Re Slater [2020] VSC 525 (21 August 2020)

2 On 26 November 2013, probate of the deceased's will dated 25 July 2006 was granted to the plaintiff. Pursuant to his will, the deceased devised and bequeathed his residuary estate to his sons.

3 From 2013 onwards, the plaintiff has had notice of claims made by Geoffrey and Peter. Some of the claims are made against the plaintiff as trustee of the estate, alleging negligence by him as executor, and some are made against the plaintiff's solicitors. Between June 2018 and April 2019, Geoffrey alleged, inter alia, that he and Peter suffered loss by reason of the plaintiff's administration of the estate, specifically, because of delay in effecting transfers in specie of estate shares to them pursuant to terms of settlement dated 12 November 2013 ('the loss claims').

4 While Geoffrey and Peter have alleged claims of negligence against the plaintiff, they have not pursued claims against the estate.

5 The administration of the estate has not been finalised. There remains an amount of $165,847 to be distributed to the beneficiaries of the estate. These funds are currently held by the plaintiff's solicitors in a controlled monies account.

6 By originating motion filed 11 December 2019, the plaintiff seeks orders pursuant to s 30 of the Administration and Probate Act 1958 ('the Act') that any claims of Geoffrey and Peter against the estate of the deceased, including but not limited to the loss claims ('any claims'), be barred for all purposes and the plaintiff be authorised to distribute the estate without regard to any claims, as that phrase is defined.

7 By orders made 7 February 2020, the plaintiff was required to send by email copies of the relevant documents as listed in the orders to Geoffrey and Peter and for them to apply to be added as defendants to the proceeding by summons filed by 28 February 2020. Subsequently, this time was extended to 9 April 2020. Geoffrey and Peter did not file a summons seeking to be added as defendants to the proceeding.

8 Geoffrey and Peter sought and obtained multiple adjournments of the proceeding, as non-parties. On 19 June 2020, the Court listed the proceeding for hearing on 14 July 2020 as a special fixture.

9 Geoffrey and Peter contend they have not been served with the plaintiff's notice pursuant to s 30(1) of the Act. As orders under s 30(3) of the Act may only be made after service of the notice and after expiration of the period of three months from the date of receiving the notice, the orders sought by the plaintiff barring all claims of Geoffrey and Peter against the estate should not be made by the Court. They seek that the proceeding be dismissed with costs.

10 After the death of the deceased, the plaintiff and Peter obtained a limited grant ad colligenda bona on 5 January 2012 for the purposes of selling the deceased's property in Murrumbeena. Subsequently, there was a dispute concerning the expenditure on the preparation of the property for sale. Geoffrey and Peter issued a proceeding against the plaintiff in his personal capacity and against the plaintiff and Peter in their capacities as limited administrators, claiming that the estate was held on a constructive trust arising from a promise made by the deceased that he would leave the whole of his estate to them in return for them relinquishing their shares in their mother's estate in favour of the deceased.[1]

11 On 12 November 2013, all outstanding disputes, including the constructive trust proceeding, were settled at mediation. Terms of settlement were executed and were subject to and conditional on approval of the Court and a grant of probate being made to the plaintiff. The terms contained wide releases, provided that all costs orders, including reserved costs, in the limited grant proceeding and the constructive trust proceeding were vacated and otherwise there be no order as to the costs of those proceedings. On or about 15 November 2013, the terms of settlement were approved by the Court.

12 From 2013 onwards, Geoffrey and Peter asserted several claims against the plaintiff as trustee of the estate and against the plaintiff's solicitors, alleging negligence by him as executor.

13 In late March or early April 2018, the plaintiff received a without prejudice communication from Geoffrey asserting an alleged breach of the terms of settlement by the plaintiff and of delay and neglect by the plaintiff's solicitors. Geoffrey sought compensation for himself and Peter, alleging losses arising from the timing of transfers in specie of estate shares and sought payment for loss and damage alleged to be attributable to his own time and legal expenses.

