RYAN MICHAEL PARTINGTON as executor of the will of PAMELA ANN LANG -v- ROBYN PETA LANG as trustee for LANG FAMILY TRUST [2025] WASC 178 (7 May 2025)

(a) Ryan Michael Partington affirmed on 20 November 2024 (First Partington Affidavit);

(b) Ryan Michael Partington affirmed on 21 March 2025 (Second Partington Affidavit); and

(c) Samantha Bindi Crane affirmed on 20 February 2025.

1. The affidavit of Ms Crane is subject to restriction pursuant to the provisions of the Family Law Act 1975 (Cth), and I will bear that in mind in the matters that I state as part of these reasons.
2. The defendant has not sought to lodge any affidavits in this matter and relies upon written submissions.

1. Pamela left a Will executed on 6 July 2022. Probate was granted to the plaintiffs on 21 December 2023.
2. Robyn is the former wife of Rex Lang, who was the son of Pamela and her husband Bruce. Bruce died in 2004 and Rex died in January 2013.
3. By a demand dated 30 January 2024 issued to the plaintiffs, Robyn, in her capacity as trustee of the Trust, sought repayment of the sum of $720,743 plus compounding interest from the Estate. Monies were said to have been owed to the Trust by Pamela personally, or other entities associated with Pamela. The debts are said to have been owed since at least the end of the 2015 financial year.[1]
4. A further demand was issued dated 26 April 2024, claiming repayment of the same amounts, with a correction as to the amount of interest claimed. In the case of this demand, the debts were said to have been owing since the end of the 2014 financial year.[2]
5. One of the Trust's claims was stated to be a claim against Pamela 'as trustee for CLT from 06.06.2014'.[3] 'CLT' appears to be the 'Cheriton Land Trust'.[4]
6. The Cheriton Land Trust was created by the Cheriton Trust Discretionary Trust Deed, which appears as annexure RMP 8 to the Second Partington Affidavit.
7. SJR Farms Pty Ltd (SJR Farms) is, and at all material times has been, the trustee of the Cheriton Land Trust. Pamela was a director of SJR Farms between 21 January 2010 and 23 April 2015.[5]
8. A second claim made by the Trust was stated to be the amount of $56,000, 'owed by Cimbrone Park from FYE 2015'.[6] Pamela was a director of Cimbrone Park Pty Ltd (Cimbrone Park) from 17 August 1982 to 21 October 2023.[7]
9. Mr Partington is unable to depose to the precise origin of the debts alleged to be personally owed by Pamela and which Robyn alleged the Estate was required to repay to the Trust.[8]
10. The plaintiffs assert that, pursuant to s 13 of the Limitation Act 2005 (WA) (Limitation Act), Robyn's claims are statute barred.
11. Notices were published in the Public Notices section of the West Australian newspaper on 4 April 2024 and 6 April 2024, requiring all creditors and those having claims to which s 63 of the Trustees Act 1962 (WA) (Trustees Act) relates, to send particulars of their claims to the plaintiffs' lawyers within one month, failing which the executors would distribute the assets having regard only to the claims of which they then had notice.[9]
12. By Notice pursuant to s 64 of the Trustees Act dated 27 June 2024,[10] the plaintiffs called upon Robyn, in her capacity as trustee of the Trust, to commence legal proceedings and to prosecute those proceedings with all due diligence, within three months of 27 June 2024, failing which the plaintiffs would commence these proceedings.[11]
13. Robyn, as trustee of the Trust, has failed to commence any such proceedings. Accordingly, the plaintiffs commenced these proceedings.

1. The plaintiffs' primary application is made pursuant to s 64 of the Trustees Act, which relevantly provides:
   1. Claims etc., procedure for barring

(1) Where a trustee wishes to reject a claim that has been made, or that he has reason to believe may be made -

(a) to or against the estate or property that he is administering; or

...

the trustee may serve upon the claimant or the person who may become a claimant a notice calling upon him, within a period of 3 months from the date of service of the notice, to take legal proceedings to enforce the claim and also to prosecute the proceedings with all due diligence.

(2) At the expiration of the period stipulated in a notice served under subsection (1), the trustee may apply to the Court for an order under subsection (3), and shall serve a copy of the application on the person concerned.

(3) Where, on the hearing of an application made under subsection (2), the person concerned does not satisfy the Court that he has commenced proceedings and is prosecuting them with all due diligence, the Court may make an order -

(a) extending the period, or barring the claim, or enabling the trust property to be dealt with without regard to the claim; and

(b) imposing such conditions and giving such directions, including a direction as to the payment of the costs of or incidental to the application, as the Court thinks fit.

