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Fiji Law Reports |
COURT OF APPEAL OF FIJI ISLANDS
JULIE DOYLE
v
PHYLLIS LATOUR DOYLE &
TRUSTEE CORPORATION LIMITED
TRUSTEE CORPORATION LIMITED
v
PHYLLIS LATOUR DOYLE
[COURT OF APPEAL, 1999 (Tikaram P, Barker JA) 12 November]
Civil Jurisdiction
Family law- divorce- ancillary relief- whether maintenance order capable of binding the estate of a deceased party- whether a prior deed of settlement remains valid after the making of a statutory maintenance order- Matrimonial Causes Act (Cap 51) Sections 87 (1 and) and 101 (2).
A former wife sought lea enforce a maintenance order made upon the granting of the the decree nisi notwithstanding the death of the
husband. She also soughtecover arrears of maintenantenance and a lump sum. On appeal against the grant of leave and the award of
a lump sum the Court of Appeal HELD: (i) the statutory maintenance order could, with the leave of the Court bind the husband’s
estate (ii) the provision for payment of maintenance in a deed of settlement agreed before the grant of the decree nisi was not extinguished
by the statutory maintenance order (iii) the existence of such a provision is relevant in deciding whether to grant leave but that
(iv) in the circumstances of the case the leave would be upheld but the award of a lump sum would be set aside.
Casted:
Brooks rns urns Philp Trustee Co. Ltd. [1969] HCA 4; (1969), 121 C.21 C.L.R. 432.
Hyman v. Hyman [1929] A.C. 601
LaLake v. Quinton
South Puth Pacific Recordings v. Yates (ABU 3- FCA 97/483) (a) l60; leave torenfthee aintmaintenance order made in the decree nisi, leave being required by s.101(2) of the Act. #160;;rearsaintenance at $360 per month onth from the date of death of the deceaseceased.
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M.tel for Pfor Phyllis Latour
 
Tappeals have been been heard by a Court of 2 Judges pursuanrsuant to s.6(2) of the br>The appellant, Julyle (yle (‘the widow’)
is the widow of the deceased. She is the sole beneficiary in his estate. An affidavit from the Managing Director of the appel Trustee
Corporation Limited (‘the Trustee’) re;) revealed that Burns Philp had been placed in liquidation in New South Wales
on 3 December 1990. Burns Philp, whilst in liquidation, changed its name to BPTC Limited (in liquidation) (‘BPTC’) on
30th July 1991. BPTCdeed dated 1ted 10 July 1992, appointed the Trustee as trustee of a number of estates and trusts in Fiji previously
administered by BPTC, including the estate of the deceased.
There wa filed in the Hthe High Court, as there should have been, an affidavit from the Trustee giving an account of its Burns Philp’s
or BPTC’s stewardshiphe estate of the deceased and of the present state of the ethe estate’s assets, liabilities and
income. In particular, the Trustee should have revealed when the executorship had ceased. Given that the widow was the only beneficiary,
one would normally have expected that, between May 1990 when probate was granted and January 1996 when the former wife issued proceedings,
any prudent executor would have gathered in the assets and transferred them to the beneficiary in her own right, however making some
provision to cover any potential claim. However, we infer, without opposition from counsel, from the fact that BPTC transferred to
the Trustee its trusteeship of the deceased’s estate, that its executorship had terminated at least by the date of the deed
of appointment of new Trustee. Counsel agreed that, although BPTC had been joined as a party, if the claim by the former wife were
to succeed, the Trustee would be the party liable, subject to any right of recovery from the widow and/or BPTC.
Turt should also have bave been informed as to what provision, if any, had been made by the Trustee or its predecessor to cover ttential
claim of the former wife which must have been known to BPTC and the Trustee. We were were informed from the Bar that the statutory
procedure whereby a trustee can require a claimant to bring a claim or else forfeit his or her rights, had not been utilised.
