[1999] FCA 1584
Morton v Nylex Ltd [2007] NSWSC 562
Panasonic Australia Pty Ltd v Ngage Pty Ltd (2006) 69 IPR 595
[2006] NSWSC 399
St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
Source
Original judgment source is linked above.
Catchwords
[2003] NSWCA 227
Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405
Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506[2010] NSWCA 69
Hooper v Kirella Pty Ltd (1999) 96 FCR 1[1999] FCA 1584
Morton v Nylex Ltd [2007] NSWSC 562
Panasonic Australia Pty Ltd v Ngage Pty Ltd (2006) 69 IPR 595[2006] NSWSC 399
St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147
Judgment (8 paragraphs)
[1]
Judgment
The plaintiff and defendant are sister and brother. The proceedings concern the affairs of their father, the late John Ernest Hayes of Bemboka on the south coast, who died on 30 July 2016.
In February 2011 the plaintiff brought proceedings in the Guardianship Tribunal concerning Mr Hayes' affairs. A hearing took place on 28 June 2011. The Tribunal recorded the background as follows:
Mr John Ernest Hayes is 74 years of age and currently lives in his own home on one of three grazing properties that he owns in the Bemboka area of New South Wales. Mr Hayes is reported to have Parkinson's disease, a degree of cognitive impairment and also a number of other medical conditions.
Mr Hayes is married and his wife, Mrs Pamela Hayes, who is suffering from multiple systems atrophy is residing at the Bega and District Nursing Home. Mr Hayes has two children, Mr Gregory Hayes [the defendant] and Mrs Marilyn Viljoen [the plaintiff].
In 2006, Mr Hayes appointed his wife as his attorney under an enduring power of attorney. On 23 February 2010, he executed a further enduring power of attorney appointing his son and daughter jointly and severally as his attorneys.
Mr Hayes's properties are heavily mortgaged with his total debts currently standing at approximately $600,000. Over recent years, difficulties have been encountered in meeting financial commitments, re-negotiation of terms has been necessary and there is a real risk of foreclosure in approximately 4 months time. Livestock and equipment have been sold and two of the three properties are currently listed for sale. These two properties have been on the market for some time but have not sold, despite significant reductions in the sale price.
The current plan to address the difficult financial situation, as agreed between Mr John Hayes and his son, Gregory, is for the primary property, Northvale Park upon which the family home stands, together with a property known as Aydes, to be sold to Mr Gregory Hayes, not at their true value which would be well in excess of million dollars, but for $600,000 which is the amount outstanding with the bank.
Mrs Marilyn Viljoen on 17 February 2011 lodged applications for the appointment of a guardian and a financial manager for her father, Mr John Ernest Hayes.
Mrs Viljoen expresses concern about her father's decision-making capacity and the viability of his remaining at home in more than the short term. She wants proper provision made both for her father's future and her mother's future, is worried that the $600,000 debt cannot be repaid and fears that the bank will foreclose. She is also concerned that the current plan to transfer property to her brother, although supported by her father, may advantage her brother but not properly provide for her parents.
At the hearing on 28 June the Tribunal attempted to bring the parties to a settlement. The Tribunal recorded:
Mr John Hayes, Mr Gregory Hayes and Mrs Marilyn Viljoen all indicated that they were prepared to work towards reaching a settlement and to approach that task with a positive frame of mind.
Mr Mirko Kesak, accountant, has acted for the family over a number of years and is well known and well respected by all parties. Mr Kesak furnished to the Tribunal a comprehensive and informative report setting out Mr John Hayes's financial situation over a number of years and the attempts that have been made to address his heavy debt burden.
When the Tribunal broached the question of conciliation, Mr Gregory Hayes helpfully suggested that Mr Kesak might usefully play a part. Mr John Hayes and Mrs Marilyn Viljoen supported this and Mr Kesak himself agreed.