14 On 5 June 2018, the plaintiff's solicitors emailed solicitors, Lloyd & Lloyd, to inform them that they had instructions to respond to Geoffrey's communication. Before doing so, they requested confirmation from the firm that it still acted for Peter, as well as Geoffrey, and that all correspondence from the plaintiff's solicitors had been passed on to Geoffrey and Peter. On 5 June 2018, Lloyd & Lloyd requested a copy of Geoffrey's correspondence and stated that the firm would seek instructions. The plaintiff's solicitors sent follow up emails to Lloyd & Lloyd on 7 and 25 June 2018 and 3 July 2018 but no response came from Lloyd & Lloyd.

15 On 30 July 2018, the plaintiff's solicitors received a response from Geoffrey by email, using his 'paypc' email address, copied to Peter, using his 'exemail' email address. In his email, Geoffrey stated:

I am looking after the interests of my brother peter and myself. Lloyd and Lloyd are no longer engaged by either of us and have no (sic) I been for some time. ... The cause of the present dispute is breach of the deed by your client failing to transfer shares in the stipulated time. It is not the faulty(sic) of Richard per se nor of the other beneficiaries. Rather, the fault is squarely the negligence of your firm and breach of its implied warranties to Richard. The loss should be paid by your firm or its insurers ...

16 After the retainer of Lloyd & Lloyd ceased, Geoffrey, a former barrister who had purported to be a member of the Victorian Bar, corresponded with the plaintiff's solicitors on behalf of himself and Peter.

17 Between June 2018 and April 2019, in correspondence with the plaintiff's solicitors, Geoffrey alleged, inter alia, that:

(a) he and Peter suffered loss by reason of the plaintiff's administration of the estate. Specifically, Geoffrey claimed that he and Peter suffered loss because of an alleged breach of clause 9 of the terms of settlement which stated that 'if an option (to take an in specie transfer of shares) is exercised the transfer will be effectuated within 5 business days' ('the share transfer delay loss claim');

(b) in consequence of the alleged breach of clause 9 of the terms of settlement, the releases are nugatory and of no effect such that he is entitled to payment of his legal fees for appearing as counsel for the plaintiffs before Bell J on 5 January 2012 and obtaining the temporary grant orders. Orders made on that day by Bell J included that 'the costs of and incidental to this denied application shall be paid or retained out of the estate of the deceased'('counsel's fees claim'); and

(c) as a consequence of the plaintiff's failure, neglect or omission to compensate Geoffrey and Peter for the share transfer delay loss claim and pay Geoffrey his claimed counsel's fees, the plaintiff ought to be removed as executor ('the removal of executor claim').

18 By letter dated 22 August 2018 to Geoffrey, the plaintiff's solicitors responded to all of the claims raised by Geoffrey in detail. They reiterated that the allegations had no foundation and were frustrating the plaintiff's wish to finalise the administration of the estate.

19 By email on the same day, Geoffrey responded to the letter from the plaintiff's solicitors and copied in Peter using Peter's 'paypc' email address.

20 On 5 September 2018, the plaintiff's solicitors again wrote to Geoffrey and copied in Peter using his 'paypc' email address. Geoffrey responded by return email on the same day, copying Peter using his 'paypc' email address.

21 Although Geoffrey agitated the claims in correspondence during this period, neither he nor Peter have pursued them. The limitation period in respect of such claims expired in or about November 2019. The plaintiff has always denied the claims and continues to deny them. The plaintiff considers that the claims have no realistic prospect of success.

Notice pursuant to s 30 of the Act

22 By letter dated 18 March 2019 to Geoffrey, the plaintiff's solicitor noted the assertions of claims against the estate made by Geoffrey in his letter dated 5 September 2018, and informed Geoffrey that to the extent that any claim can be discerned, it was rejected. The letter stated that the estate had been ready to distribute for over 12 months and enclosed a notice to Geoffrey, pursuant to s 30 of the Act, sent to Geoffrey's 'paypc' email address and to Peter sent to his 'paypc' email address.