Letters exhibited to the former wife’s affidavit indicate that the Trustee was still involved in the management of the estate
in 1994-5, and acted as a conduit between the widow’s solicitors in Fiji and former wife’s New Zealand and later Fiji
solicitors. The former wife’s solicitors had been justifiably anxious to obtain replies to their letters. Reasons for the apparent
delays in replying by the widow and/or her solicitors were not explained to the Court.
The fowife and the dece deceased married in 1948. By 4th June 1975, thd been separatparated for some time. After separation, the sed
stayed in Fiji and the former wife went to New Zealand. Each had issued divorce proceedoceedings against the other: he in Fiji, s
New Zealand. On that date,date, the deceased and the former wife signed a Deed of Settlement of their matrimonial affairs. It is
not necessary to set out in full this deed (which complied with all legal requirements for a deed). The deceased agreed to transfer
to the former wife a half-share in a property in New Zealand and to pay $F70,000 to the wife from the disposition of a company. Both
agreed to withdraw their divorce petitions (with the deceased paying the costs). After the withdrawal of both divorce petitions,
the former wife was to file a fresh petition in the Magistrates’ Court in Fiji on the grounds of the deceased’s adultery.
The ret portion of the the deed is the following provision: “The husband shall pay the sum of $F360 (three hundred and sixty
dollars) per month to the wife for the rest of her life or until her re-marriage.” The expression ‘the husband’
in the deed included his executors, administrators and assigns.
The wife duly commenced fresh divorce proceedings in Fiji. On 20th February 1970, a decrsi wasi was pronounced which included the
following provisi#8220;The Court doth further order that the Respondent (i.e. the deceased) pay maintenance ance to the Petitioner
(‘the former #8217;) at the rate of $360 $360 (three hundred and sixty dollars) per month with effect from 22nd January 1976”.
The decree nisi, which was made absolute on 21st May 1976, contained no encerence to the Deed of Settlement made on 4th June 1Nor
was thny sanctionctioning by the Court of the Deed of Settlement as would have been posn possible under s.87(1)(k) of the
Theased paidmaintenancenance until his death. As at the time of the hearing in the High CourtCourt, the Trustee and the widow had
not pnythirther. We were informed from the Bar that, after fter the judgment in the High Court, the Tthe Trustee had paid $20,000
on account of the arrears in an effort to gain a stay of Byrne J’s judgment.
The former wiged about bout 72 at the date of the hearing in the High Court, sought an additional $70,000 as a lump sum in settlement
of her future maintenance entitlement uthe deed and/or the decree. She alleged, without any medicaedical or actuarial evidence, that
this figure represented a fair assessment of the future amount which could be due to her, given her then good health. She detailed
her financial and personal circumstances which were not good. These circumstances are irrelevant to the interpretation question as
indeed are the circumstances of the widow which (we were informed from the Bar) are not good either. The circumstances of the parties
would of course have been relevant to any application to the Court to vary or cancel the maintenance order contained in the decree
nisi. However, none was ever made.
We were informed that that the widow has issued proceedings against the Trustee alleging deficiencies in the administration of the
estate by BPTC and/or the Trustee. The Trustee may have a claim for indemnity against BPTC with a possible recovery, from a fund
of $50,000 held by the Government of Fiji as a statutory deposit paid by Burns Philp upon its registration in Fiji as a trustee corporation.
