SUZANNE DALE SMITH by her next friend the Public Trustee -v- MARION KATHRYN PARTRIDGE as executor of the Estate of Thomas Smith [2018] WASC 128 (19 April 2018)

1. The plaintiff has applied for an order in the following terms in each action:

[Previous orders] be varied to provide that the requirement on the plaintiff to serve documents on the first defendant personally be dispensed with and in lieu of personal service the plaintiff be required to serve documents on the first defendant by:

(a) leaving the documents at the front door of [her property]; and

(b) sending the documents by email to [the email address of a third party friend of the first defendant].

1. I have heard the submissions of counsel for the plaintiff, and have read the affidavits on which he relies in support of the applications for those orders, namely the affidavit of Cheryl Lorraine Harrison, dated 9 April 2018, and the affidavits of Catherine Louisa Sadleir, sworn 10 April 2018 and the 17 April 2018.
2. Ms Harrison is a process server and she deposes in her affidavit, and the attachments thereto, to numerous attempts that she made to serve the documents that I had previously ordered be personally served on the first defendant. Those attempts to serve the first defendant took place on numerous occasions towards the end of March, but were unsuccessful, in circumstances where it appears, from the description given by Ms Harrison, that it is likely that the first defendant was attempting to avoid service. Ultimately, Ms Harrison left a copy of the documents in a sealed envelope at the door of the first defendant's home. The documents were also sent by email, in accordance with orders that I previously made, to the email address of a third party friend of the first defendant, who has corresponded by email with the Court on her behalf.
3. Furthermore, the Court this morning has received an email from that third party, which suggests that either he has explained the nature of the documentation to the first defendant or, alternatively, that she has read it herself, having received the envelope left by the process server at her door.
4. Having regard to all of that material, I am satisfied that reasonable attempts have been made to comply with the orders for service, but it has not been possible for the plaintiff to formally comply with those orders. An order should therefore be made by the Court which recognises that the service of the documentation which was the subject of previous orders should be considered effective in drawing the applications to the first defendant's attention, by leaving those documents at the front door of the first defendant's property, and sending them to the email address of the third party.
5. I should add, as well, that for reasons which I will return to later, I am satisfied that the proceedings today and the orders being sought by the plaintiff in each proceeding have come to the attention of the first defendant. Correspondence in the email from the third party, which the Court has received this morning, suggests that the first defendant does not wish to participate in the proceedings, albeit that she is aware of what is involved, and what orders are being sought.
6. I turn to deal with the issues which arise on the applications.

1. The material on which the plaintiff relies in support of the applications

1. The material on which the plaintiff relies in support of application in each matter is exhibit 1 in each matter. Exhibit 1 comprises 14 affidavits sworn by either the instructing solicitor for the plaintiff, an officer of the Public Trustee, or a process server who has endeavoured to serve, or has served, the first defendant with documents on a variety of occasions. In so far as I make factual findings in these reasons, those factual findings are drawn from the affidavit evidence.
2. In view of the fact that the first defendant made clear that she did not intend to participate in these proceedings, I previously made an order that the plaintiff have leave to proceed on affidavit evidence and to rely on affidavits sworn in each proceeding in the other proceeding. Counsel for the plaintiff has also prepared a chronology in relation to the course of events, and submissions in support of the application made in each matter.

2. The facts in respect of CIV 1014 of 2018, and those which also bear upon the application for costs in the contempt proceedings

