BARTOLOMEI v Gustafsson - [2014] WASC 264

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BARTOLOMEI -v- GUSTAFSSON [2014] WASC 264

CORAM: MASTER SANDERSON

HEARD: 1 JULY 2014

DELIVERED : 24 JULY 2014

FILE NO/S: CIV 2051 of 2012

MATTER :Family Provision Act 1972 (WA)
The Estate of UGO BARTOLOMEI (Dec)

BETWEEN: CONNIE BARTOLOMEI by her next friend THE PUBLIC TRUSTEE
Plaintiff
AND
LORENA ROSA GUSTAFSSON as Executrix of the Estate of UGO BARTOLOMEI (Dec)
First Defendant
LORENA ROSA GUSTAFSSON as Beneficiary of the Estate of UGO BARTOLOMEI (Dec)
Second Defendant
PATRIZIA FAVALI as Beneficiary of the Estate of UGO BARTOLOMEI (Dec)
Third Defendant
DANIELA GREEN as Beneficiary of the Estate of UGO BARTOLOMEI (Dec)
Fourth Defendant

Catchwords:

Family Provision Act 1972 (WA) - Application for extension of time to bring proceedings - Turns on own facts

Legislation:

Nil

Result:

Extension of time granted

Category: B

Representation:

Counsel:

Plaintiff:     Ms G M Anderson
First Defendant            :     No appearance
Second Defendant        :     Mr L A Tsaknis
Third Defendant           :     Mr L A Tsaknis
Fourth Defendant         :     Mr L A Tsaknis

Solicitors:

Plaintiff:     Contested Wills & Probate Lawyers
First Defendant            :     No appearance
Second Defendant        :     Fiocco's Lawyers
Third Defendant           :     Fiocco's Lawyers
Fourth Defendant         :     Fiocco's Lawyers

Case(s) referred to in judgment(s):

