Bonini v Bonini
[2009] WASC 400
•23 DECEMBER 2009
BONINI -v- BONINI [2009] WASC 400
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 400 | |
| Case No: | CIV:2786/2009 | 1 DECEMBER 2009 | |
| Coram: | MASTER SANDERSON | 23/12/09 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Extension granted | ||
| B | |||
| PDF Version |
| Parties: | MARCO VITO BONINI ROSALIA ANTONINA BONINI GERMANO BONINI As Executor Of The Estate Of SILVIO BONINI GERMANO BONINI |
Catchwords: | Inheritance (Family and Dependants Provision) Act 1972 (WA) Application for extension of time to bring application Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
ROSALIA ANTONINA BONINI
Second Plaintiff
AND
GERMANO BONINI As Executor Of The Estate Of SILVIO BONINI
First Defendant
GERMANO BONINI
Second Defendant
Catchwords:
Inheritance (Family and Dependants Provision) Act 1972 (WA) - Application for extension of time to bring application - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Extension granted
Category: B
Representation:
Counsel:
First Plaintiff : Ms N N Oldfield
Second Plaintiff : Ms N N Oldfield
First Defendant : Mr S Martella
Second Defendant : Mr S Martella
Solicitors:
First Plaintiff : Oldfield Legal
Second Plaintiff : Oldfield Legal
First Defendant : Martella & Co
Second Defendant : Martella & Co
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: This is the plaintiffs' application for an extension of time to bring proceedings under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act). There was no dispute between the parties as to the applicable legal principles. However, it is appropriate to state the matters which should be taken into account in determining whether or not an extension of time ought be granted.
2 The relevant principles are:
(a) The discretion of the court is unfettered and should be exercised judicially in accordance with what is just.
(b) The onus lies on the applicant to establish that it is just for the court to exercise its discretion to extend time.
(c) The court has to consider the reason for the delay and how promptly the applicant acted.
(d) It is relevant if some part of the delay is explicable by attempts to settle the matter without commencing litigation.
(e) If the beneficiaries are likely to be prejudiced by the grant of leave as a result of the estate having been distributed then the grant of leave is less likely.
(f) It is relevant if the delay was the fault of the applicant's solicitors.
(g) It is relevant if the refusal of the grant of leave will result in the applicant having no other recourse.
(h) The merits of any case the applicant might run are relevant but no detailed examination of the merits is appropriate.
3 Probate of the will of the deceased was granted on 20 March 2009. The six month time limit expired then on 20 September 2009. This application was brought on 15 October 2009 - just over three weeks after the time limit expired. The fact that the plaintiffs seek a relatively short extension of time is a factor in their favour.
4 Two other factors from the list above can be put to one side. There have been no attempts to settle this matter and none of the delay can therefore be attributed to time taken for negotiation. The estate has not been distributed. That fact, when weighed in the balance, is in favour of leave being granted.
(Page 4)
5 In support of the application the plaintiffs have filed three affidavits. The first plaintiff and the second plaintiff have each filed an affidavit sworn 14 September 2009. The plaintiffs also filed a joint affidavit sworn 7 October 2009. The first two affidavits filed by the plaintiffs deal solely with the merits of the case. The joint affidavit deals with the reasons why the application was not brought within time. The first plaintiff is the son of the deceased. The second plaintiff is his estranged wife. The deceased died on 8 October 2008.
6 The plaintiffs say that in or about November 2008 the second plaintiff contacted Germano Bonini, the deceased's brother, the executor of the estate and the beneficiary under the deceased's will. The second plaintiff asked Germano about the contents of the will. Germano advised her that nothing had been left to her. He was non-committal about what, if anything, had been left to the first plaintiff. Clearly the plaintiffs were uncertain as to the contents of the will.
7 After this discussion the plaintiffs hesitated - they were uncertain what to do. They did consult the Citizens Advice Bureau and were told that a grant of probate could take 12 months. The first plaintiff consulted a lawyer who mentioned the prospect of taking action in relation to the estate. She was advised that before anything could be done a grant of probate was needed. The first plaintiff undertook a number of searches at the probate office and eventually, in either April or May 2009, she found that the grant had been made.
8 It was not until July 2009 that the plaintiffs instructed their present solicitors. The affidavit provides no explanation of why the plaintiffs took no action between May 2009 and July 2009.
9 Having consulted solicitors, those solicitors prepared affidavits in support of the application which, according to the plaintiffs, were lodged with the court together with an application to waive fees on 17 September 2009. The application for waiver of fees was not assessed until 21 September 2009 by which time it was too late. This application was then brought.
10 On balance, I am satisfied the plaintiffs have provided an explanation for the delay in making the application. The first defendant was less than helpful in relation to the contents of the deceased's will and then did not notify the plaintiffs when probate was granted. The plaintiffs, to their credit, took it upon themselves to periodically search the probate register and it was only by this means they were able to ascertain that a grant had
(Page 5)
- been made. True it is that it took some time between the plaintiffs becoming aware of the grant of probate and their instructing solicitors. It is also true that the delay is unexplained. But the delay is not lengthy. Further, it is clear as the plaintiffs' solicitor mentioned in her submissions, the plaintiffs lack sophistication. It is not surprising they hesitated before taking the steps they did.
11 In my view, there is no warrant for suggesting the plaintiffs' solicitors were at fault in not lodging the plaintiffs' application within the six month time limit. By the time they were instructed time had almost run out. They then worked to the time limit but appeared to have failed to anticipate there would be some delay in the court processing the application to waive the fees. While it might be argued that the plaintiffs' solicitors should have taken the potential delay in considering the fee waiver into account, the failure to do so is hardly an egregious error.
12 The two affidavits filed by each of the plaintiffs deal with the merits of their claims. They could, in my view, stand as the evidence-in-chief of the plaintiffs. Without going into detail, it is clear the plaintiffs have an arguable case. Neither is financially well placed. The estate of the deceased is not inconsequential - it is just over $1.7 million. There appears to be no provision in the will for either of the two plaintiffs. I need say no more than that.
13 The plaintiffs should have leave to bring their application. The time for bringing the application should be extended to 15 January 2010. The costs of this application ought be costs in the main action.
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