1. The Public Trustee is the plenary administrator of the estate of the plaintiff, pursuant to an order made by the State Administrative Tribunal in 2014. The plaintiff is one of the daughters of Mr Thomas Smith, the deceased. The first defendant is the other daughter of the deceased. The deceased made a will and the first defendant, who is the executor appointed under that will, obtained a grant of probate of the will on 18 September 2015.
2. By an application in CIV 2936 of 2016, pursuant to the Family Provision Act 1972 (WA), the plaintiff (by her next friend, the Public Trustee) sought, and was granted, an order to vary the will so as to make provision for the plaintiff out of the will. In order to give effect to that order, the Master made an order on 17 February 2017 that the first defendant produce to the Probate Registry of this Court the original grant of probate with the will annexed.
3. Before dealing with some of the facts arising from the Master's order, I digress to observe that, in respect of the estate, the assets of the estate comprise the property, some cash in the bank and a residency bond. The information presently available indicates that the first defendant has transferred the property to herself in her capacity as the executor of the will, as she is described on the title to the property (under her maiden name, Marion Katherine Smith).
4. Following the orders made by Master Sanderson varying the will of the deceased, the plaintiff, on numerous occasions, sought to enforce the order made by the Master that the first defendant produce to the Probate Registry the original grant of probate. That order was not complied with by the first defendant. In September 2017, the plaintiff filed the chamber summons in the contempt proceedings seeking orders that the first defendant was in contempt of the order made by the Master, and ancillary orders.
5. Since that time, there have been further orders made by the Court seeking to secure the first defendant's compliance with the requirement to deliver up the grant of probate. The first defendant has failed to make an appearance, or to appear in the contempt proceedings. Information provided to the Court by the process server suggests that, on occasion, the first defendant has sought to evade service of the orders of the Court.
6. It must be said that the manner in which the first defendant has responded to the contempt proceedings has been wholly unsatisfactory. Information provided by the first defendant to the process server and through a third party to the Court has provided inconsistent information as to whether she has the original grant of probate. Initially, it appeared that the first defendant claimed that she had complied with the order of the Master, but more recent information has suggested that the first defendant has lost the original grant of probate, and that she 'threw out' the grant of probate inadvertently when she cleaned out her home.
7. Additionally, information has been provided to the Court, through the third party to whom I have referred, which suggests that the first defendant suffers from a medical condition, or conditions, which makes it difficult for her to participate in the present proceedings. Assuming that to be true perhaps provides some explanation for the otherwise unsatisfactory manner in which the first defendant, in her capacity as an executor of the estate, has dealt with the contempt proceedings.
8. However, the information provided to the Court most recently (albeit not in an original statutory declaration or affidavit form) nevertheless, leaves me satisfied that the first defendant has lost the original grant of probate. (That conclusion is the reason why the plaintiff no longer seeks an order that the first defendant be found in contempt of orders of the Court and seeks, instead, that the contempt proceedings be dismissed, save to the extent that an order for costs is also sought.)
9. The affidavit material before the Court makes very clear that the first defendant has failed to proceed with the administration of the estate in accordance with the duties upon her as an executor of the estate. Furthermore, as I have already alluded to, she has failed to respond to correspondence from the Public Trustee. She has also failed to respond to the service of orders of the Court requiring her to produce the grant of probate, or to make clear to the Court, with any expedition, her claim that she no longer has the original grant.

3. The Court's jurisdiction to make the orders sought The orders sought in CIV 1014 of 2018

1. The application for revocation of the grant of probate is made in reliance upon the Court's jurisdiction under s 18 of the Supreme Court Act 1935 (WA), or in its inherent jurisdiction. It is well recognised that the Court has a broad jurisdiction in probate matters under s 18 of the Supreme Court Act, including the power to revoke a grant of probate to an executor, which results in the removal of that executor.
2. The nature of the Court's jurisdiction under s 18 was dealt with by his Honour, E M Heenan J in Estate of Rogers v Rogers.[1] I am grateful for his Honour's customary clear, but detailed, elucidation of the relevant principles. His Honour made clear in that judgment that there is a wide variety of circumstances under which revocation of a grant of probate or letters of administration may be made. Broadly, these may be divided into two categories. The first being where it is discovered that there is some error. The second category, of relevance for present purposes, includes revocations made necessary or desirable to ensure the due administration of the estate. The ultimate purpose of the Court's power of revocation is to ensure the due and proper administration of the estate, and of the interests of the beneficiaries.
3. One of the instances where revocation may be appropriate is where the grantee has persistently neglected or refused to carry out due administration of the estate. However, while misconduct by the grantee of probate is sometimes a basis for removal, proof of actual misconduct is not required, and each case depends on the facts. It is a matter of what is best for the welfare of the beneficiaries and of the estate as a whole.[2]
4. In so far as the application to remove the first defendant as a trustee is concerned, to the extent that executorial functions have concluded and an executor holds property of an estate that is undistributed, the executor generally becomes a trustee, and the Court has the power to remove from office a trustee of a trust. In this case, the plaintiff relies on the Court's power under s 77 of the Trustees Act, or its inherent jurisdiction.
5. In my view, in the present circumstances, a precise categorisation of the capacity in which the first defendant holds the assets of the deceased's estate is not required. It suffices to say that the first defendant appears to be performing both functions, namely as an executor and a trustee. It is apparent that she has transferred the property into her own name in her capacity as an executor, however the extent to which other property of the estate has been dealt with by her is not known.
6. In so far as the application is based on s 77 of the Trustees Act, the nature of the Court's jurisdiction under that section was dealt with by White J in Porteous v Rinehart.[3] His Honour also noted therein the Court's inherent jurisdiction to remove trustees. The dominant consideration in exercising the statutory or inherent jurisdiction must be the welfare of the beneficiaries.

