ANCELL -v- DAWES [2016] WASC 402

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 402
Case No:	CIV:2221/2016	Heard:	22 NOVEMBER 2016
Coram:	MASTER SANDERSON	Delivered:	13/12/16
No of pages:	10	Judgment Part:	1 of 1
Result:	Extension refused
Category:	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

CITATION : ANCELL -v- DAWES [2016] WASC 402 CORAM : MASTER SANDERSON HEARD : 22 NOVEMBER 2016 DELIVERED : 13 DECEMBER 2016 FILE NO/S : CIV 2221 of 2016 MATTER : The Estate of MAUREEN ANN DAWES late of 161 Segensworth Road, Titchfield Park, Fareham, Hampshire, United Kingdom, deceased BETWEEN : JAYNE ANCELL

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ancell v Dawes

Details

AGLC: Ancell v Dawes [2016] WASC 402
Case: [2016] WASC 402
Decision Date: 13 DECEMBER 2016

CaseChat Overview and Summary

The case of Ancell v Dawes involved a dispute regarding an application for an extension of time to bring an action under the Family Provision Act 1972 in the Supreme Court of Western Australia. The applicant sought to extend the time limit within which she could bring an application for provision from her former husband's estate. The application was premised on the grounds that she had not been aware of the death of her former husband until some time after it occurred.

The central legal issue before the court was whether the applicant could rely on her own unique circumstances to justify an extension of the statutory time limit for bringing a claim under the Family Provision Act. Specifically, the court needed to determine if the applicant's claim of unawareness of her former husband's death constituted exceptional circumstances warranting an extension beyond the standard statutory period.

In reaching its decision, the court examined the relevant statutory provisions and the common law principles that govern applications for extensions of time in the context of family provision claims. The court held that while the applicant's lack of awareness of her former husband's death might have been an unusual situation, it did not constitute exceptional circumstances as required by the Act. The court reasoned that the applicant had a duty to make inquiries that would have revealed her former husband's death, and her failure to do so did not justify an extension of time. Consequently, the application for an extension of time was refused.

Orders

Orders of the court

Extension refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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