Clayton v Aust (1993) 9 WAR 364

MASTER SANDERSON: This is the plaintiff's application for an extension of time within which to bring a claim under the Family Provision Act 1972 (WA) (the Act). The deceased died on 31 July 2008. He left a will dated 23 November 2001. Probate of that will was granted to the first defendant on 20 July 2009. Pursuant to s 7(2)(a) of the Act the plaintiff had until 19 January 2010 to make an application under the Act. This application for the extension of time was filed on 19 June 2012. The plaintiff requires an extension of just over two and a half years to bring her application.
The plaintiff is the wife of the deceased and she is presently aged 84 years. Lorena Rosa Gustafsson (Lorena) is the daughter of the deceased and she is presently aged 54 years. The third and fourth defendants are also daughters of the deceased. Patrizia Favali is presently aged 58 years and Daniela Green is aged 52 years. The plaintiff is not the mother of the deceased's daughters. The plaintiff has no children of her own.
Before dealing with the relevant facts I should set out the legal framework within which this application is to be determined. Both parties were content to rely upon the principles set out by the Full Court in Clayton v Aust (1993) 9 WAR 364. Counsel summarised the principles in this way:
1.The discretion of the court is unfettered but must be exercised judicially in accordance with what is just.
2.The onus lies on the plaintiff to establish sufficient grounds for taking the matter out of the general six month time limit. The plaintiff must make out a substantial case for it being just for the court to exercise its discretion to extend time.
3.The court has to consider the reason for the delay and how promptly the plaintiff has acted after finding out about the Act. For example, was a warning given by letter or otherwise to potential defendants.
4.Did negotiation commence within the six month time limit? Is some part of the delay explicable by attempts to settle the matter out of court?
5.Had the estate been distributed before a claim was made? If it was then the beneficiaries are more likely to have changed their position in reliance on the benefaction and are more likely to be prejudiced by the granting of leave.
6.Was the delay the fault of the plaintiff or his/her solicitors? If the plaintiff has taken reasonable steps to pursue the claim and the delay is attributable to the solicitors then leave will not be refused simply because of the delay by the solicitors since a claim for damages against the solicitors is unlikely to fully compensate the plaintiff and is likely to cause delay and expense to the plaintiff.
7.If leave is refused will that leave the plaintiff with redress against anyone else?
8.Does the plaintiff have an arguable case on the merits.
Turning then to the facts, the plaintiff and the deceased commenced a relationship in about 1980. They married on 19 June 1985. At the time of the marriage the deceased owned a property in Watkins Street, White Gum Valley. When the plaintiff and the deceased were married the plaintiff moved into the property and remained in residence until 2011.
At the date of the marriage the plaintiff was working as an assistant in a hardware store. She continued in that role for approximately five years after the marriage and retired in 1990 aged 60. The deceased who worked as a truck driver retired in approximately 1991.
It is the plaintiff's evidence that while she lived with her husband in the White Gum Valley property she paid half of the expenses - council rates, water rates, insurance and the like. She also contributed to the upkeep of the property by paying for the house to be painted, renewing floor coverings, purchasing white goods and paying for various repairs.
She also made further contributions to the partnership by paying half the cost of two motor vehicles the couple acquired. She contributed part of the cost occasioned by her husband's yearly trips to Europe. She contributed towards the cost of the weddings of the deceased's daughters. In addition to all of that she made non‑financial contributions such as cooking, cleaning, ironing and the like. In all the plaintiff's evidence paints a picture of a happy domestic relationship with the husband and wife as equal partners - albeit the matrimonial home had been purchased by the husband prior to the marriage and remained in his sole name.
The will of the deceased did make some provision for the plaintiff. She says in her affidavit (par 4(b)) he left her a life interest in the White Gum Valley property. That is not quite right. What his will did was allow the plaintiff to continue to reside in the premises so long as she paid one quarter of all rates and taxes, insurance premiums and maintenance costs. While these conditions were met the plaintiff had the right to remain in the property. However if the plaintiff did not wish to continue to live in the property then the house and its contents would fall into the deceased's residuary estate. The residuary estate was shared between the deceased's three daughters.
For approximately three years after the death of the deceased the plaintiff continued to reside in the property. However as she aged she found it more difficult to manage the property and manage living in the property. There were stairs at the front and the back of the house and she found navigating these stairs difficult. She says she felt pressured by Mrs Favali and Mrs Green to move out of the premises. Eventually in October 2011 she decided to leave and made arrangements to live with her sister.
She also says prior to moving she reached an agreement with Mrs Favali and Mrs Green that upon sale of the premises the plaintiff would be paid $75,000. The plaintiff appears to believe there was a concluded agreement between her and the deceased's three daughters to that effect. All of the daughters maintain there was no such concluded agreement. This application is not concerned with whether or not such an agreement was reached and if it was reached whether it is enforceable. What is beyond dispute is the property was sold and settlement occurred on 17 May 2012. The proceeds of the sale have not been distributed.
The estate is not large. It comprises cash at bank of just over $750,000, a motor vehicle and six piano accordions. The plaintiff puts the total value of the estate at $765,272.50. The defendants did not take issue with that valuation.