The costs orders sought in the contempt proceedings

1. The plaintiff seeks an order that the first defendant pay the costs of the chamber summons in the contempt proceedings, including all reserved costs, on a full indemnity basis, namely all costs incurred by the plaintiff, except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that, subject to the above exceptions, the plaintiff be completely indemnified for her costs. In the alternative, the plaintiff seeks a special costs order, and, in the final alternative, an order for ordinary partyparty costs.
2. In so far as the application for indemnity costs is concerned, the plaintiff relies on the decision of the Court of Appeal in Swansdale,[4] in which the Court made clear that the jurisdiction to award costs on an indemnity basis may be exercised in a variety of instances. An indemnity costs order may be appropriate in situations which are shown to involve some element of improper or at least unreasonable conduct by a party. An indemnity costs order may not be appropriate if the claimed costs would be likely to be recovered under the standard order for partyparty costs, or under a special costs order. Finally, an indemnity costs order will constitute an appropriate sanction marking the disapproval of the Court for improper or unreasonable conduct.
3. The basis for the application for indemnity costs is that the conduct of the first defendant has been unreasonable in all of the circumstances, and such conduct warrants an order for indemnity costs as a sanction of the Court's disapproval for that unreasonable conduct. As I propose to make an indemnity costs order, it is unnecessary for me to deal with the Court's jurisdiction to make the alternative costs orders sought.
4. The affidavit of Catherine Louisa Sadleir, sworn 27 March 2018 (which comprises part of Exhibit 1, the bundle of affidavits on which the plaintiff relies in each application), establishes that the plaintiff has incurred very significant costs in pursuing the contempt proceedings as a result of the failure by the first defendant to respond to the service of orders upon her.

4. Why it is appropriate to grant the relief sought by the plaintiff in each matter

1. I digress to observe at this point that the first defendant has not appeared at the hearing today. I am satisfied that she has been made aware of the nature of the applications that are before the Court for hearing today. The Court has received an email this morning from the third party to whom I have referred, who has been acting, in essence, as a conduit for information from the first defendant to the Court, and to the Public Trustee, in the capacity as a friend of the first defendant. That email indicates that the first defendant is aware of the hearing today, aware that the plaintiff no longer pursues the contempt proceedings, and aware that the plaintiff seeks that probate be reissued to the Public Trustee, but that she does not wish to participate in the hearing or dispute the orders sought, would accept the Court's decision on these matters, and simply wants the proceedings to be over.
2. In proceeding to deal with the matters today, I am satisfied, as I said, that the first defendant is aware of the proceedings, and that there is no unfairness in her in proceeding to deal with the matters today in her absence. I turn then to the grant of relief.

1. Having regard to the affidavit material before the Court, I am satisfied that an order should be made to revoke the grant of probate made to the first defendant. I am satisfied that an order of that kind should be made because the affidavit material establishes that the first defendant has neglected her duties to administer the estate, or, alternatively, that she is unfit to carry out her role as an executor because she is unable to properly undertake that role. In summary, those conclusions are based on the failure by the first defendant to administer the estate, other than, it appears, to transfer the property to herself, in her capacity as the executor of the estate. However, much more recently, and over the many months since the Master made the order to vary the will, the first defendant has failed to communicate with the Public Trustee and has failed to respond to the Court's orders, including to advise the Court of the position with respect to the grant of probate.
2. I am satisfied, in those circumstances, that the first defendant is not fit to continue as an executor and trustee, and that the welfare of the plaintiff, who is a beneficiary of the estate, requires the appointment of a new executor and trustee who will administer the estate in a prompt manner according to law.
3. I observe again that, although the plaintiff does not rely upon the medical condition which, it is claimed, is suffered by the first defendant as a basis for revoking the grant of probate, it may be that that medical condition provides at least some explanation for the neglect of her duties and her failure to communicate with the plaintiff and the Court. Whatever the reason for the conduct of the first defendant, the point remains that the Court is satisfied that she is unfit to carry out the role of an executor, and that the revocation is appropriate in those circumstances. As I have already mentioned, the information provided to the Court suggests that the first defendant is aware of the orders which have been sought by the plaintiff, and does not seek to persuade the Court not to make such orders.
4. In so far as the appointment of the Public Trustee is concerned, as I have said, the Public Trustee was the next friend of the plaintiff in the proceedings before the Master, and it is appropriate the Public Trustee be appointed as the executor of the estate. The Public Trustee has consented to do so. It does not appear that there is any other party who would be eligible to apply for administration of the estate.
5. In those circumstances, it is appropriate to make an order that the Public Trustee be appointed and be granted letters of administration of the unadministered estate. The terms of that grant will be settled by a Registrar of the Court.
6. For the same reasons, t is also appropriate to make orders that to the extent that the first defendant also holds any assets of the estate, she holds the assets as a trustee on trust for the beneficiaries under the will, and that she be removed as a trustee, pursuant to s 77 of the Trustees Act, and, in her place, the Public Trustee be appointed, and the assets in question shall vest in the Public Trustee pursuant to s 78 of the Trustees Act.