Course of Prings in s in High Court
The former wife’s proceedings were intituled with reference to the Act (sections 87 and 101), to the divorce proceedings of
1976 and to the Court7;s int jurisdiction. ion. She sought in her first statement of claim against the Trustee:
&#br>
(d) c (a) ;d The Judg Judge erre erred in awarding lump sum future maintenance at all or atfigur$60,000 &# (b) n thet rderorder for indemnidemnity costs was unjustified. &# (c)p>(c) ; he present sent sent valt valuevalue of t of the behe benefit paid now instead of monthly ove peri her expectancy & (a) ent should have bntered aged against BPTC as executor and not against the Trustd & ( (b)& the former̵laie thul houl have been formulatmulated uned under tder the prhe proceduocedural umbrella of a claim
under the Act but should have had a simple claim itractummargment proceedings. (60;
its rights (if any) demnitemnity against BPTC and (c) &ـ thtsany) to t to t to trace race and recover against the widow any money wrongfully paid to her. #16> 2.&#>2. &160;     Does the mnance order cont contained in the Decree Nisi survive the death of Patrick Joyce Doyle? “Section)(h) )(h) of the Matrimonial Causes Act provides that the Court ercexercising its poweder trt of the Act dealing with ancillary relief may dmay do any or all of a number
of things, igs, including making a permanent order, anr pending the disposal of proceedings or an order for a fixa fixed term or
for a life or during joint lives or until further order. One of the powers which the court can exercise under that part of the Act
is that referred to in s.84(1), namely, to make such order it thinks proper in proceedings with respect to he maintenance of a party
to a marriage. This language is appropriate to an order which extends beyond the life of the spouse against whom the order is made,
but a very real question arises whether upon the true construction of the Act an order which in its terms take effect beyond the
life of the spouse against whom it is made can be enforced under the provisions of the Act or has any efficacy as an order made under
the Act: see Johnston v. Krakowu>> . It is strongly arguablt ahat a majority of the Court, which of course would bind this Court, held as part
of the&ratio decidendi of the case thy order made made under the Matrimonial Causes Act is purelsonal to the partiearties, and, whatever its terms, comes to an effectual end upon the deatone of the parties. The dece decision
was considered at some length by this Court in Felton It follows th is iris irrelevant in these proceedings whether or not the order of the court in question has been validly made, in
the sense that there is no legal error involved in making it. Having been mit could only be attacked bked by the deceased in his
lifetime by appeal, and he could have applied for variation, but he could never have sought any orders from another division of the
Supreme Court on the basis that the order made was ultra vires. In my opinion the executor is in no better position than the deceased.
He is in a worse position in that he cannot apply for a variation of the order nor can he appeal. In any proceedings brought under
s.104(2) by Helene Howes, he may be able to set up these matters as providing a discretionary basis for the refusal of the Court
to allow the order to be enforced. As to what matter can be raised as a proper basis for the discretion under s.104(2) I express
no opinion.” < & 60; &ـ&ment fent for aror aror arrearsrears of $ of $25,9225,920 against Trustee affirmed. 4. &
; dgme6dgment for $60,000 for future maintenance quashed. <#160;
r0; Ondy cosashed >i>6.6.  ـ 1r0; TrustTrustee to pay tpay to $1,250 costs plus disburts asd by hief Regisfor Hourt trial. < i> 7. &##16;& Trustees to pay $1,000 plu0 plus disbursements as fixed by Chief Registrar to former wife as costs on this
appeal.
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In his reserved judgment, delivered after three appearances before him, and the filing of written submissions, Byrne J. granted application
(a) above. He also entered judgment for the arrears (then $25,260) and awarded the former wife a further $60,000 instead of the $70,000
claimed for future maintenance. Judgment for these amounts was entered against the Trustee only. The Judge also ordered that indemnity
costs be paid by the Trustee to the former wife on the basis that the widow had more detailed submissions disputing the former wife’s
right to future maintenance and her obvious need.
The widow’s basic appeal is against the Judge’s finding that the former wife’s right to continuing maintenance depended
on the Deed oflement, that the deed was valid and enforceable and that it had not been extinguished on thon the death of the deceased.
She further submitted there was nothing in the decree nisi which authorised maintenance to be paid to the former wife after the death
of the deceased since liability to pay was extinguished upon the death of the deceased. In other words, the submission was that the
decree nisi superseded the deed.
The Trustee supporte wihe widow in her appeal.
At tmmencement of the hthe hearing before us, counsel for the former wife very properly conceded that the award for a lump sum for
future maintenance could not stan the Deed is in still force, it confers only a right to pero periodic maintenance. There can be
no liability on the estate of the deceased to pay any lump sum for future maintenance. This Court also indicated to counsel that
it could not see any justification for an award of costs against the appellant on an indemnity basis. All three counsel agreed with
the Court’s view.