There were two main areas of difference between the plaintiff and the defendants. The first was the delay and the reasons for the delay. The defendants maintain there was no adequate explanation for why the plaintiff did not take action within the specified time limit. The second point raised by the defendants was the strength or otherwise of the plaintiff's case. The defendants maintained the plaintiff did not have even an arguable case.
That second point can be disposed of quite quickly. As counsel for the plaintiff pointed out this was a marriage of long duration. The plaintiff had made a significant contribution to the relationship over many years. She was provided for in the will but not in a way which recognised her needs as she aged. It is at least arguable she could bring a claim under the Act.
Counsel for the defendants pointed to the fact that each of the deceased's daughters was experiencing financial stress. Based upon the affidavits filed in opposition to the application I accept that to be the case. There are competing demands upon the estate. But on an application such as this I could not possibly conclude the claims on the deceased by his daughters are of such a magnitude as to preclude a claim by the plaintiff. The Clayton v Aust decision itself makes it plain no detailed examination of the claim is required. On the facts there can be no doubt the plaintiff's claim is arguable.
That then leaves the question of delay. In her first affidavit sworn 4 June 2012 the plaintiff sets out in pars 11 ‑ 30 the reasons why she did not take action. She really says nothing about the period up until March 2012. She gives no indication she was aware of the Act or her right to take proceedings for a greater share of the deceased's estate. She says in March 2012 she consulted solicitors who commenced negotiations with the solicitors for the executor. She does detail the alleged agreement in relation to the $75,000 she was to receive upon leaving the property but she does not suggest this was in some way related to any claim she might have under the Act.
As it turned out the plaintiff's version of events was not quite as it happened. In an affidavit sworn 29 August 2013 Mrs Gustafsson refers to two meetings the plaintiff had with solicitors to discuss the estate. But even prior to this the plaintiff had filed a further affidavit sworn 22 August 2012. In that affidavit she details a meeting with Mr Gino Monaco of Anthony Torre & Monaco on 26 August 2009. She was concerned about the provision made for her in the will. Although it is not entirely clear from the plaintiff's affidavit it would appear Mr Monaco informed her the costs of taking proceedings and the risks involved did not make any action worthwhile. He suggested a settlement be negotiated with the deceased's daughters. As I understand the plaintiff's evidence there was only the one meeting with Mr Monaco and it would appear she had resolved not to take matters any further.
That does not sit comfortably with the evidence of Mrs Gustafsson. She says she accompanied the plaintiff to the offices of Mr Sam Martella, a well known solicitor in Northbridge, with the express purpose of the plaintiff making a will. Mrs Gustafsson says during the course of discussions the prospect of her seeking further provision from the deceased's estate was discussed. Mrs Gustafsson says she formed the view the plaintiff had decided not to take any action in relation to the deceased's will.
None of the parties was cross‑examined on their affidavits. Indeed so far as the plaintiff is concerned there would have been no point in such cross‑examination. It seems her health is deteriorating and her memory is affected. That may explain why she did not mention the two meetings with the solicitors in her first affidavit - although it has to be said the affidavit was sworn in mid‑2012 and there is no suggestion at that stage she was in anyway intellectually impaired. In my view for whatever reason the plaintiff knew of her rights and made a conscious decision not to seek further provision from the deceased's estate.
Neither counsel in their written nor in their oral submissions addressed the question of whether if this application was refused the plaintiff might have a right of action against another party. On balance I think that omission was justified. The evidence from the plaintiff as to what she was told by Mr Monaco is at best vague. There is no evidence at all of what advice she was given by Mr Martella. In the circumstances it is difficult to see any cause of action would lie and even if it did it is very difficult to see how it could be maintained. It is right then to conclude if this application is refused the plaintiff has no recourse against a third party.
There are then the two competing positions. On the one hand the plaintiff has an arguable case. On the other hand there has been a significant delay by the plaintiff in circumstances where she was aware of her rights and chose to do nothing. The delay involved is considerable and it must be the case I think the longer the delay the less likely leave will be granted.
On balance I am satisfied that leave ought be granted in this case. This was a marriage of long duration and it is difficult to see how the plaintiff was adequately provided for in the will of the deceased. So long as she was fit and able bodied she could remain in the property. But it must have been apparent once she was forced to move to alternate accommodation she was left with nothing. If she had been left a life interest then when moving out of the property she could have used the rental proceeds to assist her in alternate accommodation. But in the absence of a provision such as that she was in a difficult position.
In reaching this conclusion I have given great weight to the delay and the inadequate explanation for the delay. One of the factors I have taken into account is that the estate has not been distributed. This is not a case where any of the defendants have changed their position based upon a distribution they have received from the estate. To that extent they have not been prejudiced. That seems to me to ameliorate in part what is always a prejudice when delay is involved.
The plaintiff will have 14 days from the date of publication of these reasons to bring an action under the Act. Subject to hearing from the parties the costs of the application ought be costs in the main proceedings.