Everett v King

A & M Short Pty Ltd v Prestige Residential Marketing Pty Limited [2005] NSWSC 872 CASES CITED: Greenwood v Papademetri [2007] NSWCA 221 Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463

Nicole Kerryn Everett (First Plaintiff) PARTIES: Liza Catherine Tinker (Second Plaintiff The Estate of the late Garry King (Defendant) Jennifer King and Peter King (Executors of the estate of the late Garry King)

COUNSEL: Mr J E Rowe (Plaintiffs) Mr W Fitzsimmons (Executors of the estate of the late Garry King)

SOLICITORS: John Carmody & Co (Plaintiffs) Owen Hodge Lawyers (Executors of the estate of the late Garry King)

The matters for determination now before me arise out of motions filed in two sets of substantive proceedings commenced by twin sisters, by way of Summons filed on 24 July 2008 nominating the defendant as "The Estate of the late Garry King". There were two motions in each matter. All four motions were heard together for convenience as they raise identical issues. I will refer to the twin sisters as the first plaintiff and the second plaintiff.

The substantive proceedings are brought by the plaintiffs seeking orders pursuant to the Limitation Act 1969 for the extension of the limitation period to enable them to commence proceedings alleging physical and sexual assaults against them by their stepfather, Garry King, between 1979 and 1991. Garry King committed suicide on 30 October 2005. The plaintiffs rely upon the provisions in s 2 of the Law Reform (Miscellaneous Provisions) Act 1944, which provides for the survival of their prospective causes of action against the estate of the deceased. The executors of the estate are Peter James King and Jennifer Jane King.

The first motion brought was filed on 1 December 2009 on behalf of the executors and seeks dismissal of the Summons in each set of proceedings. The second motion was filed on 16 December 2009 on behalf of each plaintiff and seeks leave to amend each Summons to describe the defendant as "Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King". A consequential amendment is sought to similarly amend the proposed Statement of Claim annexed to each Summons.

Probate of the Will of the late Garry King was only granted to the executors on 9 October 2009 pursuant to orders of the Supreme Court made on 25 September 2009. The executors contend that until the grant of probate the assets of the deceased were deemed vested in the NSW Trustee, and there was no legal entity such as that nominated in each Summons, namely "The Estate of the late Garry King": s 61 of the Probate and Administration Act 1898. Until the grant of probate, therefore, the correct defendant was the NSW Trustee. Alternatively, the plaintiff should have sought Letters of Administration enabling the commencement of their proceedings. The executors submit, therefore, that the proceedings commenced by the plaintiffs are null and void and should be dismissed: Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463.

The plaintiffs contend that they should be allowed simply to amend each Summons to correctly describe the defendant. They contend that the misnomer of the defendant is a procedural error that the court may cure by an order correcting the misdescription.

The executors, however, submit that those sections cannot be relied upon to retrospectively legitimise the substantive defect in the proceedings commenced by the plaintiffs against a non-existent defendant because the proceedings are and were a nullity from the outset.

In their motions, the plaintiffs make their applications under sections 64 and 65(2)(b) of the Civil Procedure Act 2005. At the hearing much of the discussion focussed on s 65(2)(b). Now that I have had the opportunity for deeper reflection, it seems to me that s 65(2)(b) has no relevance to the present dispute. S 65 applies to any proceedings commenced before the expiration of any relevant limitation period. S 65(2) then empowers the court, in any such proceedings, to order amendments to the originating process at any time after the expiration of the relevant limitation period. In other words, s 65(2) is directed at situations where the relevant limitation period expires after the filing of the originating process. In these proceedings, there has been no expiry of any limitation period after the filing of the originating process. These proceedings, commenced by Summons, seek extensions of limitation periods that had already expired. The Summons could be filed at any time.

In my view, therefore, the applicable statutory provision is s 64. That section is in the following terms:

"(1) At any stage of proceedings, the court may order:

(a) that any document in the proceedings be amended, or

(b) that leave be granted to a party to amend any document in the proceedings.

(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any error or defect in the proceedings and avoiding multiplicity of proceedings.

(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings, but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.

(4) If there has been a mistake in the name of the party, this section applies to the person intended to be made a party as if he or she were a party.

(5) This section does not apply to the amendment of a judgment, order or certificate."

It is important to note, at the outset, that the executors do not suggest any prejudice in the event that the amendments were to be allowed. Their argument is simply that the court has no power to order amendment because the proceedings are null and void, and are liable to be dismissed.

In my view, the position of the executors is flawed. This is precisely the sort of procedural defect contemplated by the section and which, for the purpose of determining the real questions raised by the proceedings and to avoid multiplicity of proceedings, should be corrected. See also sections 56, 57, 58, 59 and 60.

A consequential issue, perhaps, is the effective date of the amendment. That question remains open: see Greenwood v Papademetri [2007] NSWCA 221 at [29] - [30]. Alternatively, resolution of that issue will require a consideration as to whether the effect of the amendment is to substitute a new party, or is merely the correction of a misnomer: A & M Short Pty Ltd v Prestige Residential Marketing Pty Limited [2005] NSWSC 872 at [35]. The discussion in Greenwood v Papademetri at [79] - [80] is instructive in this regard, and suggests to me that the amendment in the present case involves the correction of a misnomer, but I am not required to determine the question in the present motions. If for some reason the question does become relevant, it can be raised and determined in the substantive proceedings, on the hearing of the Summonses.

For these reasons, the plaintiffs' motions succeed and the executors' motions should be dismissed.

Orders for costs are to be made in accordance with r 42.1 and r 42.2 of the UCPR, unless some other order or orders are appropriate. The prima facie order that is appropriate is for the executors to pay the plaintiffs' costs on the ordinary basis. There is nothing before me, at this point, to indicate that some other order is appropriate, but I will reserve leave to either party to apply in that regard.

On the plaintiffs' motions filed on 16 December 2009, I grant them leave to amend their Summonses to describe the defendants as "Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King".

I also grant leave to the plaintiffs to correspondingly amend their proposed Statements of Claim, annexed to their Summonses.

I dismiss the motions filed on 1 December 2009 filed on behalf of Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King.

I order the defendants, now described as Peter James King and Jennifer Jane King as Executors of the Estate of the Late Garry Charles King, to pay the plaintiffs' costs of the motions, being both the motions filed on 1 December 2009 and those filed on 16 December 2009.

I give leave to the parties to apply for some other costs order or orders provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought.

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