The hearing resumed on 28 July 2011. The Tribunal recorded:
Mr John Ernest Hayes, Mr Gregory Hayes and Mrs Marilyn Viljoen agreed with the following propositions:
1) there is an imminent danger of foreclosure by the ANZ Bank;
2) if the bank does foreclose, then, in the current market conditions, Mr John Ernest Hayes may lose all his three properties and his other assets;
3) Mr Gregory Hayes is in a position to take over the debt on his father's properties. This would involve the transfer of the properties known as Northvale Park and Aydes into his name. This arrangement would be acceptable to the ANZ Bank;
4) under this arrangement, Mr John Ernest Hayes would continue to live in his house on the Northvale Park property for as long as he wishes or is able;
5) Mr John Ernest Hayes's future needs can be met from the proceeds of sale of a property known as Angleys [sic] which is unencumbered and the proceeds of sale of assets which Mr Mirko Kesak estimates are worth up to $100,000;
6) Mr Mirko Kesak confirmed that Mr Gregory Hayes is financially able to service the $600,000 debt which the transaction referred to would involve. The ANZ Bank has also accepted this;
7) Mrs Pamela Hayes is appropriately placed and, financially, her current and future needs can be met.
It appears that steps were taken by Mr Hayes to implement this arrangement. Northvale Park was transferred from Mr Hayes to the defendant on 28 August 2011. There was no evidence about what happened to Mrs Hayes but the Court was informed she has since died.
On 28 November 2011 Mr Hayes made what turned out to be his last will. That appointed the defendant as Mr Hayes' executor and trustee. The will gave Mr Hayes' third property, known as "Anglie" (also referred to as "Angley" in the evidence), to the plaintiff and defendant as tenants in common in equal shares and the residue of the estate to the defendant.
The plaintiff in her affidavit described herself as estranged from the defendant. It appears that the plaintiff has been communicating with the defendant through solicitors since August 2015 at the latest, when the plaintiff's former solicitors requested and obtained a copy of Mr Hayes' will. At that time Mr Hayes was still alive. The course of the proceedings in the Guardianship Tribunal as recorded in the Tribunal's decisions suggests that the plaintiff may have been estranged from the defendant, and possibly also Mr Hayes, at that time.
Although the defendant was appointed as executor of Mr Hayes' estate, he did not take steps following Mr Hayes' death to apply for probate of the will. Instead he appears to have taken control of the estate assets on the basis that he is entitled to them as a residuary beneficiary.
Since Mr Hayes' death, the solicitors for the plaintiff have made various requests for information about his estate and transactions entered into before his death. The plaintiff was not satisfied with the response she received and commenced these proceedings in March 2017. Some information has been provided, in part before the commencement of the proceedings and in part afterwards. As a result of that information, the following matters have been revealed.
Anglie was sold in 2012. Contracts were exchanged on 13 June and the sale completed on 2 July. The balance of the sale proceeds was $678,790.75 and was apparently credited to the account of Mr Hayes with a financial institution known as "Service One". The assets of Mr Hayes' estate at the date of his death were relatively small. The figure given in correspondence was approximately $44,000. Of this, only approximately $30,000 represented monies held with Service One.
[2]
Issues for decision
The key area of dispute between the parties is that the plaintiff has requested bank statements of the deceased for the purpose of finding out what happened to the proceeds of Anglie between the sale in July 2012 and the deceased's death in 2016. She has also sought to go back further to obtain documents concerning the transfer of Northvale Park. These documents are presumably in the defendant's possession but he has declined to produce them.
The plaintiff puts her case in the following ways. First, the plaintiff seeks an order under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 54.3(3) that the defendant produce the relevant documents. Second, she seeks an order in the same terms under the Court's inherent jurisdiction over the administration of trusts. Third, she seeks an order for production of the relevant documents by way of preliminary discovery under UCPR r 5.3(1). Fourth, she seeks in the alternative an order appointing her as administrator of the deceased's estate.
[3]
Application under UCPR r 54.3(3)
UCPR r 54.3(3) provides:
(3) Proceedings may be brought for an order directing any executor, administrator or trustee:
(a) to furnish accounts, or
(b) to verify accounts, or
(c) to pay funds of the estate or trust into court, or
(d) to do or abstain from doing any act.
The term "administration proceedings" is defined in UCPR r 54.1 as meaning:
proceedings for the administration of an estate, or for the execution of a trust, under the direction of the Supreme Court.
