Strain v Walsh[2011] QDC 165

DISTRICT COURT OF QUEENSLAND

1. [1]
   Kathleen Walsh (also known as Kay Strain) brought an application in this Court^[1] seeking an order that adequate provision be made for the proper maintenance and support of herself out of the estate of the late David Strain. Mr Strain and Ms Walsh commenced cohabitation in 1966 and this continued until Mr Strain died on 17 October 1997. Mr Strain made a will on 18 October 1979 in which he devised and bequeathed the whole of his estate, both real and personal, to his trustee upon trust to sell and after payment of his debts, the balance was to be paid to his sister^[2] provided that she survived Mr Strain for the period of 30 days. In the event that Mr Strain’s sister predeceased him or failed to survive him for the period of 30 days, the estate was to pass to the children of the deceased sister as tenants in common in equal shares. Mr Strain directed his trustee to pay the income from his estate “to my friend, Catherine Walsh (also known as Catherine Strain or Kay Strain)… during her lifetime or until her remarriage”. Mr Strain further directed that “the said Catherine Walsh shall have the right to occupy and have full use of the contents of any house property of which I die possessed during her lifetime or until her remarriage”. Ms Walsh was to be responsible for payment of all rates, taxes and other outgoings in respect of such house property while she occupied the same.

2. [2]
   In her affidavit sworn on 8 September 2000, Ms Walsh stated that the estate of the late Mr Strain comprised the following property:

1. (1)
   A house property of which Mr Strain was registered proprietor situated at 8 Cassia Court, Palm Beach;

2. (2)
   The contents of that house property which was jointly owned by Mr Strain and Ms Walsh; and

3. (3)
   A Ford Meteor motor vehicle the registered proprietor of which was Mr Strain and which was owned jointly by him and Ms Walsh.^[3]

Ms Walsh stated that she had not married since the date of the death of Mr Strain and had paid all rates, taxes and other outgoings in respect of the Cassia Court house which she had occupied solely since the date of Mr Strain’s death.^[4] The estate of Mr Strain did not accrue or earn any income.^[5] There were no children born of the de facto relationship of Ms Walsh and Mr Strain and the only persons having an interest in the estate of Mr Strain were Ms Walsh and Mr Strain’s sister, Ms Woods.^[6]

3. [3]
   In support of her application, Ms Walsh stated that she and Mr Strain formed a relationship in Brisbane where both parties lived and that they first lived together in a unit, pooling their joint earnings to pay rent and day to day living expenses. As such, they lived as husband and wife until Mr Strain’s death.^[7] Ms Walsh was born on 13 March 1916 and she continued to work during the relationship until she and Mr Strain moved to the Gold Coast in 1984. The parties kept a joint account with the Commonwealth Bank at Red Hill in Brisbane and as such, Mr Strain controlled the finances. Despite her protests, Mr Strain closed the joint bank account and registered the motor vehicle into his name alone. Ms Walsh stated that she chose not to fight these changes in order to keep the peace between the couple. Ms Walsh believed that the joint bank account was closed on the advice of Mr Strain’s family in Scotland. Whilst living at Palm Beach, the couple kept a cash kitty into which the parties would contribute equal amounts to pay day to day living expenses and bills including rates, insurances and electricity.^[8]

4. [4]
   Ms Walsh stated that the Cassia Court house was purchased by Mr Strain in or about 1978 as an investment and for the couple to retire to at a later date. Initially the property was rented out until Mr Strain and Ms Walsh retired to the Gold Coast and began living at Cassia Court in 1984. According to Ms Walsh, it had been indicated by Mr Strain that the property should be in his name only “in case there were any complications later as we were not married and had not made any plans to get married. In addition, because of my age it was considered easier for [Mr Strain] to obtain a loan in his name only”.^[9] The house at Cassia Court was originally financed by the Commonwealth Bank and joint funds of Mr Strain and Ms Walsh were used to pay the deposit. Later the loan was transferred to Metway Bank.^[10] Ms Walsh stated that the monies were kept in joint names up until Mr Strain travelled to Scotland in approximately 1990. After his return from Scotland, Mr Strain kept a separate bank account.^[11]

