 1 NZLR 590 at [34].

primary consideration and to prevent unfairness that would otherwise arise from a settlement following on from a dissolution.

The language of s 182

[39]   It is significant that s 182(1) is silent as to who may bring an application.17 Rather, it focuses on the Family Court’s entitlement to inquire into the existence of any agreement or settlement. The Court can then make orders either for the benefit of the children, or of the parties to the marriage, or both. Subsection (1) is in fact quite curiously drafted, almost as if (as Mr Illingworth says) to specifically avoid reference to who can bring an application, especially bearing in mind that s 182(2) and s 182(5) expressly say who can bring applications in those more limited circumstances.

[40]   Section 182(2) is of limited scope and relevance, but it does provide for an application by either party (which I read throughout the section as a party to the former marriage) or of their personal representative.

[41]   Under s 182(5), an order that has been made under s 182 may be reviewed on the application of either party to the marriage, or of either party’s personal representative. Mr Jefferson says that subsection (5), making specific provision for personal representatives in limited circumstances, is a clear indication that there was no intention that a personal representative could bring a claim under the substantive provision following the death of a spouse.

[42]   The difficulty with that submission is that s 182(1) is the primary part of the section and is openly worded, not putting any limit who can apply. Subsection (5) could therefore equally be read as indicating that the first-instance applicants should at least include the parties and either party’s personal representative. Arguably, the Court could instigate the inquiry itself.

[43]   Given the ability of an executor to review an order under s 182(5), the death of a spouse is clearly relevant, at least under that subsection. Section 182(3), which talks of the relevant factors, including any change in circumstances, expressly applies to all

17     The Judge found there was no relevant rule either.

applications under s 182. The death of a spouse is clearly therefore a “change in the circumstances of the parties” or one of the “other matters” under s 182(3). I do not see why a factor would be relevant under s 182(3) for a revision in terms of s 182(5), but not for an original application. As the Supreme Court said, the language of s 182(3) makes it clear that any change in circumstances since the settlement is generally relevant.18

[44]   Considering the purpose and language of the section, I can see no good reason for putting a limited construction on s 182(1). One of the purposes of the section, as the Supreme Court said, is to prevent unfairness between parties to a marriage following its dissolution. The fulfilment of that purpose is not made any the less necessary or desirable by the death of one of the parties.

Analogy with Property (Relationships) Amendment Act 2002

[45]   Mr Jefferson argues that the amendment to the Property (Relationships) Act 1976 to allow personal representatives to bring a claim, without corresponding amendment to the Family Proceedings Act, shows that the legislature did not intend for an application to be made by executors under s 182(1).

[46]   Judge Burns reasoned that s 182 was not amended at the same time because Parliament must have considered the section already included a right for executors to bring proceedings.

[47]   I do not agree with either position. In the absence of any reference to the point in Hansard or other reports, the only conclusion that can be drawn is that Parliament did not turn its mind to s 182 when enacting the Property (Relationships) Act Amendment. That is consistent with the fact that the Property (Relationships) Act Amendment also extended that Act to de facto couples, but there was no corresponding extension to s 182.

18     Mr Jefferson argues that the only change in circumstances that is relevant is the dissolution, not death or any other circumstance. That is clearly wrong.

[48]   Care needs to be taken with drawing any analogy with the Property (Relationships) Act. As the Supreme Court has said, the two pieces of legislation have different purposes.19

The English position

[49]   In arguing that the court has no jurisdiction, after the death of one of the parties, to grant relief under s 182, Mr Jefferson relies heavily on the judgment in D’Este, a case under s 17 of the Matrimonial Causes Act 1965, the United Kingdom equivalent of s 182.

[50]   To set the scene for D’Este, it is necessary to refer back to Maconochie v Maconochie,20 where Shearman J made statements to the effect that when a party to a matrimonial suit died, the result was that the suit abated, came to an end and was “dead and done with”, a sadly apposite phrase.

[51]Similarly, Ormrod J said in D’Este:21

In my judgment, the real answer to this application is this, that the whole of the matrimonial causes legislation, right back to 1857, is essentially a personal jurisdiction arising between parties to the marriage or the children of the marriage. … The fact that these applications abate by death derives, in my judgment, from the legislation which created the rights, if they are rightly called “rights” and from no other source. …

[52]   Nine years later in Purse v Purse,22 Ormrod L.J. (by then sitting in the Court of Appeal) and Dunn L.J., both said that Shearman J’s dictum in Maconochie was too wide. Ormrod L.J. in particular said:23

In my judgment, Shearman J’s dictum goes too far. To say that the court has no jurisdiction in a divorce suit after the death of one of the parties to the marriage because the suit has been abated by the death, is to confuse cause and effect. The death may, for various reasons, deprive the court of jurisdiction; the effect may then be described, loosely, as abatement of the suit. In each case, therefore, it is necessary to consider whether the death has deprived the court of jurisdiction to grant the relief claimed.