23 The notice required Geoffrey and Peter to take all proceedings proper to enforce or establish any claims against the estate within three months of the receipt of the notice. The letter also stated:

This Notice is being sent to you by email, consistent with our communications by email, since Lloyd and Lloyd Solicitors ceased to act for you. Should you require communications to residential addresses, kindly provide details.

24 On the same day, by return email, Geoffrey responded by repeating a claim of negligence. Geoffrey accepts that he received the letter and notice from the plaintiff's solicitors and that he replied to the solicitor's email the same day.

25 Geoffrey's reply was the subject of a further email exchange between the plaintiff's solicitors and him on 9 April 2019, again coping Peter's 'paypc' email address.

26 Since 9 April 2019, and up to the date of the plaintiff's affidavit affirmed 10 December 2019, Geoffrey had not communicated with the plaintiff's solicitors.

27 As at 11 December 2019, Peter had not responded to the notice.

28 Neither Geoffrey or Peter commenced any proceeding to enforce or establish any claims against the estate within three months of receipt of the notice, or at all.

29 The plaintiff's application is supported by the plaintiff's affidavits affirmed 10 December 2019 and 6 February 2020 and the affidavits of the plaintiff's solicitor sworn 27 and 28 April 2020.

30 In his first affidavit, the plaintiff set out details of how communications took place between his solicitors and Geoffrey and Peter in the years prior to the issue of the proceeding.

31 He deposed that Geoffrey has never provided a residential address to him or his solicitors. The plaintiff's solicitors searched the internet and found that at australianlawyersdirectory.com.au Geoffrey is described as a Victorian barrister who practices at 205 William Street, Melbourne. A search of the Victorian Bar website did not show Geoffrey as a member of the Victorian Bar.

32 Over the last two years the only contact that the plaintiff and his solicitors have had for Geoffrey has been by email at his 'paypc' email address. On many occasions Geoffrey has responded to emails at that address and the most recent communication was his response on 9 April 2019 to an email from the plaintiff's solicitor of the same date.

33 In respect of Peter, the plaintiff deposed that during 2018 and 2019 Peter has been sent emails at his 'paypc' email address. The plaintiff deposed that he is not aware of Peter's current address. He believes that Peter did reside in Canberra but does not know if that is still the case.

34 The first return date for the proceeding was on 7 February 2020. Orders were made for the plaintiff to file submissions by 14 February 2020, the plaintiff to send by email copies of the relevant documents as listed in the orders to Geoffrey and Peter at the email addresses referred to under 'Other Matters' by 17 February 2020, Geoffrey and Peter to apply to be added as defendants to the proceeding by summons filed by 28 February 2020 and the proceeding be adjourned to 6 March 2020.

35 Under the aforementioned 'Other Matters' the following matters were set out:

(a) the plaintiff does not know the residential address of Geoffrey and that in relation to a purported professional address of 205 William Street, Melbourne, being the location of the Victorian Bar and Owen Dixon Chambers East, Geoffrey does not appear on a search of the website of the Victorian Bar as one of its members;

(b) the only contact that the plaintiff and his lawyers have had with Geoffrey has been by email at his 'paypc' email address;

(c) the plaintiff is not aware of the current residential address of Peter but during 2018 and 2019 he has sent emails to him at his 'paypc' email address; and

(d) the plaintiff's correction to a Victorian professional telephone number of Geoffrey and a substitution of the correct number.

36 On 13 February 2020, the plaintiff's solicitors emailed copies of the relevant documents to Geoffrey and Peter at their respective email addresses in accordance with the orders made 7 February 2020.

37 The procedural history of this proceeding thereafter has been punctuated by multiple adjournments sought by Geoffrey and Peter.

38 By email dated 14 February 2020, Geoffrey, using his 'paypc' email address, informed the Court, inter alia, that he became aware of the proceeding a few moments ago. He said 'my brother Peter and I request the orders be extended for 6 weeks ...'.

39 By orders made 3 March 2020, the Court extended the time for compliance with the order for Geoffrey and Peter to apply to be added as defendants to the proceeding to 4pm on 9 April 2020 and adjourned the proceeding to 1 May 2020.

