Tesch v Knight & Anor[2014] QDC 14

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application (by the respondent to a claim by the applicant in proceedings for further and better provision out of an estate) for an order that the proceedings be dismissed for want of the prosecution.  The respondent opposes such an order and submits that she should, pursuant to r. 389(2) of the Uniform Civil Procedure Rules 1999 (Qld), be given leave to proceed with her action. 

Background

2. [2]
   I shall refer to the applicant in the proceedings, Ms Tesch, as the applicant, and to Ms Knight, who was the original applicant before me but the respondent in the proceedings, as the respondent.  The applicant commenced proceedings in November 2006 following the death of her father on the 15 February 2006.
3. [3]
   Under his Will, the applicant’s father left the whole of his estate to the respondent who was, it seems, his de-facto partner for some 22 years.  The applicant was born in about 1971 and so would have been about 13 years old when they commenced that relationship.  The applicant contests that the respondent and her father were in a de-facto relationship.  But beside the evidence of the respondent, the fact of that relationship is also attested to by Ronald Johns who, in his affidavit of 12 September 2008, describes himself as one of the deceased’s closest friends for 20 years prior to his death.  The Will itself probably also lends support to the evidence of that relationship. 
4. [4]
   Indeed, in the affidavit material, the applicant says that she accepts that the respondent lived at the property at Brownhill Street, Logan, with the deceased for about 22 years but says she does not know whether she and the respondent had a sexual relationship.  The applicant told me that she was approximately 13 years of age went the relationship between her father and the respondent appeared to have commenced and that after she first met her father when she was about 18, she had an on-again, off-again relationship with him.  It appears she did not know the respondent and had not met her until shortly before her father’s death.  It also appears, from what she said, that her father provided her with no financial support during her lifetime and, I assume, because of the nature of their relationship, it is not asserted that she made herself any positive contribution to the acquisition of the relevant house property. 
5. [5]
   In any case, after commencing proceedings, the action appears to have progressed at a reasonable pace, but with some periodic delay up until about 2009.  In about November 2007, one year after its commencement, orders were made for the disposition of the matter.  Paragraph 7 of that order provided inter alia for the holding of a conference, either in person or by telephone, on or before 30 June 2008 to attempt to negotiate a compromise.  The orders then provided for the filing of the request for trial date and ancillary orders.  Despite that order, the settlement conference did not, in fact, take place.  No step has been taken in the action since an affidavit of the applicant was filed on 11 December 2008. It is thus over five years since the last step in the matter was taken. 
6. [6]
   The respondent was not appointed Executor under the Will, but the named Executor (the deceased’s brother Larry Myers) renounced his right to probate and execution of the Will on 11 July 2006. The respondent was granted letters of administration of the Will on the 8 September 2008.  The estate of the deceased was a relatively small one, essentially comprising a house at Brownhill Street, Logan and a small number of other items.  The respondent’s affidavit, sworn on 19 September 2008, discloses that the value of the assets was some $264,724.76 (including $255,000, the estimated value of the property at Brownhill Street at that time) and of liabilities of $23,250.46. 
7. [7]
   The respondent is an aged pensioner and appears to have no significant assets other than her interest in the deceased’s estate.  The respondent estimated at the time of her affidavit in September 2008 that the legal costs of the estate were some $15,000.  In her most recent affidavit of 22 November 2013, the respondent sets out correspondence between her solicitor and the applicant’s solicitor between December 2006 and April 2009.  It is clear from that correspondence that there had been some delay in the applicant’s prosecution of her claim during 2007 and 2008, but this was not inordinate and, in my view, of no great significance for the purpose of the present application. 
8. [8]
   More particularly, she says in the affidavit: 

   1. (i)
      That during the period of the proceedings and, therefore, obviously, over the five years since the last step in the action was taken, she has suffered significant health issues. In particular, she says she suffers anxiety associated with the fact that this action remains on foot; 
   2. (ii)
      That due to the uncertainty over the outcome of the case, and in her financial circumstances, she has not incurred the costs of maintaining the property which has, as a result, become dilapidated as set out in paragraph 12 of her affidavit filed on 10 December 2013; and
   3. (iii)
      That she has been financially prejudiced by the fact of the action being undetermined.
9. [9]
   She is an old aged pensioner, but as the house is not in her name, has been unable to claim the pensioner discount on rates amounting to a loss of some $3,640.  In September 2012, she moved to live with her son’s family due to her ill health and the condition of the Brownhill Street property.  She has incurred debts of $11,500 to her three sons to meet ongoing legal costs of the estate and other expenses. 
10. [10]
    In an affidavit sworn on 29 January 2014, the applicant sets out the history of the matter from 2006 up until April 2009.  She gives no explanation for the delay thereafter.  Before me, she indicated she could not afford to pay for legal representation at a trial.  However, she was not able to indicate, given that fact, why she did not advance the matter to trial where she could have represented herself.
11. [11]
    Essentially, she allowed the matter to lie in abeyance and did nothing to comply with her obligations under r. 5(3) of the UCPR to proceed with the matter expeditiously.  In support of her position, the applicant says at paragraph 4 of her affidavit: 

    1. (i)
       That the house is currently vacant and unoccupied and in a bad state of repair; 
    2. (ii)
       That the matter may be able to resolved on the basis that the respondent has a life tenancy in the property;  and
    3. (iii)
       It would be unreasonable to deny her, the daughter of the deceased, of an interest in the property in circumstances where she was given no assistance by the deceased during her lifetime, at least of a financial nature, and certainly, any emotional support he gave her would have been limited.