Does this provision apply in the current circumstances where probate has not been granted? In my opinion, it does. UCPR r 54(3) is designed to apply both to the administration of the deceased's estate and to the administration of trusts (indeed the former may be seen as no more than a particular instance of the latter). The defendant is in effect acting as executor de son tort. As such, he will be treated by the Courts as bound by the obligations of an executor even though in law he does not hold that status. Whether or not he is an executor, he is in my view clearly a constructive trustee: see Austin, 'Constructive Trusts' in Finn, Essays in Equity at 207-211. The documents in question are assets of the estate and are in his possession. I accept that UCPR r 54.3(3) empowers the Court to make the orders sought.
The power under UCPR r 54.3(3) is wide. But it is confined to the proper administration of the trust or estate in question: Gonzales v Claridades (2003) 58 NSWLR 211 at 217-8. The plaintiff must therefore show that the production of the documents in question is an appropriate step to take in the interests of the proper administration of the estate.
The plaintiff was the beneficiary of a half share of Anglie under the will. But the sale of the property has resulted in that gift being adeemed. The plaintiff now accepts that this is so. The defendant is the sole residuary beneficiary and, in the events which have happened, is therefore the sole beneficiary of the estate. The plaintiff has no interest in the estate.
The plaintiff suggested that the circumstances were suspicious and might give rise to a claim against the defendant. The plaintiff evidently suspects that proceeds of Anglie have in some way found their way to the defendant. The possibility of some sort of mistake on the part of the deceased in transferring Northvale Park was also suggested. But even if it were possible to impeach the transactions concerning Northvale Park or Anglie (or transactions disposing of the proceeds of Anglie) that would not assist the plaintiff. Any recovery from the defendant, or anyone else, would flow back to the defendant as sole beneficiary.
The plaintiff suggested that the documents might demonstrate the existence of notional estate upon which she could make a claim for family provision under the Succession Act 2006 (NSW), Ch 3. But this underlines the problem. Such a claim would involve disturbing the distribution of assets made under the will. To act in aid of that claim would be to act contrary to the interests of the estate as they currently are. If the plaintiff were to obtain an order for family provision in her favour, she would at that point have an interest in the estate sufficient to justify the orders sought. But I do not think the Court's power under UCPR r 54.3(3) could be exercised in her favour in anticipation of her achieving that order, and still less for the purpose of helping her attempting to achieve it. The plaintiff's proper remedy, if any, must be derived from discovery in aid of the family provision claim.
[4]
Application under Court's inherent jurisdiction
It is not in dispute that the Court's inherent jurisdiction over administration of trusts includes a power to require production of trust documents: Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405 at 431.
It is not necessary to decide whether, and to what extent, that power can be exercised by the Court outside UCPR r 54.3(3). Any residual inherent power is likewise confined to the proper administration of the trust or estate in question. For reasons I have already given, it would be inappropriate to make such an order in favour of the plaintiff in this case.
[5]
Application for preliminary discovery
UCPR r 5.3(1) provides:
If it appears to the court that:
(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and
(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and
(c) inspection of such a document would assist the applicant to make the decision concerned,
the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.
The Federal Court rules contain a similar power. The authorities under that rule (in its then form) were summarised by Hely J in St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 at [26]. Subsequent authorities in this Court have relied on his Honour's analysis.
The fundamental requirement of UCPR r 5.3(1) is that the applicant "may be entitled to make a claim for relief from the court". It is sometimes said that the purpose of UCPR r 5.3(1) is to enable the applicant to obtain documents to decide whether to commence proceedings. The requirements of subparagraphs (a) and (c) are consistent with this view. But subparagraph (b) is not. It imposes a requirement that the documents must be such as to "assist in determining whether or not the applicant is entitled to make such a claim".
Each of subparagraphs 5.3(1)(a), (b) and (c) contain words which limit the circumstances in which the orders can be made. The requirements are cumulative and accordingly each subparagraph represents a limitation on the Court's power.
The Court's power to make an order for the production of documents which appears in the chaussure is likewise limited. It only entitles the Court to make orders for discovery of documents that "relate to the question of whether or not the applicant is entitled to make a claim for relief".