19     Clayton v Clayton [2016] NZSC 30, [2016] 1 NZLR 590 at [63].

20     Maconochie v Maconochie [1916] P 326 (Prob) at 328.

21     D’Este v D’Este [1973] Fam 55 (Fam) at [59].

22     Purse v Purse [1981] Fam 143 (CA).

23     At 155.

[53]   Then in Barder v Caluori,24 Lord Brandon of Oakblock put the matter beyond doubt. He said there was no general rule that, where one of the parties to a divorce suit has died, the suit abates so that no further proceedings can be taken in it.25 He said whether further proceedings could or could not be taken depended on the nature of the further proceedings sought to be taken and the true construction of the relevant statutory provision or provisions.26

[54]   Mr Jefferson does not take issue with Barder, but he says D’Este remains good law. He says it is very persuasive, albeit not binding, authority.

[55]   D’Este is certainly on point. The husband and his first wife were divorced. A house had been purchased in their joint names during the marriage. The conveyance of the house into joint names was seen as a “post-nuptial” settlement in terms of s 17 of the Matrimonial Causes Act 1965, the United Kingdom equivalent of s 182. The husband brought an application to vary that settlement. After bringing the application, but before the matter came to a hearing, the husband died. The husband’s second wife was appointed as his personal representative and sought to continue the application. The first wife argued successfully that, the husband having died, the application could not proceed. Ormrod J said there was no jurisdiction to entertain it. The statute contemplated both parties to the marriage surviving.

[56]   Judge Burns held that D’Este could be distinguished from the present case because the applicable United Kingdom statute expressly provided that the right to bring proceedings expired on death. The Judge also considered that D’Este was effectively overturned by Lord Brandon in Barder. Finally, he said D’Este was persuasive only and not binding on him.

[57] I accept, as Mr Jefferson submits, that s 182 is in material respects a mirror of s 17 in the United Kingdom legislation, although there is no United Kingdom equivalent of s 182(5) and (6).

24     Barder v Caluori [1988] AC 20 (HL).

25     At 37.

26     At 37.

[58]   I can see no express provision in the United Kingdom statute that the right to bring proceedings expired on death. If it were there, Ormond J would have referred to and relied on it in D’Este, and he did not. Mr Illingworth did not point to such a provision.

[59]   I also do not agree with Judge Burns that D’Este was effectively overturned in Barder. It was one of a large number of cases reviewed in Barder, but the House of Lords did not comment as to whether the conclusion in D’Este was correct or incorrect. The Court did not need to, as Barder and D’Este were dealing with quite different statutory provisions.

[60]   It is clear however that the conclusion in D’Este is to a material extent driven by Ormond J’s first ground, that “the whole of the matrimonial causes legislation, right back to 1857, is essentially a personal jurisdiction” and “applications abate by death

… from the legislation”.27   Such a presumption has been put to one side, including by

Ormrod L.J. himself, a few years after D’Este, in Purse, but particularly by the House of Lords in Barder. To that extent, D’Este would at least be questionable in terms of English authority.

[61]   Also, the language of s 182 is different to the United Kingdom legislation, at least in that s 182(5) specifically provides for executors to bring applications for review.

[62]   Further, the purpose and application of s 182 in this jurisdiction is materially different from the purpose of the United Kingdom statutory provision, at least as at the time of D’Este, now 46 years ago.28 This point is well illustrated in D’Este where Ormrod J secondly relied on Thomson v Thomson.29 He cited Sir Francis Jeune P’s reference to the object of the section30 being to enable the Court to divert money to which a wife proved guilty of adultery is entitled under settlement, and to apply it for the benefit of her husband and children. He then quotes Sir Francis Jeune P as saying

27     I note that the Judge does later briefly refer to the specific provisions.

28 For a full review of the history of s 182 and its application, see Ward v Ward [2009] NZCA 139, 2009 3 NZLR 336 at [6]-[15] and Nicola Peart, Relationship Property & Trusts Unfulfilled Expectations (NZLS & CLE Seminar) August 2010.

29     Thomson v Thomson [1896] P 263 (CA).

30 The claim was under s 17(2).

he nonetheless had considerable doubt how the question should be decided, but that the clear purpose of the enactment was “to limit the power of varying settlements within narrow boundaries specially defended and the words therefore may well be confined within their narrowest significance”. That is not the approach to s 182. It is clearly preferable to rely on New Zealand case law in this regard.

[63]   I also do not agree with what seems to be another key reason for Ormond J’s judgment, which was that the particular competing claims were difficult. That might be a reason to refuse to exercise the discretion under s 182, but not to decline jurisdiction to hear an application by an executor, unless irreconcilable claims were seen as inevitable in every case.

[64]   Finally, as Judge Burns said, the D’Este judgment is persuasive only and not binding.