The Application

12. [12]
    Counsel for the respondent referred to both r. 5 UCPR, part of which I have already referred to, and to r. 280 and r. 389(2) of the UCPR.  He also referred to Tyler v Custom Credit Corporation Limited^[1] where Atkinson J listed the factors to be taken into account when determining whether the interests of justice required a proceeding to be dismissed or leave to proceed be granted.  That decision was subsequently applied by Daubney J in Hollyander Pty Ltd v Mike O'Regan & Associates Pty Ltd & Anor^[2]. 
13. [13]
    In my view, it is apparent from these reasons and from the material on which the parties rely:

    1. (i)
       That the events alleged in the proceedings occurred primarily up to the deceased’s death in February 2006 and that there was no relevant delay before proceedings were instituted in November 2006; and
    2. (ii)
       That the applicant has only limited prospects of success with her action.  In saying that I am conscious that the respondent’s claim to be the deceased’s de-facto partner is strongly supported by the evidence. I was referred also to the decision of Collett & Anor v Knox & Anor^[3] where McMeekin J said:

‘A finding that Mr Collett was the spouse of the deceased for the purposes of the legislation is of significant importance to this issue.  I envisage that it would be a very rare case where the first obligation of a spouse of 20 to 30 years is not to ensure that their partner is provided with a home, if able to do so.  I note Powell J’s dictum in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70 to the effect that as a “broad general rule” the duty of a testator to a widow is “to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseeable contingencies”.  While I’m dealing with a putative widower, I see no reason why the “broad general rule” should not apply here.’; and 

3. (iii)
   That the estate is a small one, essentially comprising only the dwelling of Brownhill Street and its upkeep has been significantly adversely affected by the applicant’s very significant delay in prosecution of her claim; and 
4. (iv)
   That the applicant’s delay, in particular since the last step taken in December 2008, has been relatively extreme and is unexplained in the sense that there is no reasonable explanation for the delay; and
5. (v)
   The applicant’s conduct of the matter involved some disobedience of court orders in that the correspondence shows that the respondent’s solicitor threatened the applicant’s solicitors on a number of occasions prior to December 2008 with bringing applications if necessary,  affidavits were not filed as required by the directions order.  Ultimately, however, as I have said, I do not think delay prior to the last step in the action is of significant relevance; and
6. (vi)
   The delay since December 2008 it is not said to be due to the applicant’s solicitors but rather due to the applicant’s own decision, or indecision, in not bringing this matter to trial.  Insofar as the applicant’s impecuniosity has meant she was not able to engage lawyers for a trial,  it is not suggested the respondent has contributed to that impecuniosity, and there is no explanation as to why the applicant was not able to act for herself at any trial.  I note she also indicated to me that she had made no application for legal aid, although in my own experience it is probably unlikely that she would have been successful with any such application.  It appears she remains in much the same position as she has been since December 2008, that is, having to conduct the trial herself.  The matter is essentially in the position where a trial could have been held at any time since December 2008 and of course could be now held; and
7. (vii)
   Importantly, the delay has resulted, in my view, in significant prejudice to the respondent.  Her health has been adversely affected owing to the understandable anxiety associated with having this matter hanging over her.  The property has become run down due to her understandable reluctance to spend money on its upkeep in circumstances where there was no certainty she would benefit from its upkeep, at least to the full extent of any expenditure by her on the property.  She has incurred financial expenses as set out in the material. 
8. (viii)
   It is not suggested, however, that the delay will now mean that a fair trial cannot be held in the sense that evidence is lost, although I note that the respondent has a history of cardiac failure in recent times, and due to her age and health her capacity to give evidence and to withstand the emotional turmoil of a trial might be affected.  Of course, courts are always cognisant of the fact that with significant delay the accuracy of evidence that people give is also adversely affected by the passage of time.

14. [14]
    In all of the circumstances, it is my view that the justice of the case requires that the applicant’s action be struck out for want of prosecution.  I appreciate that this means that the claim of a daughter of the deceased who it seems did not contribute to her upkeep, either emotionally or financially, when she was young and he was alive, to a share of his estate is lost.  The case presents as a difficult exercise in discretion because of that factor, but in my view the conclusion I have come to is justified.  I think the demands of justice require that a party bringing proceedings do so with reasonable diligence.  In my view, the significant prejudice to the respondent’s health and the decline in the upkeep of the property associated with delay, which must inevitably have a negative effect upon the present worth of the property and so the benefit to the respondent from her entitlement under the Will, even if the applicant were partially successful with her claim, would be affected.  In my view, my assessment of the applicant’s limited prospects of success, or at least the inevitably that the respondent herself would be significantly recognised by any award that a court might make, is also relevant, as is the fact that there is no reasonable explanation for the applicant’s delay.

Orders

15. [15]
    In the circumstances, I order:

    1. (i)
       That the originating application by the applicant Tania Maree Tesch filed 9 November 2006 be dismissed for want of prosecution pursuant to r. 5 and r. 280 of UCPR; and
    2. (ii)
       That the applicant Tania Maree Tesch pay the respondent’s costs of the proceedings to be agreed, or failing to be agreed, assessed on a standard basis.