Attwell v Attwell
[2021] WASC 145
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ATTWELL -v- ATTWELL [2021] WASC 145
CORAM: MASTER SANDERSON
HEARD: 17 MARCH 2021
DELIVERED : 7 MAY 2021
PUBLISHED : 7 MAY 2021
FILE NO/S: CIV 2195 of 2020
BETWEEN: PHILLIP BRYAN ATTWELL
Plaintiff
AND
IAN MICHAEL ATTWELL
First Defendant
STEPHEN JOHN MORGAN as executor of the estate of BRIAN VINCENT ATTWELL
BRIAN LEE FULLER as executor of the estate of BRIAN VINCENT ATTWELL
Second Defendants
Catchwords:
Family Provision Act - Application for extension of time to bring claim - Turns on own facts
Legislation:
Family Provision Act 1972 (WA)
Result:
Leave granted
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| First Defendant | : | C V Eastwood |
| Second Defendants | : | C H Thompson |
Solicitors:
| Plaintiff | : | In person |
| First Defendant | : | Eastwood Law |
| Second Defendants | : | Seymour Legal |
Case(s) referred to in decision(s):
Clayton v Aust (1993) 9 WAR 364
MASTER SANDERSON:
This is the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA) (Act). It represents the next step in what appears to be never ending internecine warfare within the Attwell family. Brian Vincent Attwell died on 13 July 2017 whilst incarcerated at Casuarina Prison. On 1 July 2019, following a four day trial, this court granted probate of his will in solemn form dated 7 September 2015 to the second defendants. The present plaintiff (who I will refer to as Phillip) along with Wendy Truslove, who was the deceased's de facto partner, challenged the validity of the deceased's will. Following judgment, Phillip commenced an appeal in June 2019. The appeal was ultimately abandoned in November 2019. The time for bringing an application under the Act expired on 1 January 2020. The present application was filed on 3 December 2020 and is 11 months out of time.
Phillip and the first defendant (who I will refer to as Ian) are brothers and the residual beneficiaries of their father's estate and each have been given gifts under the will in addition to being the joint residual beneficiaries. The substantive asset in the residuary is a property known as Howell Road. In addition there are funds in the residue. As I will deal with below, the estate is substantial ‑ being valued at, at least $10 million and, on Phillip's evidence, as high as $13 million. On 18 December 2020, Ian commenced proceedings seeking an order that the Howell Road property is held by the estate on trust for him. That litigation which involves Phillip and the executors, is yet to be resolved.
The principles applicable to an application such as this are not controversial. However, by reference to the decision of the Full Court of this court in Clayton v Aust (1993) 9 WAR 364 I should set out those matters which require consideration. The relevant principles are:
(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 on the plaintiff to establish sufficient grounds that taking the matter out of the general rule and thereby depriving those who are protected by it of the benefit of the lapse of time;
(c)the limitation period is a substantive provision and not merely a procedural limit;
(d)the court should consider how promptly and in what circumstances the plaintiff brought his application ‑ in other words, the length of the delay and the reason for the delay;
(e)any negotiations with the defendants both before and after the grant of probate are relevant;
(f)whether or not the estate has been distributed before the claim was made or notified to the executors is relevant to the exercise of the discretion;
(g)the court should consider whether a refusal to extend time would leave the plaintiff with redress against anybody;
(h)the court should not undertake a detailed examination of the merits of the substantive claim but should give consideration to whether it is arguable and if so, leave will generally be given.
This last point has recently been the subject of some judicial consideration. It can now perhaps be rephrased to say the plaintiff must show an arguable case (as is noted in Clayton's case) but the strength or otherwise of the case is not a relevant consideration. The plaintiff must show that his claim is arguable. It is therefore relevant to consider the surrounding circumstances so that if, as is alleged by Ian in this case, Phillip has, because of provision made for him during the lifetime of the deceased or in the will itself, received benefits which would make any further provision unnecessary then the claim will fail.
The application is supported by two affidavits of Phillip. The first sworn 1 December 2020, the second sworn 2 March 2021. The first affidavit sets out some of the history of Phillip's relationship with the deceased but does not, to any significant extent, advance his case. Perhaps the only aspect of his first affidavit that is of moment is par 14 where Phillip alleges the value of the estate is over $13 million as against the second defendants' value of just over $10 million. Phillip provides no evidence to justify his assessment of the estate's worth. That probably does not matter. It is clear the estate is substantial. All parties agree on at least that.
The application is opposed by both defendants. The second defendants rely on an affidavit of Brian Lee Fuller sworn 12 February 2021. Ian relies on his affidavit sworn 18 February 2021. Both defendants filed submissions. Phillip is self‑represented and I did not require him to file any submissions.
The relevant background facts taken from Ian's affidavit are as follows. The deceased started a civil works and earthmoving business in the 1960s called AD Contractors. At aged 15, Ian started working full time at AD Contractors and apart from a nine month sojourn overseas, he has been with AD Contractors in various capacities for the last 40 years.
The deceased left a will dated 7 September 2015 and a codicil dated 31 May 2017. As I have indicated above, Phillip and the de facto wife of the deceased challenged the will but were unsuccessful.