It follows that the Court's power to make orders under UCPR r 5.3(1) is confined to documents which are relevant to determining whether the applicant is in fact "entitled to make a claim for relief" rather than the wider question as to whether it is in the applicant's interests to make such a claim. In this regard, the provisions of UCPR r 5.3(1) are clearly different from those which apply in the Federal Court, which allow that Court to require production of documents which "would assist in making the decision" to bring proceedings: Federal Court Rules 2011 (Cth), r 7.23 and its predecessor Federal Court Rules (Cth), O 15A r 6.
In the present case, the putative claim for relief is one under the Succession Act 2006 (NSW), Ch 3. The requirements for a family provision order are set out in s 59, which relevantly provides:
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
…
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
Division 1, which is referred to in s 59(1), consists of ss 57 and 58. Section 57 defines the term "eligible person". Section 58 prescribes the requirements for a valid application. It relevantly provides:
(1) An application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.
(2) An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.
As a daughter of the deceased, the plaintiff is an eligible person for the purposes of the legislation: see s 57(1)(c). The defendant first argued that once eligibility was established, the plaintiff was entitled to bring a claim, no further information was required, and her application should fail for that reason alone.
UCPR r 5.3(1) falls to be applied whenever a prospective plaintiff has a claim against a prospective defendant, whatever the nature of that claim. Claims for damages or compensation arising under the general law or under statute do not usually have standing or eligibility requirements. Rather they depend upon establishing factual elements which together make up the relevant cause of action. Anyone is "entitled" to bring such a claim in the sense that anyone is free to commence proceedings alleging the factual elements of a particular claim against a particular defendant. But "entitled" for the purposes of UCPR r 5.3(1) must mean something more than this or the provision would be largely pointless.
In the Federal Court, the relevant provision previously spoke of circumstances where an applicant "has or may have the right to obtain relief". This phrase was understood as referring to the existence or otherwise of the factual elements of the relevant cause of action: St George Bank at [26], [29]. Despite the difference in wording, in my opinion "entitled to make a claim for relief" in UCPR r 5.3(1) must be understood in a similar sense.
However a family provision claim under the Succession Act is not so easily analysed in terms of factual elements, as a conventional cause of action is. Such a claim requires the Court to make a judgment which involves the balancing of various factors. Furthermore, the Court's powers are expressly required to be exercised by reference to the circumstances as they appear at the time when the application comes on to be determined. Those circumstances will not necessarily be the same as the circumstances which existed at the time the proceedings were commenced, and still less at the time when the application for preliminary discovery was made.
Despite these difficulties, I think that the Court must, in determining whether the plaintiff "may be entitled to make" a family provision claim, go beyond the question of statutory eligibility under s 57. I think the question also requires consideration of whether there appears to be a sufficient case that the provision made for the applicant will be seen at the hearing to be inadequate "for the proper maintenance, education or advancement in life" of the applicant. I therefore reject the defendant's first submission.
The defendant next argued that the plaintiff had failed to demonstrate a sufficient case for entitlement to relief to enliven the Court's powers under UCPR r 5.3(1).
In Hooper v Kirella Pty Ltd (1999) 96 FCR 1, the Full Federal Court, referring to the predecessor to the existing Federal Court rule, stated at 11-12 [39] (citations omitted):
…
O 15A, r 6(a) poses an objective test, namely whether there is reason to believe that the applicant has or may have the right to obtain relief from the prospective respondent. While it is not necessary for the applicant to demonstrate a prima facie case, it is not enough merely to assert that there is a case against the prospective respondent.
In St George Bank, Hely J said at [26] (citations omitted):
The following propositions emerge from the authorities in which the proper application of O 15A r 6 has been considered by judges of this court:
...
(c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one. Further, the words "or may have" cannot be ignored. The applicant does not have to make out a prima facie case;
(d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action;
In Panasonic Australia Pty Ltd v Ngage Pty Ltd (2006) 69 IPR 595, Young CJ in Eq stated at 598 [20] that:
However, as counsel submit, for the purposes of the present proceedings, all that the plaintiff need show is that the contemplated proceedings are likely to rest on some recognised legal ground and does not necessarily have to show a prima facie or pleadable case so long as there is reasonable cause to believe that the applicant may have a right to obtain relief in the court, its mere assertion that there is such a case being insufficient. The authority for that proposition is Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at 11-12, a decision on comparable rules in the Federal Court.