5. [5]
   Ms Walsh deposed to having contributed to not only the day to day living expenses of the couple but also to having contributed financially to paying off the loan to the Commonwealth Bank and Metway Bank through her pension and from her wages whilst working in Brisbane.^[12] She also contributed financially to the purchase of motor vehicles and furniture at least equally during the relationship.^[13]

6. [6]
   Ms Walsh stated that she had discussed with Mr Strain prior to his death the arrangements that had been made for her in his will. She was told by Mr Strain that his affairs had been put in order “to reflect the contributions made by [her] during the period of [their] relationship”.^[14] Ms Walsh stated that her only source of income is an old aged pension and that she had limited savings of approximately $1000.00.^[15] Ms Walsh continued to pay the rates and insurance on the house together with all expenses associated with the motor vehicle.^[16]

7. [7]
   A consent order was prepared by the solicitors for the executor of Mr Strain’s estate and the solicitors for Ms Walsh which purported to delete Clause 4 of Mr Strain’s will and to replace it with the following clause:

“4 In the event Kathleen Walsh or the Executor of my Estate shall agree, the property be sold on the following terms and conditions: -

1. (1)
   The property be listed for sale with Kevin Parkinson Real Estate and/or such other real estate agents as my Executor shall determine;

2. (2)
   A registered valuation be obtained to establish the market value of the property and the property be listed for sale for a listing price being the top of the range stipulated in the registered valuation with the minimum sale price being set at the bottom of the ranges stipulated in the registered valuation. The cost of the valuation is to be borne equally by my Estate and KATHLEEN STRAIN;

3. (3)
   The firm, ROBBINS WATSON SOLICITORS, be retained to attend to the conveyance of the property;

4. (4)
   Upon settlement of the sale of the property, sale proceeds be distributed as follows: -

1. (i)
   Payment of legal conveyancing costs and auctioneer expenses;

2. (ii)
   Balance sale proceeds to be held in the trust account of ROBBINS WATSON SOLICITORS;

5. (5)
   Upon the sale of the property, my Executor shall prior to distribution of the gifts pursuant to clause 4(f) and 4(g) hereof attend to the preparation and lodgement of formal taxation returns and obtain assessment/clearances of same. In the event my Estate incurs a tax liability (including any capital gain tax liability), KATHLEEN WALSH and ISOBELLE WOODS must apportion the payment of such tax from their gift pursuant to clause 4(f) and 4(g) hereof with such an apportionment to be calculated as a percentage of their gift out of the sale price of the property.

6. (6)
   In the event the sale price of the property is not less than $520,000.00: -

1. (i)
   The sum of $200,000.00 to KATHLEEN WALSH absolutely;

2. (ii)
   Balance to be bequeathed to ISOBELLE WOODS.

7. (7)
   However, in the event the sale price of the property is less than $520,000.00: -

1. (i)
   35% of net sale proceeds bequeathed to KATHLEEN WALSH absolutely;

2. (ii)
   65% of balance sale proceeds bequeathed to ISOBELLE WOODS.”

Clause 5 of Mr Strain’s will was to be deleted by consent and the life interest granted by the will in favour of Ms Walsh was to be extinguished upon any contract of sale on the property becoming unconditional. The consent order was signed on 12 August 2008 and attempts were made to file the order in the Registry. However, the Registrar declined to allow the consent order to be filed because no step had been taken in the proceeding for a period in excess of two years and the applicant had not obtained leave to proceed.

8. [8]
   On 12 January 2009 Her Honour Judge Dick SC (as she then was) made orders granting the applicant leave to proceed and directing that adequate provision be made for the proper maintenance and support of Ms Walsh from Mr Strain’s estate in terms of the proposed consent order which had been signed on 12 August 2008.

