Richardson v Pedler

1 THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

111752/99 ROBYN ANNE RICHARDSON v GLENN ANTHONY PEDLER - THE ESTATE OF ROGER KEVIN PEDLER

1 HIS HONOUR: The defendant, Mr Pedler, by Notice of Motion filed on 23 August 1999 seeks an order that the statement of claim filed by Robyn Anne Richardson be dismissed or, alternatively, that it be struck out. There are some additional orders sought which I need not deal with at the present time. 2 The application is made under the provisions of Part 13 rule 5 of the Supreme Court Rules, it being claimed either that the proceedings are frivolous or vexatious, or that the proceedings are an abuse of process of the Court. What is in essence alleged is that the action is doomed to fail. 3 It is not necessary to deal with the claim under Part 15 rule 26 of the rules, that being more a pleadings matter. If the applicant succeeds, then, in my view, he must succeed under Pt 13 r5. 4 In the action under challenge the plaintiff, Ms Richardson, claims she was a defacto wife of the late Roger Kevin Pedler who died on 25 August 1994. As I understand it, it is not contested that she was such a wife. 5 It is claimed that the deceased left a Will dated 5 December 1993 which he signed but did not have witnessed; that on 10 July 1996 as a result of a Deed of Arrangement between the plaintiff and the defendant Letters of Administration of the Estate were granted to the plaintiff; that the defendant then took proceedings in matter number 1860 of 1997 in the Equity Division of this Court seeking to have the Deed of Arrangement set aside and the grant of Letters of Administration revoked; that by orders made on 20 November 1997 in those proceedings Young J revoked the grant of Letters of Administration, declared that a document which I will call a reconstructed Will was validly executed by the deceased and had not been revoked at his death, and ordered that Letters of Administration with that reconstructed will annexed be granted to Mr Pedler. 6 That Will in respect of which a grant was sought and made in those proceedings, although not identified by date in the orders or not dated, which may have been an error, apparently was alleged to have been made in 1991, as reference to the judgment of His Honour at page 21 will make clear. 7 Ms Richardson seeks to have that grant revoked and seeks an order that Probate of a document dated 5 December 1993 be granted to her, that document being one signed by the deceased but not witnessed which, if it were a document which ought to be admitted to Probate, gave the whole of the Estate of the deceased to Robyn Anne Richardson apart from a home unit at Ashfield which was left to the deceased's second son, the present defendant, and subject to certain provisions which were made as to the deceased's pets and for his friend Colin Crockett. This document purported to appoint Mr Hickey, solicitor, as executor. Mr Hickey has renounced any right to apply for Probate of that document. 8 If the claim of the plaintiff in these proceedings is to succeed, then it could only succeed, as I understand it, if an order were made under s18A of the Wills Probate and Administration Act 1898 in the event that the Court was satisfied that the document, although not formally executed in accordance with that Act, was a document which the deceased intended to constitute his Will either at the time of execution or at some later identified time. I only add that because to that extent it may be that if the claim were allowed to remain on foot it would have to be repleaded to make that issue plain. 9 The defendant seeks to have the proceedings dismissed because they are doomed to fail either because a defence of one of res judicata, issue estoppel or what might be described as an Anshun estoppel being an extension of the res judicata principle, must succeed. 10 In the proceedings before Young J for a grant of representation of the Will which His Honour found Ms Richardson had destroyed, there was reference made to what was described in His Honour's judgment as "a draft will signed by the deceased on 5 December 1993 but not witnessed". It is that document which the plaintiff seeks now to have admitted to Probate. His Honour said:

Mr Sheppard an estate agent in the Hunters Hill district, has deposed that the deceased brought this signed form to his office with a request for it to be witnessed. Mr Sheppard returned it with a message that the document would have to be re-executed in the presence of himself and another witness but the deceased did not return. 11 On page 21 of the Judgment the following paragraph appears: The other evidence suggests that the deceased was trying different drafts of a replacement Will between 1993 and his death but he never got around to executing them. The preponderance of the evidence suggests that it was this 1991 Will that the defendant destroyed.

12 In the summons in proceedings 1860 of 1997 Mr Glen Pedler, the defendant in the present proceedings, sought the following orders: 1. That the grant of Letters of Administration of 10 June 1996 be revoked.

2. A declaration that the deceased wrote and executed a Will, the substance of which was as found by His Honour and of which a grant was made. 3. A declaration that at the date of death of the deceased that Will had not been revoked. 4. An order that Letters of Administration with that Will or that Will as reconstructed annexed be made to him. 13 His Honour found in favour of Mr Pedler and made orders: 1. Revoking the grant of Letters of Administration.

2. Declaring a document in the form annexed to the orders to have been duly executed as a Will and not to have been revoked by the deceased.