40 Geoffrey and Peter did not file a summons seeking to be added as defendants to the proceeding by 4pm on 9 April 2020.

41 On 23 April 2020, the Court informed the plaintiff's solicitors of its requirements for the hearing on 1 May 2020. The plaintiff's solicitors forwarded a copy of that email to Geoffrey on 24 April 2020.

42 On 27 April 2020, the plaintiff's solicitor emailed a copy of his affidavit sworn 27 April 2020 and a minute of the proposed final orders dated 1 May 2020 to Geoffrey and Peter at their respective email addresses. The final orders provided for 'any claims' of Geoffrey and Peter against the estate be barred for all purposes and for the trustee to be authorised to distribute the estate without regard to the claims.

43 In his affidavit sworn 27 April 2020, the plaintiff's solicitor deposed that he had not been served with any summons pursuant to which either Geoffrey or Peter had applied to be added as a defendant to the proceeding.

44 On 30 April 2020, a solicitor, Dr Wyatt, of Abrahams Meese Lawyers ('AML'), informed the Court he had just received instructions from Geoffrey and Peter in relation to the proceeding and sought an adjournment until after 12 June 2020.

45 On 19 June 2020, the Court informed the solicitors that the proceeding would be listed on 14 July 2020 as a special fixture, subject to confirmation of the date by the solicitors. It was noted that there was now a question as to whether or not it was appropriate to consider the plaintiff's final orders on an ex-parte basis or whether Geoffrey and Peter ought be given an opportunity to make submissions, as Dr Wyatt had foreshadowed issues with proper service of the notice. The proposed date was confirmed by the solicitors.

46 On Friday 10 July 2020, at 2.32pm Dr Wyatt forwarded to the Court affidavits affirmed by Geoffrey on 9 July 2020 and by Peter on 10 July 2020. The plaintiff's solicitor was served with the affidavits at 3.58 pm on 10 July 2020. The plaintiff objected to any reliance on the affidavits as their late filing left no opportunity for the plaintiff to file responding affidavits and reserved his right to file further affidavits. In the time available, the plaintiff provided short written submissions in the event that the affidavits were received in evidence. Dr Wyatt did not accept that an adjournment was appropriate on the basis that the affidavits were short. The Court reserved the issue on the basis that if the proceeding were to continue after the current hearing, the plaintiff would be given the opportunity to file responding affidavits.

47 The lateness of the filing and service of the affidavits of Geoffrey and Peter was not explained by Dr Wyatt. By 24 April 2020, Geoffrey was aware that the proceeding was listed on 1 May 2020 as the plaintiff's solicitors forwarded the Court's email to him. Given that Dr Wyatt informed the Court on 30 April 2020 by email that he had just received instructions to act for Geoffrey and Peter and sought an adjournment until after 12 June 2020, he obviously considered that would be sufficient time to obtain instructions. As it happened, Dr Wyatt was given more time than first sought when, on 19 June 2020, the Court informed him the proceeding was relisted as a special fixture for 14 July 2020. This gave Dr Wyatt more than ten weeks to prepare the affidavits. On this occasion he seemingly has had little regard to the overarching purpose set out in s 7(1) of the Civil Procedure Act 2010 to 'facilitate the just, efficient, timely and cost- effective resolution of the real issues in dispute'.

48 At the hearing, Dr Wyatt was critical of the fact that the plaintiff's application was made ex parte as he considered that Geoffrey and Peter need to be involved in the proceeding. This criticism is unwarranted. Where orders are sought under s 30 of the Act an applicant usually issues the proceeding on an ex parte basis. Peter and Geoffrey have since been given ample opportunity to apply to be joined to the proceeding. They have not done so.

49 Section 30 of the Act entitles a personal representative with notice of a claim to be made against an estate to serve upon a potential claimant a notice requiring that person to take within three months all proceedings proper to enforce or establish the claim and duly prosecute it.