We note that there was no warrant for the Judge’s method of calculation of a lump sum. It is any plaintiff’s duty to prove
quantum as well as liability and this plaintiff had clearly failed to discharge that onus in respect of the future maintenance. As
elementary requirements, there would have had to be some evidence of
Twould then havn have to e to be a be a contingency deduction by way of percepercentagentage to c to cope with the possibility of
the former wife’s premature death or sooner re-marriage.
Thstee had two independependent further grounds of appeal i.e.
As to ground (a), (a), (a), we h we have already indicated our view that BPTC was functus as eor utcause it had thad transferred its trusteeship to the Trustee as part of a sale of its trusteeship business as a going conceounseeed
that if there be any liability on the estate, then the proper party to sufferuffer judg judgment being entered against it is the
Trustee, subject to
After some dime discussion, counsel agreed iting the following matters required resolution by they the Cour Court.
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At common law, an agreement to pay maintenance for the life of the wife which in terms bound the husband’s executors is not
invalid. See Kirk ve [1937] 937] A.C.491. Theree a separation agreemen the then common form, was, was expressed to bind the husband’s estate. The
agreement provided for the payment of “a cleekly f ^2 during ring her life for the maintenance and supp support of herself
subject nevertheless to the provisions and conditions hereinafter contained.” The wife had agreed to what where then usual
covenants, such as indemnifying the husband against any debts which she might contract and continuing to lead a chaste life. The
House of Lords overruled the Court of Appeal which had held by a majority that, because the whole basis of the agreement was that
the parties live apart, after the husband’s death they could no longer continue to live apart. Therefore, the whole basis of
the contract had disappeared. The House of Lords rejected this view and held that the clear, simple words of the contract meant what
they said. The husband’s estate had to pay the maintenance to the wife.
The Fiji Matrimonial Causes Act was modelled on the alian Aian Act of the same name. It provides that orders, intia, for al maanceaance may be made made at that the granting of a decree. Section 87 of the Act sets out a whole range of options available
to the Court on g a decree including the power to approve a Deed of Settlemttlement (s.87(1)(k)).
In thie, the parties dies did not ask the Court to approve the Deed of Settlement, entered into in contemplation of the divorce proceeding
which both had agreed was tthe vehicle for dissolving their marriage. It is easy to unto understand why. The provisions of the Deed
were spent upon the making of the decree nisi. As Byrne J. pointed out in his judgment, there was a mechanism in the Deed which allowed
the wife to continue with her existing divorce proceedings if the husband failed to comply with Clause 1 (payment of maintenance),
Clause 2 (payment of $70,000) and Clause 3 (transfer of house property). In the result, the only matter which required attention
at decree nisi stage was the wife’s maintenance.
The questionhether the the provision in the Deed which purports to bind the estate still applies once the parties opted into the
statutory system for a maintenance order. By so opting, the parties gainedright to apply to have the the Court increase, decrease
or even extinguish the maintenance, should circumstances so dictate. They chose never to exercise that right. Had they done so, the
Court hearing any application may well have taken into account the words of Lord Atkin in Hyman man [1929[1929] A.C. 601,629220#8220;I could well understand the Court coming to the conclusion that the parties’ pre-estimate
of the wife’s reasonable needs was judicious and that the allowance, continuing adoes after the husband̵’s decease,
and being independent of any fluctuations in the amounts of his fortune, needed no supplement”.
yman’s&#/u> case is auty (if any were nere needed) that an agreement to pay maintenance at a stated amount does not remove the right of
a wife to apply to the Court for more maintenance, even when a wife had covenanot to apply for more maintmaintenance; such a covenant
is void against public policy. See also, Brooks v. Burns Philp Trustee Co. Ltd. [196A 4; [1969] HCA 4; (1969), 121 C.L.R. 432.