3. That subject to compliance with the rules of the Court Letters of Administration with the reconstructed will annexed be granted to Mr Pedler. 14 A grant has been made accordingly. 15 The present plaintiff filed a Notice of Appeal appealing against the decision of His Honour. Ground 4 of the grounds of appeal was: His Honour erred in fact and in law by not finding that a Will signed by the deceased, the late Roger Pedler, dated 5 December 1993 was the last Will and Testament of the said Roger Kevin Pedler.

Ground 7. His Honour erred in fact and law in holding that the Will dated 5 December 1993 did not revoke any previous wills made by the deceased. 16 In Probate proceedings where there is a claim whether by summons or by statement of claim for a grant of letters of administration of an Estate, or a claim for a grant of Probate or Letters of Administration with the Will annexed, if the defendant wishes to assert that Probate or administration ought not to be granted because the will propounded was not the last Will of the deceased, or because in the case of a claim for administration the deceased left a will, then that is a matter to be raised by way of defence and if possible, in appropriate cases by way of cross-claim if the defendant is a person entitled to a grant in respect of a later testamentary instrument. 17 In the present case, the document which Ms Richardson now seeks to have admitted to Probate was a document under which she was appointed to be principal beneficiary. She would therefore be the person who had the prior entitlement to a grant of Letters of Administration with the Will annexed in the event of revocation of any right to Probate by the executor named in that document. 18 An issue must always arise in contested Probate proceedings as to whether or not the document propounded for Probate or Letters of Administration with the Will annexed is the last Will of the deceased, and although it is perhaps unfortunate that the earlier proceedings did not proceed by way of pleading, there can be no doubt from the orders sought in the summons that this was an issue between the parties. That I think is made more clear by the judgment of His Honour which clearly addresses the question of this later document by the orders he made, and by the grounds of appeal. 19 This, of course, is not a final determination. What must be determined in an application such as this is whether or not the claim of the plaintiff is doomed to fail accepting as I do that the estoppel defences would be raised. I have said on another occasion in Maronis Holdings Limited & Anor v Nippon Credit Australia Ltd (unreported 6 October 1994) following a suggestion in Effem Foods Pty Limited v Trawl Industries of Australia Pty Ltd (1993) 115 ALR 377 at 387 that the preferable course in matters like this is for the defendant to plead to the statement of claim and then for the court to order the defences based on estoppel be tried first and separately. However, in Maronis I did make an order for dismissal under Pt13 r5, which was upheld by the Court of Appeal, so that is clearly in order in proper cases. I have come to the conclusion that the issue the plaintiff seeks to litigate in this action is one which has been determined between the plaintiff and defendant by the judgment of Young J. Mr Mee Ling, solicitor for the plaintiff, has argued that the earlier proceedings were between the same parties but in different capacities. I do not accept that to be the position. The parties in the earlier proceedings were either claiming revocation of a grant and a new grant of representation of the Estate of the deceased, or seeking to retain the grant which had previously been made. They were in precisely the same interest in those proceedings as they are in the present proceedings, at least insofar as those claims were made. 20 If I were wrong in my finding that the proceedings ought to be struck out on the basis that the defendant is vexed by having to defend an action which has been already decided, in other words is subject to cause of action estoppel, in my view a defence based on extended estoppel within the principles of Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 as expounded in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 would succeed. The plaintiff was clearly aware of the later document now sought to be propounded during the earlier proceedings by way of cross-claim. Any claim that the plaintiff's claim in those proceedings could be defeated through some later document entitled to be admitted to Probate was a claim which ought properly to have been made in those proceedings. While it is necessary when dealing with what is conveniently called Anshun estoppel to consider whether or not it was reasonable for a party not to put forward a claim then available to it, in my view it could not be said in these proceedings that it was in any way reasonable for Ms Richardson not to put forward that claim. As I have said it appears to have been accepted that she did so in the grounds of appeal, but if she did not then clearly she ought to have done so, because a successful claim in the nature of the one which she now wishes to bring would have meant the failure of the claim which Mr Pedler made in those proceedings. 21 Thus, while the plaintiff in these proceedings was not able to plead that matter by way of defence in summons proceedings, she was required to bring it up by way of the cross-claim. For that reason also I am of the view that a defence based on extended estoppel would succeed; in traditional terms, the defendant being vexed by having to meet a claim which ought to have been made at an earlier stage. It follows the present claim should be dismissed pursuant to Part 13 rule 5. I propose to make that order. 22 A claim has been made by the defendant for indemnity costs on the basis that there has been continuing litigation between the parties and that as this action was doomed to fail it has all the hallmarks of being an abuse of process and that the Court ought to visit such an abuse with an order for indemnity costs. 23 I am not certain that is the position at least in respect of many matters which are dealt with under Part 13 Rule 5 which is a convenient method of dealing with claims at an early stage when it is clear that they ought not to be allowed to continue, that being the view that I take of the present case. This matter is perhaps close to the borderline, the crossing of which would justify an order for indemnity costs being granted in view of the earlier litigation between the parties. However, I do not consider that it is such an abuse that such an order ought to be made.

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