50 Once that time has expired, the personal representative may make an application to the Court for certain orders. The application is made pursuant to s 30 of the Act and is made ex parte by a personal representative after the expiration of the notice served under s 30(1) of the Act. This procedure enables a personal representative to finalise an estate as it enables them to bring to a head any unresolved claims brought to their notice.[2]

51 The proceeding is not a vehicle for claims to be proved by a claimant but the procedure ensures that a claimant is not denied an opportunity to be heard and the Court may then make appropriate orders pursuant to s 30(3) of the Act for the finalisation of an estate.

52 The mischief that the procedure was designed to address was explained by Campbell J in Ludwig v Public Trustee in the context of the New South Wales equivalent of the legislation as it existed at the time.[3] Campbell J referred to the Victorian parliamentary debates, in which Sir John Mackey (who proposed the Victorian legislation) identified the mischief as follows:

They give notice of their claims, but will not prove them, in the hope that by that means the executor or the administrator will be induced to make some compromise with them. It almost amounts to a blackmailing proceeding. ... He will not take any steps to prove it, and the executors will have to wait for six years to pass for the claim to be barred. In the meantime the beneficiaries have to do without the property.[4]

53 If the Court is satisfied that proceedings have been taken and are being duly prosecuted, it may order the three month period be extended, alternatively, order that the claim of any person so served with the notice of the application be barred and make any further or other orders enabling the estate to be distributed or dealt with without regard to the claim.[5]

54 Pursuant to r 6 of the Supreme Court (General Civil Procedure) Rules 2015, service may be effected by a number of methods, including by email. The ordinary meaning of service is personal service, that is, the relevant document must come to the notice of the person for whom it was intended.[6] The means by which that person obtains the document are usually not material to the question of whether the notice has come to a person's attention.

55 Dr Wyatt's principal submission was that Geoffrey and Peter were not served with the plaintiff's s 30 notices. As orders under s 30(3) of the Act may only be made after service of the notice and after expiration of the period of three months from the date of receiving the notice, the plaintiff's proposed orders to bar all claims of Geoffrey and Peter against the estate should not be made.

56 In making his submission Dr Wyatt relied on the late filed affidavits of Geoffrey and Peter. Although Dr Wyatt maintained the affidavits were admissible, most of their content was either irrelevant or assertions without any corroboration. Overall, the contents of the affidavits were of minimal relevance. Both Geoffrey and Peter refer to instructing AML to act for them and provide unnecessary details of their communications with AML. Geoffrey states that he was a barrister in Melbourne and Sydney, but no longer practices as a lawyer and now lives in the United States. Geoffrey also opines to recent physical health issues, as well as a compounding of mental health issues and the effects of the pandemic. He did not exhibit any corroborative medical evidence from his doctors or mental health professionals and expresses his own view that his various health issues meant that he was unable to retain lawyers.

57 In respect of the issue of service of the s 30 notice, Geoffrey agreed he received it on 18 March 2019 and that he responded to the plaintiff's solicitor on that same day. Somewhat at odds with this, he also expresses his view that he has never been properly served. Ultimately Dr Wyatt accepted that Geoffrey had been served with the s 30 notice. In addition, Geoffrey's email to the Court dated 14 February 2020 acknowledged that he had received all documents referred to in the orders made on 7 February 2020, which included the s 30 notice.

58 In respect of the submission that the notice had not been served on Peter, Dr Wyatt relied on Peter's late filed affidavit where he said he did not receive the notice. He submitted that as the notice was not served on Peter, the plaintiff cannot seek the orders under s 30(2) of the Act. In the circumstances, the claim should never have been brought and should be dismissed with costs.

59 Peter deposed that the email that was used for him, referring to the 'paypc' email address, 'is an email address I have not used for at least five years and to which I have no access on account of long ago forgotten password [sic]'. Notably, Peter does not depose that the email address is no longer operational. He also referred to a different email address that he has used for more than ten years and information given to the plaintiff's solicitors in 2012 as to that email address as well as his residential address in 2012.

60 The issue of service on Peter is to be considered in the context of the communications between Geoffrey and the plaintiff's solicitors, and Geoffrey and the Court.