Austn cases (which are are somewhat difficult to assess because of the number and length of the judgments) point to the view holding
that a maintenance order is a personal liability which ceases on death. The Australian position was summarised by Jacobs, P inLake v. Quinton [1970] 1 NSWLR 111, 113-4.
The dissenting judgment of Hutley, JA in Lake v. Quint> [197;[1973] provides a contrary view on s.104(2) of the Australian Act.(i.e. s.101(2) of the Fiji Act)
Like y JA in LaLake v. uin>Quinton at 139, we have difficultyculty in reconciling the views expressed in some but not all of the judgments in Jon v. KrakoKrakowski the athe apparentear wof a statute whic which purports to give the right, with leth leave of the Court, to apply to enforce a maintenance
order against thete ofperson ordered toed to pay.
One would imagine gine that questions of competing equities could be canvassed before the Court on a leave application (e.g. respective
financial positions of the former wife and the widow). No information was before Byr concerning the means of thof the widow; he had
information about the circumstances of the former wife which were not good. It is not surprising, therefore, that he exercised his
discretion under s.101(2) in her favour, absent any other information, assuming of course that he had jurisdiction to make an order
under s.101(2).
We consider that udge ddge did have jurisdiction under s.101(2). The opinions on the comparable Australian subsection were probably
obiter, since Johnston v. KrakowskiJohnston v. Krki> more compelling. Indhey seey seem to be supported by English authorities such as v. Hyman. We n;We note, toot some doue doubts seemed to have been expressed about Johnst KrakowskiFev. Mulligan, #160;(1971) 45 52JR 525, 525, 528, 543.
It follows from what we have said that the decree nisi maintenance order could, with leave of the Court, bind the estate of the deceased.
Byrne J.exerciss discretion correctly to give that leave.
We think too the provisrovision forn for maintenance in the Deed survived the decree nisi although the Deed became secondary to the
maintenance orders because of the latter’s susceptibility to variatnd extinction. The only dify difference between the two
was that the Deed by its terms, bound the husband’s estate. There was nothing contrary to public policy in such a provision
in the deed, (Kirk v. Rose) (Supra). The Deed’s existence would also be a factor in deciding to grant leave under s.101(2). Accordingly in our view, the
Judge was correct both to uphold the deed and to grant leave under s.101(2).
The declaramade by Byrn Byrne J. will stand as will judgment for the arrears. As indicated at the hearing, we disagree with the Judge
that this was a proper case for indemnity costs. In our view, the wids quite justified in contesontesting the claim. As can be seen
from this judgment, the legal issues were quite difficult. She was fully within her rights in contesting the claim. We agree with
the Judge that the scale of costs, as at the date of his judgment, was out of touch with reality. The widow should suffer the normal
consequences of unsuccessful litigation i.e. to pay the successful litigant a reasonable contribution by way of party and party costs.
We endorse iew taken byen by this Court in South Pacific Recordings Ltd.v. Yates (Civil l peaof 1996). We coWe commend that case to High Courtes as a useful authority on the fixing of costs. For the rehe reasons
stated in Yates, we consider a lum allowancewance ariateparty and party crty costs.osts.
Trmer wife is entitled tled to a reasonable contribution to her costs in the High Courtnst tsband’s estate. The costs order
should refl reflect tect the fact that the former wife did not succeed on her claim for a lump sum for future maintenance. However
it should also reflect the delay in 1994-5 on the part of the widow and/or the Trustee in replying to the former wife’s solicitors’
letters.
We think that a reasonable party and party award for the High Court hearing is $1,250 plus disbursements as fixed by the Chief Registrar.
As to the costs in this Court, the respondents hacceeded on the orders for future maintenance and on the inde indemnity costs order.
We therefore think an appropriate award is $1,000 plus disbursements as fixed by the Chief Registrar. Both costs orders are to be
against both the Trustee (as representing the estate of the deceased).
For the reasons given, we answer in the affirmative both the questions posed on page 9 of this judgment.
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URL: http://www.paclii.org/fj/cases/FJLawRp/1999/38.html