Between pars 31 to 45 of his affidavit, Ian sets out benefits and financial assistance provided to Phillip by the deceased. It would seem the point of these paragraphs is to illustrate Phillip received considerable benefits during the lifetime of the deceased and benefited substantially under the terms of the will. That it is said makes any application under the Act unlikely to succeed. Of course it must be remembered the question to be asked is whether the will made adequate provision for the prospective applicant. The benefits any applicant received prior to the death of the deceased are only relevant to the extent they put the prospective applicant's situation in context. A prospective applicant's needs either exist or they do not. How the prospective applicant came to be in his present financial position (and his position as at the date of death is what is relevant) is neither here nor there.
At pars 31 through to 36 of his affidavit, Ian sets out assistance which he says the deceased, through the agency of AD Contractors, extended to Phillip and Phillip's business known as Blok Tek Pty Ltd (Blok Tek). Blok Tek conducted a limestone block business that produced large limestone blocks for retaining walls for residential and commercial developments. Ian says AD Contactors paid the wages of some key Blok Tek employees, provided unrestricted and free access to mine lime sand ‑ the primary resource for Blok Tek ‑ from a quarry owned by AD Contractors, provided free access to fuel, free access to repairs and maintenance of machinery and in other ways assisted the Blok Tek business. Ian estimates the extent of the assistance at around $5 million, although he provides no documentary support for that figure.
At pars 37 and 38, Ian says the deceased gifted Phillip a farm in Eleeker. The gift was made some 25 years ago. Ian, again without any documentary evidence, estimates the value of the farm at $800,000 as at the date of death of the deceased.
At pars 39 and 40, Ian deals with the Attwell Superannuation Fund. Phillip was a member of that fund and Ian says in or about February 2015 he was paid an amount of $757,400 from the fund. Again, there is no documentary evidence to support that claim.
By par 41, Ian says that Phillip owns an interest in a property at Lot 6 Old Elleker Road, Gledhow which he purchased in 2014. Ian estimates the value of that property at $750,000. He does not allege Phillip acquired his interest in the property with assistance from the deceased or AD Contractors.
At par 42 of his affidavit, Ian sets out the benefits received by Phillip under the deceased's will. He says Phillip was gifted a property in Cuthbert which he values at around $300,000 to $320,000. Although it is not entirely clear from the affidavit, it appears Phillip also received another property in Cuthbert which had a value of between $630,000 and $680,000. Ian acknowledges the dispute over the Howell Road property and rightfully does not include that in the assets passing to Phillip under the will.
Even without reference to Phillip's affidavit material, it is clear it cannot be said at this stage that Phillip could not make out a claim for further provision from the estate. Apart from anything else, the values given by Ian of various properties are hearsay. He does not provide any breakdown of the financial position Phillip finds himself in. It is worthy of note that with the exception of the superannuation payout, Ian makes reference only to capital assets. Phillip has clearly spent considerable funds on litigation in relation to the deceased's will. Taken at its best, the evidence of Ian is not so clear as to allow me to conclude Phillip's case is unarguable.
The second affidavit of Phillip is an attempt to address matters raised by Ian. With respect, the affidavit is somewhat difficult to follow and the information provided does not really answer matters raised by Ian. Nonetheless, it is clear Phillip disputes much of what has been put by Ian and he appears to dispute Ian's assessment of his financial position. Although this affidavit does not advance Phillip's position to any significant extent it does enough to confirm my view I could not conclude Phillip's claim is unarguable.
As to the remaining considerations, the delay, although not inconsiderable, has to be viewed in the context of the poisonous relationship between Ian and Phillip. In his affidavit, Mr Fuller says that from about 29 July 2020 he was aware Phillip intended to make an application under the Act. In fact, he instructed counsel to invite Phillip to make any application for leave to commence at a directions hearing held before me on 13 October 2020. Mr Fuller confirms the estate has not been finally distributed and does not give any indication an award in favour of Phillip would cause difficulties for the estate. Mr Fuller also notes litigation in relation to Howell Road is ongoing.
Mr Fuller also notes that in July 2020 (and perhaps prior to that date) there were discussions between the parties in an attempt to resolve all matters relating to the estate.
It must be acknowledged that Phillip's evidence does not provide any detailed explanation for the delay in bringing the proceedings. He says he was constrained by matters such as lack of finance and other commitments as well as ongoing mental health issues occasioned by the litigation over the will. While the evidence does not fully explain the delay, it at least goes some way to explaining what occurred. Nonetheless, in weighing all factors in the balance, the failure to adequately explain the delay is a factor which is against the grant of leave.
That said, when all matters are taken into account, I am satisfied leave ought be granted. The only significant factor against the grant of leave is the failure of Phillip to explain the delay. There have been negotiations between the parties since the grant of probate. The estate has not been distributed. There is no question of Phillip having redress against another party and, on balance, I am satisfied Phillip's position is arguable. When all of these factors are weighed in the balance I am satisfied the proper order is to grant leave to Phillip to bring an action.
On publication of these reasons the parties should attempt to agree a minute of orders. It would be appropriate to grant leave to Phillip to bring proceedings within 21 days of the date of publication of these reasons. The costs of this application ought be costs in the cause of any proceedings which Phillip issues.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
7 MAY 2021