[65]For all of these reasons, I decline to follow D’Este.

For the benefit of children or of the parties to the marriage

[66]These are the real limiting words of s 182.

[67]   The sole beneficiary of the estate is the son, Faraaz. The interests of children (particularly dependent children), are a primary consideration under the section.

[68]   It is clear and undisputed that, following a dissolution, a spouse can bring a   s 182 claim for the benefit of a child (whether dependent or not). It makes little sense, nor is it consistent with justice, for the spouse’s personal representatives not to be able to do the same, or for that matter not to be able to continue a claim that may have already been brought by the spouse, especially where children are the sole beneficiaries.

[69]   I note the possibility of a s 182 claim being brought by the child. Mr Jefferson submitted that it was not contended by the executors that children of the marriage could bring an application under s 182. Mr Illingworth did not appear to dispute that. The point was therefore not argued. However, I agree with Ormrod J when he

observed in D’Este that children of the parties (who are specifically named in the relevant provisions), have a right to apply for variation of a settlement because they are personally one of the parties who is interested.31 Faraaz clearly has a genuine interest in this matter.

[70]   However, assuming such an application could be brought, it is not reasonable following the death of a parent that a child’s interests be capable of protection only at their own instigation (or, if still a minor, of their guardian ad litem). That is not consistent with the legislation and seems wrong in principle. It would be more than damaging of the ongoing parent/child relationship, even if already affected by the marriage break-up. There would also be funding issues. In a suitable case, executors should be able to bring the claim.

[71]   The matter will of course be complicated, depending on the provisions of the will, but of the circumstances where a s 182 claim might be brought post-death, the current situation of a divorced spouse leaving their estate to their children would be the most likely. In those circumstances, the interests of the child and the interests of the executors will generally be very similar, although not identical. The executors’ role is to administer the estate, which includes satisfying the claims of creditors.

Alternatives

[72]   The alternative remedies that Mr Jefferson raises are more theoretical than real. He says in particular that Faraaz has remedies by virtue of being a discretionary beneficiary of the trust. Being a discretionary beneficiary provides Faraaz with a right, but it is very far from providing a “remedy”. Also, not every settlement under s 182 involves a trust. The answer to the question raised here should be the same regardless of the form of the settlement.

[73]   Another alternative, as mentioned, could be for Faraaz to bring a s 182 application himself, but again I do not consider that to be a particularly viable alternative.

31     At 61. When Ormond J went on to say that “it is only the party who can apply”, I take him as referring in that context to the parties to the marriage and the children.

[74]   A further alternative is that Faraaz will benefit from the Property (Relationships) Act proceeding. Part recovery from a trust under the Property (Relationships) Act is still very difficult.

Other factors

[75]   Mr Jefferson says the floodgates will be raised by a decision in favour of the executors. The fact the issue has not been raised until now suggests otherwise.

[76]   In similar vein, I note the difficulties raised by Ormrod J in D’Este for a court dealing with a first-instance application under s 182 between executors and a surviving spouse, these difficulties being particularly acute in D’Este. But allowing the executors to file proceedings and be heard, unlike under the Property (Relationships) Act, produces no presumed property pool. To the contrary, the trial Judge has a discretion, and it may be, particularly if children do not stand to benefit, or if the provisions of a will are entirely in favour of third parties, that an application by executors fails. However, that should not be a reason for a general rule declining standing to executors of a deceased spouse. The cases will be few where a spouse dies and proceedings are still in reasonable time. Each application, as with any application under s 182, should be able to be considered on its own merits.

Summary

[77]   Section 182, read as a whole, is broad enough for s 182(1) to encompass an application by the executors of a spouse.

[78]   Ward and Clayton were not directed at a situation where a party had died, but the broader statements made by the Supreme Court as to the purpose of s 182 are consistent with an executor being able to claim.

[79]   Whether a claim by an executor succeeds is entirely a matter of fact and discretion, but it should not be blocked at the starting post. In a number of cases such a claim would present real difficulties and may well not succeed. In cases such as the present, where the executors can argue that the application is for the son’s benefit (and

for the mother’s if found to be her wish), it would be unjust for the claim not to be able to be brought. While the son could bring the proceeding in his own name, that is undesirable for obvious reasons.

[80]   There are no realistic alternatives in terms of relief at equity or under the trust deed. There may be a number of alternatives in terms of the relationship property proceedings, but an application under s 182 is more direct and on point.

[81]   The English case of D’Este is clearly relevant, but for a number of reasons is not to be followed.

Result

[82]   For the above reasons, I therefore conclude that the personal representatives of a deceased estate have standing to bring an application under s 182.

[83]   The appeal is dismissed. The executors of the estate of Mrs Thakurdas may bring proceedings under s 182 of the Act.

[84]The respondents are entitled to costs for a standard appeal on a band B basis.

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Hinton J