9. [9]
   The applicant, Ms Walsh, died on 8 November 2008. This fact, regrettably, was not brought to the attention of the Court prior to the orders of 12 January 2009 being made. It should have been. Mr Chalmers, the solicitor for Ms Walsh, has deposed in an affidavit filed on 26 July 2011 that he was aware that Ms Walsh had died when the matter came before Her Honour Judge Dick SC for final orders on 12 January 2009. Mr Chalmers states that he did not consider it necessary to inform either his opponent or have his Counsel inform the Court of the death of Ms Walsh as, in his view, the matter had been resolved and Ms Walsh’s rights had vested in her estate pursuant to section 66 of the Succession Act 1981 (Qld). Mr Chalmers did not inform his Counsel of the death of Ms Walsh for the same reason.^[17]

10. [10]
    In my view, the fact of Ms Walsh’s death on 8 November 2008 should have been brought to the Court’s attention for at least two reasons. Firstly, the Court retained a discretion as to the terms of the compromise and was not bound simply to rubberstamp what had been agreed by the parties. It cannot be assumed that had the Court been aware of Ms Walsh’s death, the compromised agreement would have been approved. Secondly, it appears that Rule 72(1) of the Uniform Civil Procedure Rules 1999 was not followed. That rule deals with the situation when a party dies during a proceeding and provides as follows:

“72 (1) If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies during a proceeding, a person may take any further step in the proceeding for or against the party only if –

(1) the court gives the person leave to proceed; and

(2) the person follows the court’s directions on how to proceed.”

As the Court was unaware of Ms Walsh’s death, no leave to proceed was given and no directions made as to how the matter should proceed. In those circumstances, no further step in the proceeding should have been taken. The order of Judge Dick SC was made in circumstances where the Court lacked jurisdiction to so act.

11. [11]
    The Court is empowered by Rule 667(2) of the Uniform Civil Procedure Rules 1999 to set aside an order at any time if the order was made in the absence of a party. In this case, there can be no doubt that the order was made in the absence of Ms Walsh who had died prior to the order being made by Judge Dick SC. In my view, the order made by Her Honour on 12 January 2009 should be set aside notwithstanding that the executor of Mr Strain’s estate has not taken a step in the proceeding for many years. Indeed, the proceedings generally seem to have proceeded at a very slow pace since the original application for family provision under The Succession Act was originally filed in June 1998. Delay cannot alter the fact that the Court was not empowered to exercise its judicial discretion to approve the compromise because of the death of the applicant prior to the order being made. Leave to proceed pursuant to Rule 389 of the Uniform Civil Procedure Rules 1999 should be granted to the executor of Mr Strain’s estate with respect to the application to set aside the order of Judge Dick SC.

12. [12]
    It is not clear on the authorities as to what should happen to any reassessment of varying the provision made in the family provision application. Counsel for Ms Walsh (or more accurately for the executrix of her estate – Shirley Kathleen Stapleton as executrix of the estate of the late Kathleen Walsh having been substituted as the applicant in this proceeding) submits that the cause of action was compromised on 21 April 2008 and that it is irrelevant that orders were made after the date of Ms Walsh’s death. Furthermore, it was submitted that once the action had been compromised, a contract existed between the applicant and the estate of Mr Strain and upon Ms Walsh’s death her rights under the contract of compromise passed to her executrix. The difficulty with this submission is that it was the intention of the parties that there be no contract of compromise until the Court had sanctioned it. This, as I have held, did not occur.

13. [13]
    Alternatively, it was submitted that the proceeding was further compromised by the executor of Mr Strain’s estate “confirming it would comply with the Terms of Settlement once probate was obtained and provided to the Respondent solicitors”. However, the letter from Robbins Watson Solicitors to Mr Chalmers stated no more than “upon provision of certified copy of probate of the Will our client has instructed it will then attend to final distribution of estate monies”. There is no reference to any compliance with the Terms of Settlement in the document^[18] and I am not persuaded that there has been any such compromise as alleged.

14. [14]
    A further submission of Counsel for Ms Walsh was that upon her death her cause of action vested in her estate pursuant to section 66 of The Succession Act 1981. That section provides as follows:

“(1) Subject to the provisions of this section and with the exception of causes of action for defamation or seduction, on the death of any person after the 15 October 1940 all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate.

(2)  Where a cause of action survives pursuant to subsection (1) for the benefit of the estate of a deceased person, the damages recoverable in any action brought –

(1) shall not include damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life; and

(2) shall not include exemplary damages; and

(3) in the case of a breach of promise to marry – shall be limited to damages in respect of such damages as flow from the breach of promise to marry; and

(4) where the death has been caused by the act or omission which gives rise to the cause of action – shall be calculated without reference to –

(i) loss or gain to the estate consequent upon the death save that a sum in respect of funeral expenses may be included; or

(ii) future probable earnings of the deceased had the deceased survived.