This statement has been relied upon on subsequent occasions in this Court: Morton v Nylex Ltd [2007] NSWSC 562 at [25]; Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 at 520 [47]-[48]. I accept that if the Court's satisfaction reached the level of "reasonable cause to believe" that there was a claim, the requirements of UCPR r 5.3(1) would be satisfied. However, I am not sure that it is necessary that the degree of satisfaction needs to reach that level. The Federal Court Rules previously used the term "reasonable cause to believe that the applicant has or may have the right to relief" but all that is required for the purpose of UCPR r 5.3(1) is that it "appears" to the Court that the applicant "may be entitled to make a claim".
As I have noted, the plaintiff is an "eligible person" for the purposes of the application and she is still within the twelve month period to bring the necessary claim. In order to obtain relief, she will need to show, at the date of hearing, that the provision made for her by the deceased's will is inadequate. In the events which have happened, no provision has been made. What will need to be shown is that some provision was required.
It appears that in July 2011 it was thought that the "proceeds" of Anglie would be used to meet the care needs for the deceased. The use of the word "proceeds" implies that it was contemplated that Anglie would be sold. However in November 2011 Mr Hayes made a will leaving Anglie to the plaintiff and the defendant. This suggests that by then it had been decided that Anglie would be retained.
Yet within less than five years Anglie had been sold the proceeds had been almost entirely dissipated. Even if the proceeds did turn out to be needed to meet care needs for the deceased, that still seems surprising. However, it remains possible that the proceeds were used by the deceased in a manner which had not necessarily been foreseen in November 2011 when he made his will, but which the Court might ultimately accept was consistent with adequate provision having been made for the plaintiff.
The defendant pointed out that the assets available to meet a claim for family provision may be limited by timing considerations. A transaction involving the deceased's assets can only be impeached for the purpose of bringing those assets into notional estate if it took place in the twelve months before the deceased's death (in the case of a transaction entered into when the deceased had a moral obligation to make adequate provision for the applicant which was substantially greater than any moral obligation to enter the transaction) or if it occurred during the three years before the deceased's death (if entered into for the purpose of avoiding family provision applications): Succession Act, s 80(2). Anglie was sold four years before Mr Hayes' death and it may be that the proceeds were dealt with before the relevant time limit, so that they could not be designated as notional estate under any circumstances. The defendant pointed out that there was no evidence whatsoever as to when and in what circumstances the proceeds of Anglie were disbursed.
In riposte, the plaintiff pointed out that this is a situation which is one of the defendant's own making. Counsel for the plaintiff suggested that the very fact that the defendant was refusing to produce the documents in question, which could not have been difficult to obtain, suggested that the defendant had something to hide.
I do not think the plaintiff is assisted by some form of Jones v Dunkel inference. All that the Court knows is that the plaintiff is now estranged from the defendant, and may have been for some time. The Court has no information on the rights and wrongs of the parties' conduct which led to the estrangement. For all the Court knows, previous conduct of the plaintiff may provide an explanation for why the defendant is apparently taking a strict view of the legal position. More importantly, the onus lies upon the plaintiff to make her application good, and the absence of evidence can only be used to strengthen inferences which are otherwise supported by the evidence before the Court. I think that in the present circumstances it would be mere speculation to conclude that the proceeds of Anglie were disposed of in a manner which would give rise to a claim by the estate, or would result in the designation of assets as notional estate.
In any event, I accept that the material before the Court is sufficient to establish that the documents in question may be relevant to a family provision claim by the plaintiff if she brings one. Although I do not think that there is reason to believe affirmatively that there are assets capable of being designated as notional estate, that is a possibility. Moreover, the documents may show that a claim is available at the instance of the estate against the defendant or perhaps someone else; if nothing else, they will show the manner in which Mr Hayes thought it fit to dispose of the proceeds of Anglie, a half share of which under his will had been intended to pass to the plaintiff. Accordingly the documents are likely to bear on factors which are relevant to the adequacy of the provision made for the plaintiff: see Succession Act, s 60(c). In particular, the documents bear on the size of the estate which in turn is relevant to the adequacy of the provision made for the plaintiff. The question is whether this is enough to satisfy the requirements of UCPR r 5.3(1).
