Ancell v Dawes
[2016] WASC 402
•13 DECEMBER 2016
ANCELL -v- DAWES [2016] WASC 402
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 402 | |
| Case No: | CIV:2221/2016 | 22 NOVEMBER 2016 | |
| Coram: | MASTER SANDERSON | 13/12/16 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Extension refused | ||
| B | |||
| PDF Version |
| Parties: | JAYNE ANCELL MICHAEL DAWES as Executor of the Estate of MAUREEN ANN DAWES DAVID DAWES as Beneficiary of the Estate of MAUREEN ANN DAWES ALAN DAWES as Beneficiary of the Estate of MAUREEN ANN DAWES JEFFREY DAWES as Beneficiary of the Estate of MAUREEN ANN DAWES |
Catchwords: | Family Provision Act 1972 (WA) Application for extension of time to bring action Turns on own facts |
Legislation: | Family Provision Act 1972 (WA) Rules of the Supreme Court 1971 (WA) |
Case References: | Clayton v Aust (1993) 9 WAR 364 Craig v Craig [2015] WASC 109 Grigoriou v Nitsos [1999] WASCA 42 Young v Kestel [2003] WASCA 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MICHAEL DAWES as Executor of the Estate of MAUREEN ANN DAWES
First Defendant
DAVID DAWES as Beneficiary of the Estate of MAUREEN ANN DAWES
Second Defendant
ALAN DAWES as Beneficiary of the Estate of MAUREEN ANN DAWES
Third Defendant
JEFFREY DAWES as Beneficiary of the Estate of MAUREEN ANN DAWES
Fourth Defendant
Catchwords:
Family Provision Act 1972 (WA) - Application for extension of time to bring action - Turns on own facts
Legislation:
Family Provision Act 1972 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Extension refused
Category: B
Representation:
Counsel:
Plaintiff : Ms R J Lee
First Defendant : Mr E M Heenan
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
Plaintiff : Armstrong Legal
First Defendant : CS Legal
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109
Grigoriou v Nitsos [1999] WASCA 42
Young v Kestel [2003] WASCA 190
1 MASTER SANDERSON: This is the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA). In determining the application it is necessary to decide whether it is in the interests of justice to grant the extension sought. The principles governing the exercise of discretion were set out by the Full Court in Clayton v Aust (1993) 9 WAR 364. They be summarised as follows:
(a) the discretion of the court is unfettered but must be exercised judicially and in accordance with what is just and proper;
(b) the onus is on the plaintiff to establish sufficient grounds for taking the matter out of the general rule and depriving those who are protected by it of its benefits;
(c) the time limit in the Act is a substantive provision and not a mere procedural time limit;
(d) it is material when considering the application to consider how promptly and in what circumstances the plaintiff has brought an extension of time;
(e) it is relevant to consider whether there have been any negotiations with the defendant;
(f) it is relevant to consider whether or not the estate has been distributed before the claim was made or notified;
(g) it is relevant to consider whether a refusal to extend time would leave the plaintiff without redress against anybody; and
(h) it is relevant to consider whether the plaintiff has an arguable case on the merits but no detailed examination of the plaintiff's claim is warranted.
2 It is clear from the decision of Malcolm CJ in Clayton v Aust it was never intended that these principles should be seen as immutable or that there were not other factors which in particular cases could be relevant. Thus in Grigoriou v Nitsos [1999] WASCA 42 the Full Court held it was relevant to consider whether an applicant had followed up their solicitors to ensure an application was made promptly.
3 There is a further factor which is relevant and is particularly relevant in this case. That is the size of the estate. It is a fact if the estate is small and leave is granted a good proportion of the estate is likely to be consumed in legal costs. It may well be once leave is granted settlement negotiations take place and the matter is resolved. Even then, experience suggests costs quickly mount up. But, if the matter is not settled, there is a real risk all of the parties might wind up actually receiving less from the estate than they would have received had leave not been granted. Self-evidently every case will be different. It may be this is a factor which only requires consideration when the estate is small. But it can be considered when the interests of justice is the touchstone for the grant or refusal of leave.
