Estate of the late L G Nicol v Parslow
[2002] QDC 41
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Estate of the late L G Nicol v Parslow[2002] QDC 41
Estate of the late L G Nicol v Parslow[2002] QDC 41
DISTRICT COURT | No 4628 of 2001 |
APPELLATE JURISDICTION
JUDGE McGILL SC
MICHAEL RONALD PARSLOW, EDWARD J BELL, PETER ANDEW CORDWELL, GEOFFREY MARTIN DOYLE, EDGAR RONALD TEMPLE, DAVID McGRANE, IAN DOUGLAS HAIGH, FRED MURRELL, PHILIP MEADE, JOHN CHARLES BARBOUR, STEPHEN ADRIAN, DAVID PITT, GARY ABDY, MARK RANDALL, BRIAN GRAEME HILEY, ANDREW VIVIAN, RAMON SYDNEY CARTER AND JOHN LAMPARD BEING PARTNERS OF THE PARTNERSHIP KNOW AS PRIESTLEY AND MORRIS | Plaintiffs/Respondents |
and
ESTATE OF THE LATE L G NICOL | Defendant/Appellant |
BRISBANE
DATE 31/01/2002
JUDGMENT
HIS HONOUR: This is an appeal from a decision of a Magistrate at Brisbane who, on 27 August 2001, extended the period of validity of a claim under rule 7. The plaint was originally filed on 18 December 1998, but it was not at that stage served. The order that was made was that the plaint be renewed for a period of two years commencing on 19 December 1999.
The plaint and summons which was issued under the former Magistrates Court Rules seeks to recover from the estate of a deceased former partner a contribution to certain legal costs incurred by the partnership after the former partner had left it, but in respect of matters which arose at the time when he was a member of it.
It is alleged that an obligation to make such payments arose because of the terms of an agreement between the partners entered into during the course of the partnership. The amended claim and statement of claim were filed in April 2001.
On the face of that document, the matters in issue would be what the terms were of the agreement between the partnership and the deceased's former partner, and what legal costs had been incurred, and whether those costs fell within the terms of any obligation imposed by the agreement.
The former partner retired in December 1988 and the first claim against him by the plaintiff in respect of these legal costs occurred in May 1994. There were then further progress in the legal claims up to 12 March 1995, when the former partner died. His estate was subsequently represented by his widow, who became the sole executrix and was also the sole beneficiary. She obtained a grant of probate at some stage.
A further claim for contribution was made by the plaintiff in June 1995. A letter of demand in relation to these claims was forwarded in April 1998 and after some further negotiations between the solicitors, the plaint was filed in December 1998.
The defendant's solicitors were asked whether they had instructions to accept service on 25 February 1999 and they advised the following day that they had instructions. Accordingly, at any time thereafter it would have been a simple matter of serving a copy of the plaint and summons at the office of the solicitors in Brisbane, however, that was not done.
The reason given for not doing it is that at about the same time proceedings were commenced in South Australia, which were very similar to these proceedings, and the plaintiffs sought to run the South Australian proceedings as a test case, in effect. That matter was taken to judgment. There was an appeal to the Supreme Court and that appeal was dealt with, save in relation to costs, in November 1999.
At that stage, the plaint and summons were not yet stale, although they became so a couple of weeks later. There were, however issues of costs outstanding which were not finalised apparently until December 2000.
After the South Australian proceedings were otherwise concluded in November 1999, there was some further communication between the solicitors for the parties in relation to the matter, which would not have suggested that the matter was being abandoned, in February and March 2000, but nothing further would have come to the notice of the defendant's solicitors until April 2001.
In the meantime, the plaintiffs' solicitors applied ex parte to the Registrar of the Magistrates Court for an extension or for renewal of the plaint under rule 24(2). That order was originally made by the Registrar.
The defendant, after what was then the amended claim and statement of claim was served, applied to have that order re-heard by a Magistrate and on 16 July 2001 that order was set aside on the re-hearing. However, it was set aside on the basis that the plaintiffs were given the opportunity to apply to a Magistrate for an extension or for renewal of the amended claim and statement of claim, and that application came on before a different Magistrate on 27 August 2001 when an order was made that it be renewed. As I have indicated, the defendant is now appealing from that order.
Although reference was made to rule 24(2) by the Magistrate, that rule is concerned with the power of a Registrar to renew the claim in certain specific circumstances in my opinion it has no direct application to an application to a Court to renew a claim. Such an application is really an application made under rule 7 for an extension of the time period specified in rule 24(1) of one year.
Nevertheless, the principles which are applicable in relation to such application are similar. It is necessary for an applicant plaintiff to show that there was some good reason why the order should be made, but subject to that, the Court has a wide and unfettered discretion as to whether or not to renew the proceeding. See McDonnell v. Rowley [2001] QCA 32.
In that decision the Court of Appeal approved as various relevant factors the merits of the plaintiff's claim, the length of the delay, the absence of satisfactory explanation for the delay, that the delay had been deliberate, although service might have been effected with little cost, the failure to give notice to the claim to the respondent or his insurer, hardship to the appellant if the application were dismissed, and prejudice to the respondent if it were granted.
In that case the application for renewal was refused by the Judge at first instance and the refusal was upheld on appeal.
There is also a relevant statement by Pincus JA in Muirhead v. The Uniting Church in Australia Property Trust [1999] QCA 513 where his Honour applied some statements made in a different context in the High Court as follows:
“1. There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.
- The discretion may be exercised although the statutory limitation period has expired.
- Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
- There was a wide and unfettered discretion and there is no better reason for granting relief than to see that justice is done.”
That statement was quoted by her Honour Mullins J in Major v. Australian Sports Commission [2001] QSC 320 which was also concerned with the renewal of originating process.
The Magistrate in the present case gave reasons which were quite brief. The substantive reasons really consisted of saying:
“Whilst I am satisfied that there has been delay on the applicant/plaintiffs' part, I am not satisfied that it is sufficient to prejudice the defendant/respondent considering her knowledge of and involvement in the issues of events between the parties.”
That indicates that he has, at least, considered the question of delay and the question of prejudice to the defendant, although one aspect of it is puzzling. The reference to “the defendant's knowledge of and involvement in issues and events between the parties” is unclear.
Although she had been involved in some negotiations after the death of her husband, it is not suggested and it does not appear on the evidence that was before the Magistrate that the executrix had any personal knowledge either of the terms of the agreement between the plaintiff and the deceased partner, or the circumstances giving rise to the litigation, or the circumstances involving the incurring of legal costs, which are the matters which actually be an issue in the course of a trial of this claim.
On the other hand, it is correct to say that she had knowledge of the claim from an early stage, certainly from the time when her husband died and she was responsible for the administration of his estate and she was aware from a time soon after the plaint was issued that a plaint had been issued and the claim was to be made, so that this was not a situation where proceedings had been issued but the defendant had no knowledge of them.
That was one of the considerations said to be relevant by the Court of Appeal in McDonnell.
This was a case where there was a deliberate decision not to serve the plaint, although that was not for tactical reasons or simply because the plaintiff was still considering whether or not to pursue the matter, but rather to enable other proceedings to be run first, namely the proceedings in South Australia.
It would have been better if this had been dealt with either by arrangement with the defendant or by an application for staying the proceeding after it had been served on the defendant. However, it does provide some explanation and shows that this is not really the same situation as that considered by the Court in McDonnell.
Once the proceedings in South Australia had finally concluded, including the question of costs, some steps were taken to have the claim renewed reasonably promptly, although the operative application was not made until sometime later. That was partly because the wrong procedure was adopted to deal with the application for renewal, since by that stage a renewal for a period of one year would not have been sufficient.
However, at least the plaintiffs were attempting to get the action going again by April 2001, even though they did not make the correct application until August 2001. Nevertheless, I think there is some force in the proposition that there has been inappropriate delay on the part of the plaintiffs. That was a factor which the Magistrate appears to have been aware of, and appears to have taken into account.
He regarded that circumstance as being outweighed by the consideration that there had not been any prejudice to the defendant as a result of the delay.
There were two particular aspects of prejudice mentioned on behalf of the appellant. One was the fact that the estate had been fully distributed, but in circumstances where the estate was distributed beneficially to the executrix who was also sole beneficiary, that feature, I think, is of relatively little significance. She received the estate being aware of the claim and even if at that stage she expected the matter was not going to be taken any further, she is not really any worse off simply because the estate had been distributed to her beneficially.
The other aspect arose from the fact that her husband had died and this suggests the possibility that he might have known something which was relevant to this claim and might have been aware of circumstances which could have given rise to a good defence may have died with him.
For example, he may have been aware of some further agreement, perhaps one entered into at the time when he retired from the partnership, under which he would be exempted from a liability of this nature. That is a possibility, but there is no material available to suggest that anything such as that has actually occurred.
There is also the circumstance that a claim was made against him for a contribution about ten months before he died and there is no suggestion that he raised any such defence during that period himself, nor does he seem to have taken steps to preserve any documentation which was relevant to any such defence.
The argument, in my opinion, really comes down to the proposition that because Mr Nicol is dead, there is a possibility that some relevant knowledge has died with him, but it is really no more than a speculative possibility. That is not, in my opinion, a factor which should be given great weight.
In relation to the apparent merits of the plaintiffs' claim, there is the circumstance that I was told of the similar claim in South Australia that was ultimately resolved in a way in which was favourable to the plaintiffs, and I suppose that counts for something.
The various factors therefore which emerged and which were relevant and which were available to be taken into account by the Magistrate, or at least should have been taken into account by him, indicate that an analysis similar to that which he briefly expressed in his reasons was not inappropriate, or at least perhaps not inappropriate.
In circumstances such as this, it is not a matter for me to consider afresh whether or not the discretion should be exercised in a way favourable to the appellant, but rather whether it appears that some error has been made in the exercise of the discretion by the Magistrate by failing to take into account a relevant matter, or by taking into account an irrelevant matter, or whether he has reached a decision which no reasonable Magistrate could have arrived at in such circumstances.
It seems to me that there is nothing to indicate that he has misapprehended the relevant tests. He was provided, for example, with copies of the authorities to which I have referred. He has referred to relevant considerations in the form of the extent of the delay and the question of prejudice and the fact that the defendant had been aware of the claim for a long time I think is in substance what he was referring to, and the absence of significant prejudice to the defendant as a result of the delay, which does seem to me the appropriate conclusion to be arrived at in the light of the material before him.
I am not persuaded that he has failed to take into account relevant considerations or has taken into account irrelevant considerations. The situation essentially is that this was a matter where it was open to him to exercise a discretion in favour of the plaintiffs and he has done so.
In my opinion it is not a case where it is appropriate to interfere on appeal from an exercise of discretion, and the appeal is dismissed.
...
HIS HONOUR: The appeal is dismissed with costs.