The fact that Mr Hayes intended to benefit the plaintiff to the extent of a half share of Anglie is relevant to a potential family provision claim but does not itself take the plaintiff very far. As his daughter, the plaintiff was a natural object of Mr Hayes' testimonial bounty. That does not mean that her needs were such as to require provision in her favour.
The plaintiff presented no evidence of her means or her needs. It was an agreed fact for the purposes of these proceedings (introduced by the defendant) that the plaintiff's partner recently sold property in the ACT for approximately $3.4 million, the property being encumbered as to $1.56 million.
In these circumstances, I think there is no basis in the material before the Court for saying that the plaintiff "may be entitled" to bring a family provision claim in the relevant sense. For all the Court knows, the plaintiff could have extensive assets available to her which are well able to satisfy her requirements for "proper maintenance, education or advancement in life". I accept that the size of the estate and the way in which the proceeds of Anglie were expended may be relevant to determining whether requirements for maintenance, education or advancement propounded by the plaintiff are "proper" in the relevant sense, but here there is no evidence that the plaintiff has any such requirements. It is as if a man involved in a car accident sought preliminary discovery against a prospective defendant without proving that he had been injured. In my view the power under UCPR r 5.3(1) is not enlivened.
I do not think that the fact that the documents are potentially relevant is enough to bring the documents within UCPR r 5.3(1). They do not bear on issues which are elements of the plaintiff's potential claim in the sense that their presence would be necessary or their absence would be fatal.
If it were otherwise, the plaintiff would be entitled to obtain documents bearing on other factors relevant to the determination of the adequacy of the provision, such as the defendant's own needs and the resources available to the defendant outside the estate, from his spouse and other members of his family. These are also relevant factors in assessing the adequacy of the provision made for the plaintiff: see Succession Act, s 60(d). That material may well be discoverable if proceedings are launched but I find it impossible to accept that it could be obtained by way of preliminary discovery.
Counsel for the plaintiff candidly accepted that the application was being made to determine whether the estate potentially contained assets sufficient to make the bringing of a claim financially worthwhile from the plaintiff's point of view. I do not think this is a legitimate basis for an application for preliminary discovery. For reasons I have already given, I think that UCPR r 5.3(1) is confined to establishing the existence or non-existence of elements of a potential claim and does not extend to finding out whether the defendant has sufficient assets to meet such a claim if made. Whether a defendant is insured or assets are otherwise available to make the claim worthwhile is not something a plaintiff is generally entitled to know. I do not think a potential plaintiff should be able to use preliminary discovery to achieve a better position. Although in this case the documents in question would be discoverable, that is a peculiarity of the particular putative claim and should not distort the way in which the rule is applied.
Even if I considered that the circumstances fell within the wording of UCPR r 5.3(1), I would still refuse to make the orders sought in the exercise of my discretion. The critical question is whether, having regard to the plaintiff's financial circumstances, she needs provision from the estate. The plaintiff has not put evidence of her circumstances before the Court, but she must know what they are. I do not see why the Court should assist the plaintiff when she has not attempted to prove that she needs assistance. The defendant accepts that the plaintiff will ultimately be entitled to the documents sought by way of discovery if she commences proceedings. In my opinion, the plaintiff has sufficient information to make the decision and she should rest content with that.
[6]
Application for appointment as administrator
The defendant submitted there was no power to appoint the plaintiff as administrator of the deceased's estate. It is not necessary to go into this. At present the plaintiff has no interest in the estate. To appoint her to administer the estate essentially in favour of her brother as a residuary beneficiary would be a recipe for further dissension and dispute. I see no ground in the present circumstances for any such appointment.
I should note in passing that in the course of the hearing the defendant undertook to apply for probate of the estate. Presumably this means that the actions which he has so far taken as de facto executor will ultimately be regularised.
[7]
Conclusion and orders
For the above reasons, I am not persuaded that I should make an order for production on any of the bases advanced. Nor am I persuaded that I should make an order appointing the plaintiff as administrator of the estate.
I must therefore refuse the application. I will hear the parties on costs if that proves necessary.
The orders of the Court are as follows:
Order that the Summons be dismissed.
Grant to the parties liberty to apply with respect to costs of the proceedings, such liberty to be exercised within 28 days.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 21 June 2017