4 While the principles set out in Clayton v Aust have been applied consistently it is not always easy to give content to the principles as articulated. In particular it is not easy to see how the fact that the time limit in the Act is 'a substantive provision' and informs the exercise of discretion. It is true that the limitation period is found in the statute, in contrast say to the limitation period for the bringing of an application for summary judgment, which is found in the Rules of the Supreme Court 1971 (WA). Perhaps then more caution should be exercised in extending time in relation to a statutory provision as against a time period found in a regulation. But really the principles are the same - it is a question of what is in the interests of justice. So although the 'substantive provision' principle is often stated it might perhaps be best were it to be omitted.
5 The plaintiff relied on two affidavits. The first was sworn by Mr Paul Traianedes on 15 July 2016. Mr Traianedes is the plaintiff's solicitor. Parts of that affidavit were inadmissible and objection was taken by the first defendant. The offending paragraphs were struck out. The second affidavit was an affidavit of the plaintiff sworn 21 November 2016. It was filed late - in fact it was filed the day before the hearing. I admitted it into evidence over the objection of counsel for the first defendant. To his credit counsel for the first defendant indicated he was prepared to proceed with the application and did not require an adjournment to deal with the contents of the plaintiff's late affidavit. For their part the defendants relied on two affidavits of the first defendant, one affirmed 27 September 2016, the other affirmed 7 October 2016.
6 The facts can be simply stated. The deceased died on 9 January 2015 in England. Probate of her will was granted in this court on 27 May 2015. The estate has not been distributed. It is not a large estate being in the order of $700,000.
7 The plaintiff's application for leave was commenced by originating summons dated 15 July 2016. That was a bit over a year after the grant of probate and seven months and 18 days after the expiry of the time limitation in s 7(2)(a) of the Act.
8 The history of the matter is as follows. On 6 July 2015 the plaintiff sent an email to the first defendant's solicitors asking for a copy of the deceased's estate's accounts. On 16 July 2015 the first defendant's solicitors replied by sending the plaintiff a copy of the statement of assets and liabilities filed with the application for the grant of probate. Nothing then appears to have happened until 19 October 2015 when the first defendant received an email from the plaintiff expressing an interest in purchasing the deceased's house in Perth. Nothing further developed from this correspondence.
9 On 16 November 2015 the plaintiff's solicitors wrote to the first defendant's solicitors expressing the plaintiff's desire to 'investigate the merits of a claim on her behalf'. That preliminary inquiry from the plaintiff's solicitors was 11 days before the expiry of the limitation period on 27 November 2015. In fact the first defendant's solicitors responded on 27 November 2015 confirming the financial position of the estate and further confirming the plaintiff was entitled to one-fifth of the estate. Following a telephone conversation on 27 January 2016 the first defendant's solicitors forwarded to the plaintiff's solicitors a copy of the grant of probate and the will. That correspondence was received by the plaintiff's solicitors on 28 January 2016. On 3 February 2016 the plaintiff's solicitors asked the first defendant via his solicitors if he would consent to an extension of time for the plaintiff to bring an application. It is not entirely clear but it seems the plaintiff's solicitors were labouring under the mistaken belief the time period for bringing a claim had not yet expired. Any confusion was cleared up by a letter from the first defendant's solicitors dated 5 February 2016 to the plaintiff's solicitors.
10 The parties conferred in February 2016 regarding the plaintiff's foreshadowed claim. Some two months later on 27 April 2016 a without prejudice offer was made by the plaintiff to the first defendant. On 24 May 2016 the first defendant's solicitors confirmed rejection of the plaintiff's offer. On 15 June 2016 the plaintiff's solicitors indicated the plaintiff intended to apply for an extension of time to commence proceedings. This application was brought one month later on 15 July 2016.
11 That chronology is largely taken from the two affidavits of the first defendant and the affidavit of Mr Traianedes. Some flesh is put on the bare bones of the timeline by the affidavit of the plaintiff. By par 10 of her affidavit she sets out details of two issues which, as I understand her evidence, she says were responsible for her not taking action. First there was her own ill health. From 7 April 2015 she was on long-term sick leave. She says she has only recently returned to work on reduced hours. She says her problems were a frozen shoulder and fibromyalgia. She says her medical condition greatly affected her earning capacity. It is not entirely clear whether the plaintiff says her disabilities caused her to take no action or whether the financial constraints she was under as a consequence of her disabilities was the problem. There is no real explanation in the plaintiff's affidavit as to how either one or both of these interrelated problems caused her to delay taking action.