1. The plaintiffs submit that, even at their highest, Robyn's claims on behalf of the Trust must be limited to the debts said to be owed by Pamela personally (and thus her Estate). Debts owed by the Cheriton Family Trust and Cimbrone Park are not valid claims against Pamela's Estate.
2. As to the remaining claims, the plaintiffs do not know the precise origin of Robyn's claims on behalf of the Trust, but they do not accept they are debts owed by the Estate to the Trust.
3. Further, and in any event, the plaintiffs contend that the Trust's claims are barred pursuant to s 13 of the Limitation Act, on the basis that the claims as articulated by the Trust accrued no later than 30 June 2015, and the last date upon which the Trust could have commenced proceedings against Pamela was 30 June 2021.

1. Robyn has filed written submissions, by which she has sought to put various matters of fact before the court.
2. The matters of fact include her unsuccessful attempts to obtain legal advice and legal representation in these proceedings, and her misunderstanding of the law as it applies in this case.
3. By her submissions, Robyn has sought an extension of time in which to commence the proceedings. That application is opposed.
4. Robyn also makes a number of assertions of fact as to her present situation and her opinion as to whether it is just that she is in that situation.

1. I am satisfied that the plaintiffs have standing to bring this application as executors and trustee of the Estate, having given notice to Robyn under s 64(1) of the Trustees Act. I am also satisfied that Robyn has not commenced proceedings in support of her claim.
2. Robyn has not adduced any evidence in support of the Trust's claim on the Estate. She has not adduced any evidence as to her intention to commence proceedings, or why she has not done so, save to say that she has not been able to obtain legal advice.
3. Even if I were to regard her written submissions as if they constituted an affidavit, Robyn has not sought to adduce evidence as to the amounts claimed, or any other relevant matter, but has only sought to contest the fairness of different judicial proceedings and their outcome.
4. In particular, Robyn has not given any indication that she will commence proceedings within any reasonable period, or progress them diligently, if given more time. Indeed, the effect of her written submissions is that she considers herself incapable of doing so. That is consistent with the fact that Robyn was put on notice at a hearing before the Master on 19 February 2025 regarding the application, and that no steps have been taken since that date to initiate proceedings.
5. In her capacity as trustee of the Trust, Robyn has failed to commence any claim within three months as provided for by s 64 of the Trustees Act.
6. On the evidence available to the court, the claims made by Robyn in her capacity as trustee have no arguable prospect of success. However, that is not of itself a basis to make any order; it is more appropriate that a court judge that question if any proceedings were ultimately commenced. I do consider it a factor which can be taken into account in determining the appropriate order to make in this case.
7. In my view, given that Robyn first indicated the Trust's claims in January 2024, given the apparent complexity of legal issues involved in her financial affairs, and the fact that she is self‑represented and has not adduced evidence in relation to the Trust's claims, I do not consider it appropriate at this stage to bar the possibility of proceedings against the Estate.
8. However, having regard to the delay, the fact that Robyn does not appear to be making efforts to resolve the issues she has raised, at least at this time, and the likelihood that the Trust's claims against the Estate are statute barred, I do consider that it is entirely appropriate to order that the plaintiffs are entitled to distribute the Estate without regard to Robyn's claims.

1. The plaintiffs also seek an order that Robyn, as trustee for the Trust, pay the costs of the proceedings.
2. These proceedings were commenced because of Robyn's inaction in the face of notification under the Trustees Act.
3. The plaintiffs need to finalise the administration of the Estate. It was appropriate for them to commence these proceedings.
4. Once the proceedings were commenced, Robyn entered an appearance but has failed to take any steps in the proceeding to defend it.
5. I am satisfied therefore, that an order for costs is appropriate.

1. The plaintiffs are at liberty to finalise the administration of the Estate and to distribute it without regard to any claims asserted by Robyn Peta Lang as trustee for the Lang Family Trust.
2. The plaintiffs' costs of the proceedings be paid by the defendant, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[5] Second Partington Affidavit, [10] ‑ [11].

[7] Second Partington Affidavit, [5] ‑ [9].

[8] Second Partington Affidavit, [12] ‑ [16].

[9] First Partington Affidavit, 20 ‑ 21.

[10] Emailed to Robyn on 27 June 2024 and sent by letter to Robyn in her capacity as Trustee on the same date, delivered on 2 July 2024: First Partington Affidavit, 20 ‑ 27.

[11] First Partington Affidavit, 23 ‑ 24.