1. Having regard to the affidavit material before the Court, I am satisfied that the plaintiff has established that the conduct of the first defendant in the contempt proceedings has been unreasonable. As I have mentioned, the first defendant failed to respond to communications from the Public Trustee, and failed to provide the Court with any indication of the position in respect of the grant of probate, notwithstanding the service on her of orders of the Court, which made very clear that the Master had made an order which required production of the grant of probate to the Court for the purpose of varying the will.
2. As I have also said, information provided by the first defendant to the process server, serving documents for the plaintiff, suggested inconsistently that either the first defendant had complied with the order of the Master, or, alternatively, that she did not wish to comply and, finally and most recently, that it was not possible for her to comply because she no longer had the grant of probate, having thrown it out. I am satisfied, as I have said, that the latter information is the true position, and that it is therefore proper to dismiss the contempt proceedings.
3. However, the response of the first defendant has undoubtedly resulted in a very considerable expenditure of costs by the plaintiff, far in excess of the ordinary costs which should have been required to be expended to vary the will and, ultimately then, to see the estate administered. In my view, it is appropriate for an indemnity costs order to be made as a sign of the Court's disapproval of the conduct of the first defendant.
4. In forming that view, I have taken into account the information the Court has received informally as to the medical condition from which the first defendant claims to be suffering. Assuming, for present purposes, that that information is accurate, it does not adequately explain her long delay in responding to communications from the plaintiff, and to orders of the Court, and in my view, does not excuse the behaviour when it was palpably clear, on the face of the various documents served on her, what was expected of her in her capacity as the executor of the estate and the grantee of probate.
5. Furthermore, some of the information available to the Court in the affidavits of the process server suggests that, at times, the first defendant has deliberately sought to evade service or has chosen not to open documents served on her, and the email from the third party received today by the Court, to which I have earlier referred, contains similar information. That information suggests that it may be that the first defendant had chosen not to read the material served on her, perhaps in the hope that she would be able to avoid the outcome of legal proceedings. That conduct, in my view, also adds to the conclusion that the first defendant's conduct in the contempt proceedings has been unreasonable.
6. It was, in my view, entirely open to the first defendant to have advised the plaintiff and the Court many months ago that she no longer had the grant of probate in her possession, and the numerous hearings that have been required in the contempt proceedings, and the attempts to serve the first defendant with documents on many occasions, could have been avoided. The grant of a costs order on an indemnity basis thus reflects the Court's disapproval of that unreasonable conduct.

1. The orders of the Court, in broad terms, in the proceedings in CIV 1014 of 2018 will, therefore, be as follows:
2. There will be an order that the minute of amended statement of claim, dated 27 March 2018, do stand as the statement of claim, and service of that minute be dispensed with.
3. There will be an order that the grant of probate of the estate of Thomas Smith made by the Court on 18 September 2015 to the first defendant will be revoked.
4. There will be an order that the Public Trustee be appointed in place of the first defendant and be granted letters of administration of the unadministered estate of the deceased, and the terms of that grant will be settled by a Probate Registrar of the Court.
5. There will be an order that, to the extent that the first defendant holds any assets of the estate of Thomas Smith as a trustee on trust for the beneficiaries under the will, that she be removed as a trustee of that trust pursuant to the provisions of s 77 of the Trustees Act, and the Public Trustee will be appointed in her place, and all assets so held, including the property, will vest in the Public Trustee pursuant to s 78 of the Trustees Act.
6. There will be an order that the first defendant pay the plaintiff's costs of the action without recourse to any indemnity from the estate or trust assets, with such costs to be taxed if not agreed.
7. Finally, I will make an order in the action that the plaintiff have liberty to apply with respect to the implementation of these orders. It may be that the Public Trustee will need to come back to the Court if there is any difficulty experienced by the Public Trustee in conveying the property to the Public Trustee, or, alternatively, in ascertaining the extent to which the first defendant has administered the estate thus far.
8. Turning to the contempt proceedings, there will be an order that the application for contempt of court against the first defendant be hereby dismissed, and there will be an order that the first defendant, without any recourse to the assets of the estate, do pay the plaintiff's costs of the chamber summons for contempt orders dated 21 September 2017, including all reserved costs on a full indemnity basis.

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

[1] Estate of Rogers v Rogers [2009] WASC 358.

[2] See, for example, Elovalis v Elovalis [2008] WASCA 141 [30], [31].

[3] Porteous v Rinehart [1998] WASC 270; (1998) 19 WAR 495, 506 - 507.

[4] Swansdale v Whitcrest [2010] WASCA 129(S).