(2A)  Despite subsection 2(a) damages for pain and suffering, for any bodily or mental harm or for curtailment of expectation of life, may be recovered if –

(a) the cause of action related to personal injury resulting from a dust-related condition; and

(b) the deceased person commenced the proceeding in relation to the cause of action before the deceased person died; and

(c) the deceased person died as a result of the dust-related condition or the dust-related condition was a contributing factor to the deceased person’s death.

(2B) To remove any doubt, it is declared that personal injury resulting from a dust-related condition does not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke.

(3)  Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this section, to have been subsisting against that person before his or her death such cause of action in respect of that act or omission as would have subsisted if that person had died after the damage was suffered.

(4)  The rights conferred by this section for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the provisions of the Supreme Court Act 1995, part 4 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under those Acts as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).”

15. [15]
    In Lee’s Manual of Queensland Succession Law^[19] the following passage appears:

“Effect of death of applicant

[13.320] Since the point of seeking an order is that the applicant is personally in need of maintenance and support, the death of the applicant necessarily terminates the claim. There is some confusion about the exact effect of the applicant’s death but it is probably best expressed by saying that the court has no jurisdiction to make an award in respect of a deceased applicant, since the applicant can no longer be maintained. The right of application is not a right of property and does not, therefore, devolve to the personal representatives. However, the court may, apparently, order debts actually incurred by the applicant before death to be paid.

It appears, too, that the right of an applicant does not devolve upon the trustee in bankruptcy if he or she becomes bankrupt, although an order may be made in favour of the applicant, despite the bankruptcy.”^[20]

16. [16]
    In Underwood v Underwood^[21] Jones J was considering a case in which one successful applicant died after trial but before final orders were made. His Honour stated that:

“The difference as to the nature of the statutory right and whether it was transmissible were considered by the authors in De Groot & Nichol “Family Provision in Australia” 3rd Ed. who then concluded: -

 “The true position seems to be that, while the right is not a property right, it is not a personal right either, notwithstanding the statements to the contrary in Coffee v Bennett, Luxton v Luxton and McEvoy v the Public Trustee. We agree with O'Halloran JA in Barker v Westminster Trust Co that it is an equitable right vested by statute. As such, the court is concerned with the enforcement of a statutory duty which does devolve to a personal representative, provided that the cause of action was subsisting at the date of death. It would seem to be essential that the claim has been filed in court for this to be the case.”

In King v Condon (supra) de Jersey CJ considered the point and concluded that “the applicable cause of action arose on the stepfather’s death, the claimant asserted it in her filed application, and upon her death, it survived for the (potential) benefit of her estate.

I respectfully adopt the approach identified by the authors of De Groot and Nichol and by Chief Justice de Jersey and hold that Peta’s claim did not abate on her death.”

17. [17]
    A case which bears some similarity to the present problem but which was apparently not brought to the attention of Jones J in Underwood is Groser v Equity Trustees.^[22] The parties in Groser had entered into a conditional settlement of an Application which was subject to the assent of the Attorney-General, and the Court making the proposed consent orders. The issue of the assent of the Attorney-General is relevant only to the facts of that case. The applicant died prior to the Court making orders. Habersberger J was asked to determine whether the Court should make orders in terms of the consent which the parties had agreed. His Honour noted that in considering the proposed consent orders, the Court was not acting merely as a rubberstamp and that it remained the duty of the judge hearing the case to consider whether in all the circumstances, the orders sought by the parties were appropriate. His Honour categorised the case as one where the plaintiff had no need of provision because she had died and held that the Court “could not ignore the fact that [the applicant] had died”.^[23]

18. [18]
    In Groser it was noted that the cause of action survived the applicant’s death only in limited circumstances. Habersberger J stated that:

“the limited exception is that if there be proof that by reason of the lack of maintenance and support the claimant has incurred debts in the period between the death of the testator and the death of the claimant the Court has jurisdiction to make an order in favour of the estate of the claimant to the extent of those debts. However, there was no evidence of Mrs Groser incurring any such debts in the past. Her concerns had been about future expenses not past debts. The existence of this limited excepted was recognised by Nettle J (as he then was) in Read v Nicolls [2004] VSC 66, [43] where His Honour stated that “upon the evidence therefore, this is a case where the claimant died after maintaining herself without running into debt, even if perhaps on a scale less generous than she was entitled to require or expect, and the Court ought not to make an order of which the effect would be merely to swell the estate to pass under her will.” The approach of Nettle J was made clear by his approval of the following passage from the judgment of Long Innes CJ in Equitable in Re Shannon (1935) SR NSW 576, 518: “the jurisdiction of the Court is based on the [statute] and is limited to making such provision for the “maintenance, education and advancement” of the persons entitled to the benefit of the Act as the Court thinks fit. The claimant having died before any order could be made, it is obvious that no provision could be properly made for her future maintenance, education or advancement; nor do I think that in a case where the claimant has died after having in fact maintained himself or herself without running into debt, even though on a scale less generous than he or she was entitled to require or expect, the Court ought to make an order aft the claimant’s death which would merely have the effect of swelling the estate which would pass under the claimant’s will or to his or her next-of-kin if in testate, and of benefiting persons who are not within the scope of the Act. In the present case, however, the evidence establishes that the widow died indebted in respect of board and residence to the extent of £23.8s 9d;… I think that an order should be made to that extent, notwithstanding that indirectly her legatee may be benefited to that extent.””

19. [19]
    It was accepted by Habersberger J in Groser that the agreement to compromise the application had been frustrated by the death of the applicant because it was an agreement reached in a family provision application the essence of which was to provide maintenance and support for the applicant which was no longer necessary.

20. [20]
    In King & Anor v Condon & Anor^[24] de Jersey CJ considered whether an order for further provision may only be made in favour of a living applicant. His Honour noted that, in that case, Counsel’s research suggested that the point had not yet been determined by a court in this jurisdiction. His Honour stated that his conclusion accords with the tentative view of the authors of de Groot and Nickel: Family Provision in Australia^[25]:

“Although it is not possible to express a firm opinion on the result of an application where the applicant dies before the hearing, the better view would seem to be that the cause of action does survive because of the relevant surviving legislation.”

21. [21]
    His Honour continued:

“One rhetorically asks, why should not an estate be compensated, as an example, for expense incurred prior to an indigent applicant’s death, to maintain the applicant at an adequate level, which may have involved borrowings, where a sufficiently well-off testator should have recognised the need and satisfied it. In that sort of case, why should the applicant’s beneficiaries be left to shoulder the burden of the neglect of the testator?”^[26]

22. [22]
    I accept the submission of Counsel for the executor of the estate of Mr Strain that the decision in King is authority only for the proposition that the cause of action, if filed, survives the death of the applicant. It is not authority for the proposition that the estate of the deceased applicant receives what the applicant would have received. This seems to have been expressly adverted to by the Chief Justice when he held that the application “survived for the (potential) benefit of her estate”.^[27]

23. [23]
    In Hills v Chalk & Anor (as executors of the estate of Chalk (deceased))^[28] Keane JA observed:

“It is not irrevelant to note here, as well, that it is well-settled that the Act is not intended to facilitate improvements in the lots of the dependants of elderly persons who seek further provision. In White v Barron, Mason J said:

“Circumstances are infinite in their variety and orders must be moulded to the circumstances of the particular case in order to ensure maintenance of the widow, where that is possible. A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy.””^[29]

24. [24]
    My attention has been drawn by Counsel for the executrix of Ms Walsh’s estate to the decision of the Supreme Court of the Northern Territory in Albany v Albany.^[30] That case involved an action for specific performance of the alleged terms of settlement of a contract following a mediation between the parties. The plaintiff claimed that, as a result of the mediation, the plaintiff entered into a binding agreement with the first defendant to settle his claim in the consolidated action. It was common ground that no agreement had been reached with any of the other parties to the consolidated action. The plaintiff sought specific performance of that agreement. The defendants denied that any binding agreement had been reached. Mildren J observed:

“I do not consider the fact that Public Trustee was not a party to the agreement to be fatal to its enforceability for the reasons discussed in paras [53]-[54] above. In my opinion, the Deed of Settlement could be altered effectively by an oral agreement affecting intended parties, even if not all parties to the Deed were parties to the agreement. The oral agreement would only bind the parties to it. Although that agreement, by itself would not have released the estate, the Court has power to make an order conditional upon the applicant waiving claims against the estate as part of approval of a compromise if the Court sees fit to do so. The Court also has power to order [that] an applicant received the entire available interest in particular assets of an estate, so the fact that the agreement relates to specific blocks of land is not necessarily fatal.”^[31]

25. [25]
    Counsel for the executor of Mr Strain’s estate has urged the Court not to send the matter away for any further proceedings and that the matter ought to be concluded at this stage. It was submitted that the terms of the compromise allowed provision by way of a right to reside in the Cassia Court property, and that if both parties subsequently agreed, for the property to be sold and the proceeds distributed in agreed figures or percentages, depending on the selling price. In fact, 35% of the proceeds of sale were to be distributed. It was further submitted that Ms Walsh had the benefit of that provision in specie during the time that the litigation continued on foot. That, it was submitted, precludes any argument that “past obligations” were not provided by the estate and which should now be brought into account.

26. [26]
    Counsel for the executrix of the estate of Ms Walsh, at least in his written submissions of 17 June 2011,^[32] has submitted that the appropriate order in the circumstances is not that the application by Ms Walsh be struck out, but that the executrix of her estate be substituted as the applicant and that the matter proceed to hearing as to the quantum of award Ms Walsh would have been entitled to in respect of the period between the date of the death of Mr Strain in 1997 and the date of her death in 2008.

27. [27]
    It is helpful to return to the observations by de Groot and Nickel^[33] that:

(i) The precise status of an application where the Applicant dies after the issue of the originating process but before the hearing has not been finally determined. There are three schools of thought as to the outcome of such an application:

(1) That the cause of action dies with the death of the Applicant;

(2) That the cause of action cannot be used to benefit the estate of the deceased Applicant, but that it can be used to meet any debts of the Applicant and costs;

(3) That the cause of action survives because of the usual survival legislation.

Although it is not possible to express a firm opinion on the result of an application where the applicant dies before the hearing, the better view would seem to be that the cause of action does survive because of the relevant survival legislation.”

Unfortunately, de Groot and Nickel do not discuss the situation where a compromise is sought to be achieved and the applicant dies before the compromise is put into effect as in the present situation.

28. [28]
    In my view, it is the second of the three possible outcomes identified by de Groot and Nickel which should apply in the circumstances of this case. Thus, if there be any proof that by reason of the lack of proper maintenance and support, Ms Walsh had incurred debts in the period between the date of death of Mr Strain and the date of death of herself, the Court has jurisdiction to make an order in favour of the estate of Ms Walsh to the extent of those debts. This outcome recognises that the cause of action has survived the death of Ms Walsh but also takes into account the observations of Keane JA in Hills v Chalk.^[34] I am aware that such an outcome may result in further legal costs diminishing the value of Mr Strain’s estate and I would urge the parties to do everything in their power to effectively compromise this action without any further proceedings being commenced.

29. [29]
    I make the following orders:

1. With respect to the application dated 20 June 2011, filed on behalf of the applicant Ms Walsh, I order that Shirley Kathleen Stapleton as executrix of the estate of the late Kathleen Walsh be substituted as the applicant in this proceeding and that there be no order as to costs.

2. With respect to the application dated 21 November 2008, filed on behalf of the applicant Ms Walsh, I order that the application be dismissed and that there be no order as to costs.

3. With respect to the application dated 19 May 2011, filed on behalf of the respondent executor for the estate of David Strain, I order that:

1. (1)
   leave to proceed be granted;

2. (2)
   the order of her Honour Judge Dick SC dated 12 January 2009 be set aside;

4. (3)
   the matter proceed to hearing before this Court as to the quantum of award (if any) Ms Walsh would have been entitled to in respect of the period between the date of Mr Strain’s death, 17 October 1997, and the date of the death of Ms Walsh, 8 November 2008; and

5. (4)
   the costs of and incidental to the application as between Solicitor and own client be assessed and paid out of the estate of David Strain.