“My 1st claim was about land. I’m not estopped from bringing this one about shares!”

___

P sought orders confirming they were a shareholder in two Cos: [1]

P, D1, and D2 were siblings. The shares were part of their parent’s estate: [2]

In 1994, the parent made a will bequeathing their estate in equal parts to P, D1, and D2. In 2016, D1 obtained a grant of probate in respect of that will and transferred the shares to D1’s name: [2], [7]

D1 then refused to distribute some of the estate (including the shares): [7]

In 2018, P brought s66G proceedings re real property co-owned by the siblings, bequeathed to them by the parent. Those were finalised by consent: [8], [31], [32]

P accepted in XX that it would have been neater if P claimed the shares in the 2018 litigation, but noted that D1 has promised to transfer the shares a number of times: [12], [13]

From ~2016, after the parent’s death, the parties’ lawyers exchanged correspondence regarding the real property and the shares: [21] – [31]

In that corro, D1 said the shares would be transferred to P in accordance with the will: [29], [30]

Later in 2023, D1 said P pressed no further claim on the estate after the 2018 property litigation and did not seek the shares; and also said an Anshun estoppel arose: [36]

P denied this, and in 2024 brought these proceedings: [36]

P resisted the Anshun estoppel argument on the basis the 2018 proceedings related to specific real property, and not the parent’s estate generally: [37]

The Court considered the relevant law including that an Anshun estoppel arises when “the matter relied upon in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”: [40]

Importantly, an estoppel does not necessarily arise because material *could* have been considered in the first claim. What is required is that it *should*: [41]

P showed the shares’ status was not in dispute at the time of the 2018 proceedings. D1’s lawyers had indicated the share transfer was imminent: [48]

The Ds pointed to P accepting in XX that it would have been “easier” had the 2018 proceedings dealt with the shares. The Court considered this evidence was informed by 2025 hindsight: [51], [52]

The Court found there was no Anshun estoppel as: (i) ownership of the real property had passed at the time of the 2018 proceedings, meaning they did not concern the estate but a co-owners dispute [53]; (ii) at the time of 2018 proceedings, D1 had promised the share transfer would occur: [54]; and (iii) there is a strong public interest in holding an executor to their duties: [55]

Nor did the Court find the application was an abuse of process: [57] – [61]

Having, among other things, not established the Ds had suffered prejudice, nor was a delay defence successful: [72]

The defences to P’s s175 application failed.

___

Please follow James d'Apice, Coffee and a Case Note, and Gravamen on your favourite platform!

www.gravamen.com.au