12 The second matter referred to is the plaintiff's steps to find out why the deceased passed away when she did. At the time of her death the deceased was living with the plaintiff in England. The deceased became ill, was admitted to hospital and died suddenly. The plaintiff was concerned the deceased's demise may have been a consequence of negligence on the part of the hospital to which she was admitted. Most of par 10 of her affidavit is taken up with explaining how she pursued the matter of her mother's death. But no real explanation is offered as to how these inquiries prevented the plaintiff taking steps to make a claim against her mother's estate.
13 Taken in the overall I am not satisfied the delay on the part of the plaintiff has been adequately explained. It is possible to infer - although it is not explicitly stated - the reason for the plaintiff not taking action was the financial constraints imposed by her absence from work. But taking the evidence she puts forward at its highest there is no real explanation for why she did not take action before she did. It may be for some time she was not aware of the relevant limitation period - although why her solicitors should not have drawn that to her attention if not clear. But even when the limitation period was drawn to the attention of her solicitors there was some delay in taking proceedings. It is hard to see why.
14 On balance I am not satisfied there is an adequate explanation for the delay in commencing proceedings. This is a factor which weighs against the grant of an extension of time. Put another way and using the factors set out in Clayton v Aust I am not satisfied the plaintiff has discharged the onus of establishing there are sufficient grounds for taking the matter out of the general rule.
15 Both parties directed considerable attention to the merits of the plaintiff's claim. In Clayton v Aust Malcolm CJ referred to the plaintiff having an arguable case but cautioned against a detailed examination of the plaintiff's claim. In fact Clayton v Aust itself was an appeal against the decision of a master who had determined the appellant's claim was 'weak on the merits or barely arguable'. The court was of the view the master erred in approaching the matter on the basis of determining whether the appellant's case was weak or barely arguable. All that he needed to determine was that the case was arguable.
16 Whenever this question of an arguable case is raised reference is made to the decision of Justice Mitchell in Craig v Craig [2015] WASC 109. That case is generally cited to illustrate that an analysis of the merits can in certain circumstances be warranted and, if the case is found to be unmeritorious, the application for an extension can be dismissed on that basis. It is true his Honour did set up the question of an arguable case as determinative of the issue whether or not to grant leave. His Honour put the position this way:
Subject to the applicant demonstrating an arguable case, I would be prepared to grant leave to file out of time in the present case. The delay has been modest, and the plaintiff and her legal representatives have been actively dealing with the case since shortly after the deceased's death even if the activity of the solicitors was misdirected from January to July 2014. The delay does not prejudice the first defendant or the beneficiaries under the Will. The estate has not been distributed, and its principal asset cannot be realised while the plaintiff exercises her right to reside in the Crawley property. The defendants were notified of the plaintiff's intention to make an application under the Act at an early stage. There is no evidence that any of the beneficiaries changed their position because the plaintiff did not make an application in time. There is no evidence that the plaintiff acquiesced in the delay of her solicitors. While she may have a claim against her current solicitors in negligence, her damages in such a case would be the loss of a chance of succeeding in her application under the Act.
Having regard to all of those matters, in my view it would be in the interests of justice to give the plaintiff leave to file out of time if she has an arguable case for the grant of final relief. However, if she does not have such a case, it would not be in the interests of justice to grant leave to commence proceedings which are doomed to fail and likely to deplete the financial resources of the parties and the estate [37] - [38]. (footnotes omitted)
17 In examining whether or not the case was arguable his Honour noted resolution of the case did not depend on resolving conflicts on the evidence. To that extent the case differed from Clayton v Aust. His Honour also noted he had no evidence from the defendants. For the purposes of the application he was prepared to assume gifts made by the deceased during his lifetime and their own financial resources were such as to provide adequately for the proper maintenance, support, education and advancement in life of the defendants.