61 On 30 July 2018, Geoffrey informed the plaintiff's solicitors that he was looking after the interests of 'my brother Peter and myself'. Thereafter, Geoffrey purported to act for himself and on behalf of Peter in relation to the alleged claims against the estate and the plaintiff's solicitors. Peter has never advised the plaintiff or the plaintiff's solicitors that Geoffrey is no longer looking after his interests in relation to the alleged claims against the estate.

62 Geoffrey has never resiled from his statement made on 30 July 2018 that he was looking after the interests of Peter and himself. He repeated this to the Court in his email on 14 February 2020, when he sought an extension of the orders made on 7 February 2020 and an adjournment of the hearing for himself and Peter. In doing so this informed the Court that he was looking after the interests of Peter and acted on the basis that he has authority to do so.

63 Geoffrey never objected to any of the communications being sent by email. In his communications with the plaintiff's solicitors on 22 August and 5 September 2018 and 18 March and 9 April 2019, Geoffrey copied in Peter using his 'paypc' email address. At no time did Geoffrey ever inform the plaintiff or the plaintiff's solicitors that Peter did not use his 'paypc' email address. After 9 April 2019, Geoffrey no longer communicated with the plaintiff's solicitors.

64 As with Geoffrey, the orders made on 7 February 2020 for communicating with Peter are based on the plaintiff's evidence as to his communications with Peter in 2018 and 2019 using Peter's 'paypc' email address. When Geoffrey sought an extension of the orders from the Court on 14 February 2020, he had the orders which required the plaintiff to email relevant documents to Peter at his 'paypc' email address. At no time did Geoffrey inform the Court that Peter did not use that email address.

65 Given that Geoffrey was acting on behalf of Peter and looking after his interests as from 30 July 2018, the emails sent by Geoffrey in 2018 and 2019 included Peter at his email address, as did the email from the plaintiff's solicitors attaching the s 30 notice on 18 March 2019. The various matters contained in Peter's affidavit fail to change the conclusion that Peter has been served with the s 30 notice. Notwithstanding Peter's assertion in that he no longer has access to the 'paypc' email account, it is evident that the s 30 notice came to his attention, either through that account or through Geoffrey.

66 At the hearing, Dr Wyatt foreshadowed an additional claim over and above the alleged claims. The additional claim was a general allegation of a failure by the plaintiff to account to the beneficiaries. This last alleged claim is new and was first mentioned at the hearing. The late filed affidavits contain no mention of this general allegation. As a foreshadowed additional claim, it is without substance. Even if Peter were joined as a party to the proceeding, it would not justify an order that the three month period within which to make a claim be extended pursuant to s 30(3) of the Act.

67 More than six years has passed since probate was granted to the plaintiff. In that timeframe, the claims made by Geoffrey and Peter continued to be alleged, but not pursued by them. They have been left lingering as a sore to complicate and exacerbate the administration of this estate. The estate must now be finalised.

68 The Court orders that pursuant to s 30 of the Administration and Probate Act 1958 any claims of Geoffrey and Peter against the estate of the deceased, including but not limited to the loss claims ('any claims'), be barred for all purposes and the plaintiff be authorised to distribute the estate without regard to any claims, as that phrase is defined.

69 The plaintiff is to forward to the Court a proposed minute of the orders. If the plaintiff and Geoffrey and Peter are unable to agree on the costs of the proceeding, short written submissions must be filed by Friday, 11 September 2020.

[2] Ludwig v Public Trustee [2006] NSWSC 890; (2006) 68 NSWLR 69, 77 [272] (Campbell J); Re DeBruin [2019] VSC 813, [8].

[4] Victoria, Parliamentary Debates, Legislative Assembly, 19 October 1911, 2023 (Sir John Mackey), quoted in Ludwig v Public Trustee (n 2), 77 [272]-[273].

[5] See, eg, Re Barber deceased [1924] ArgusLawRp 5; [1924] VLR 123, where an extension of time was granted.

[6] Kornicopia Pty Ltd v Tse [2019] VSC 442, [44] (Ginnane J), referring to Howship Holdings v Leslie & Anor [1996] NSWSC 314; (1996) 41 NSWLR 542, 544 (Young J).