18 His Honour then looked at the plaintiff's financial resources. He determined that they were significant and more than adequate for a woman aged 91 who was in or about to move into a nursing home. He then noted the plaintiff had not made a significant contribution or sacrifice to the build up of the deceased's estate. His Honour noted the plaintiff and the deceased maintained throughout their married life financial independence, which he characterised as 'unusual for a married couple'. Finally his Honour did note the plaintiff's monthly income was significantly exceeded by her expenses. However he pointed out a rearrangement of her property interests and a move to an aged care facility would alleviate the monthly shortfall. His Honour then looked at what the will of the deceased provided to the plaintiff. He concluded:
When account is taken of the above matters, for which the facts are uncontested, and assuming unproven matters, such as the financial position of the deceased's children, to be in the plaintiff's favour, it seems to me that the plaintiff does not have an arguable case. Given the nature and history of the relationship, the age, financial resources and future plans of the plaintiff and the size of the deceased's estate, it cannot be reasonably said that the bequest of a life estate in the Crawley property on the terms contained in the Will fails to make adequate provision for the plaintiff's proper maintenance etc.
In the present case, the success or failure of the plaintiff's application will have no practical impact on the standard of the plaintiff's maintenance etc. Whether she succeeds or fails, she will be able to continue to live in the Crawley property for so long as she is willing and able and, when age requires it, move to an aged care facility. The practical impact of success or failure will not be on the plaintiff's standard of living but the extent to which she will be required to deplete the capital of her estate to continue living in the style to which she has become accustomed subject to the demands of old age. It is not arguable that, in all of the present circumstances and having regard to the totality of the plaintiff's relationship with the deceased, the deceased's Will fails to make adequate provision for the proper maintenance, support, education or advancement in life of the plaintiff [64] - [65].
19 It is important to note Mitchell J concluded the plaintiff's case was not arguable. He did not evaluate the strengths or weaknesses of the case itself. Perhaps by implication he determined the case was so weak as to be unarguable. But to put the position that way misses the point of Clayton v Aust. Malcolm CJ was cautioning against an evaluation of the merits of a claim that was arguable. Once it was decided the case was arguable that was the end of the matter as EM Heenan J said in Young v Kestel [2003] WASCA 190:
Once it appears that the appellant has an arguable case for relief under the Act it is inappropriate, on an application for an extension of time, to embark on an evaluation of the strength or weakness of that case [118].
20 In my view the plaintiff does have an arguable case. In July 2013 she flew out to Australia and then accompanied the deceased back to the United Kingdom. The deceased lived with the plaintiff and although she was fiercely independent there is no doubt the plaintiff cared for the deceased. Furthermore, the plaintiff is in an unenviable financial position. While she has a surplus of assets over liabilities her present annual income is not sufficient to meet her present annual needs. In my view it is arguable the will of the deceased did not adequately provide for the advancement in life of the plaintiff. This is a factor in favour of the grant of leave.
21 Turning then to the size of the estate and leaving to one side costs which might be levied against the estate (including the costs of this application), each of the five children of the deceased would under the term of the will be entitled to $140,000. The plaintiff has indicated she would seek half of the estate - that is, $350,000. If leave is granted it is not difficult to imagine costs consuming a considerable proportion of what remains of the estate. Even if the matter was settled by negotiation the costs of this application taken together with further costs incurred may mean the plaintiff would receive only marginally more than her entitlement under the will. This factor favours a refusal of leave.
22 None of the other principles set out in Clayton v Aust push the matter one way or the other. The estate has not been distributed and although there have been some negotiations between the plaintiff and the defendant they have been inconclusive. There is no suggestion there has been any fault on the part of the plaintiff's solicitors.
23 On balance I am not satisfied this is a case where leave ought be granted. The length of the delay is significant but not I would accept egregious. However there is no real explanation for the delay. That is a factor which counts against the grant of leave particularly when it is borne in mind the onus is on the plaintiff to establish sufficient grounds for taking the matter outside the general rule. This is a relatively small estate and the risk of dissipating the limited assets is a factor against the grant of leave. I should note I would not see this factor in and of itself determinative of the application. It is when it is allied with the failure to adequately explain the delay that it becomes significant. On the other hand of course the plaintiff does have an arguable case. That fact has to be weighed in the balance.
24 Taken in the overall I am not satisfied this is a case where there should be an extension of time granted. I would dismiss the application. I will hear the parties as to costs.
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