Buswell v Kenneth Charles Stevenson as executor of the estate of Gillian Audrey Buswell - [2021] WASC 23

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BUSWELL -v- KENNETH CHARLES STEVENSON as executor of the estate of GILLIAN AUDREY BUSWELL [2021] WASC 23
CORAM:   MASTER SANDERSON
HEARD:   27 OCTOBER & 17 NOVEMBER 2020
DELIVERED          :   29 JANUARY 2021
PUBLISHED           :   29 JANUARY 2021
FILE NO/S:   CIV 1647 of 2020
BETWEEN:   RICHARD BUSWELL
Plaintiff

AND

KENNETH CHARLES STEVENSON as executor of the estate of GILLIAN AUDREY BUSWELL
First Defendant

BRUCE MICHAEL BUSWELL as executor and in a personal capacity as a beneficiary of the estate of GILLIAN AUDREY BUSWELL
Second Defendant

Catchwords:

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

Legislation:

Family Provision Act 1972 (WA)

Result:

Leave granted

Category: B

Representation:

Counsel:

Plaintiff	:	I R Gillon
First Defendant	:	No appearance
Second Defendant	:	M Curwood

Solicitors:

Plaintiff	:	Lawton Gillon
First Defendant	:	Mount Barker Legal
Second Defendant	:	Mount Barker Legal

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

Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Clayton v Aust (1993) 9 WAR 364
Grigoriou v Nitsos (As Executor of the Estate of Athanasois Nichos) [1999] WASCA 42

MASTER SANDERSON:

This is the plaintiff's application for an extension of time to commence proceedings for a share in the estate of his mother under the Family Provision Act 1972 (WA). The plaintiff relies on two affidavits, the first sworn 25 May 2020 and the second sworn 1 October 2020. The second defendant relies on his affidavit sworn 22 September 2020.
The principles governing applications of this nature were not in dispute. The starting point is the decision of the Full Court in Clayton v Aust (1993) 9 WAR 364. The principles are well understood and I will not repeat them for the purpose of these reasons. However, I should also mention the decision of Steytler P in Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14.
Gillian Audrey Buswell (the deceased) died on 5 September 2016 leaving a will dated 28 January 1996.[1] A grant of probate of the will of the deceased was obtained by the defendants on 6 December 2017.[2] The net value of the deceased's estate for probate purposes was put at $2,022,537.[3] Of that amount a sum of $1,635,046 was recorded as a share in a farming partnership which the second defendant says was worth no more than $313,000.[4] The second defendant says this was because at the date of the deceased's death the partnership held assets of $627,692. That partnership has now been wound up.[5] Without the partnership asset the deceased's estate is of a very modest value comprising two farm lots valued at $360,000.[6] The plaintiff disputes that is the case. He maintains the estate of the deceased had a real value of over $2,000,000.[7] The affidavit evidence does not allow me to reach a concluded view as to what might be the value of the estate. In any event, it was not put against the plaintiff by the second defendant that the estate was so small that no leave ought be granted. So apart from noting there is a dispute between the plaintiff and the second defendant as to the value of the deceased's estate, the issue can be put to one side.
[1] Affidavit of Richard Walker Buswell sworn 25 May 2020 [4].
[2] Affidavit of Richard Walker Buswell sworn 25 May 2020 [6]; Annexure A.
[3] Affidavit of Richard Walker Buswell sworn 25 May 2020 [7]; Annexure B.
[4] Second defendant's submissions in opposition filed 22 October 2020 [6].
[5] Affidavit of Bruce Michael Buswell sworn 22 September 2020 [41].
[6] Second defendant's submissions in opposition filed 22 October 2020 [6].
[7] Affidavit of Richard Walker Buswell sworn 25 May 2020 [6]; Annexure B.
Both in his written and oral submissions, counsel for the second defendant accepted the plaintiff had an arguable case. Thus one of the threshold requirements as set out in Clayton v Aust was satisfied. As the decision in Andre makes clear it is then appropriate to consider whether the plaintiff has a strong case. He maintained he did. The second defendant disagreed. Although this issue was not developed to any extent by counsel for the second defendant, it is a matter which requires some attention. An outline of the family history is found in the plaintiff's first affidavit. His parents originally farmed a property in Wandering, Western Australia. They sold that property in about 1997 and the family, consisting of the plaintiff's mother and father, himself and his brother, the second defendant, moved to a larger farm in Mount Barker. The plaintiff and the second defendant assisted in the farming operation. He says that he and the second defendant were each allocated a 25% share in the stock and machinery and loose assets of the business.[8]
[8] Affidavit of Richard Walker Buswell sworn 25 May 2020 [9].
In or about 1985 the plaintiff's parents purchased a property in the Cranbrook Shire to expand the farming business. The property was purchased in the name of a trust, the trustee of the trust being Ballingdon Pty Ltd. The two properties were farmed in conjunction.[9]
[9] Affidavit of Richard Walker Buswell sworn 25 May 2020 [10].
The plaintiff married in November 1979 and between 1982 and 1990 he and his wife had three children. Up until the mid 1990s the plaintiff and his wife resided on the Cranbrook property. In the mid 1990s the plaintiff agreed with his parents that he would take over the Cranbrook property and the debt on that farm. The title to the Cranbrook property remained in the name of Ballingdon Pty Ltd. The plaintiff assumed responsibility for the debt on the property. He also purchased additional machinery and equipment to operate the farm.[10]
[10] Affidavit of Richard Walker Buswell sworn 25 May 2020 [11] ‑ [13].
The plaintiff's father passed away in October 1998. He left his estate to the deceased. The Cranbrook property was sold in 2000. At that time the plaintiff says he was struggling to service the debt on the property and meet the costs of the education of his children. Subsequent to the sale the plaintiff and his wife and children moved to Perth. They purchased a block of land in Mindarie on which they constructed a family home.[11]
[11] Affidavit of Richard Walker Buswell sworn 25 May 2020 [14] ‑ [16].
When he moved to Perth, the plaintiff commenced a lawn mowing and landscaping business. He operated that business for four years. Unfortunately during the course of his work he sustained a back injury. That forced him to retrain. He qualified as a mortgage broker and obtained a position working for Community Choice Financial Services. He was with that company for five years. He worked for another mortgage broker between 2009 and 2014. Since 2014 he has worked independently as a mortgage broker. In December 2014 the plaintiff separated from his wife and entered into a property settlement. From that settlement he received $100,000.[12]
[12] Affidavit of Richard Walker Buswell sworn 25 May 2020 [17] and [21].
The plaintiff remarried in February 2017. In April 2016 he had purchased a property in Kokeby. He paid $490,000 for the property. To facilitate the purchase he borrowed $400,000. He says at present the property is worth $400,000 ‑ in other words he has no equity in the property. He is presently employed as a farm labourer earning $36,000 per year. He also receives trailing commissions from his finance broking days. In the month of March 2020 those commissions amounted to $4,244.[13] His assets are modest and he appears to have no savings. He does have superannuation but the affidavit evidence does not disclose the balance.
[13] Affidavit of Richard Walker Buswell sworn 25 May 2020 [22] ‑ [24] and [32].
The second defendant does not really dispute the plaintiff's evidence. He does maintain that the plaintiff benefited from the sale of the Cranbrook property over and above his direct entitlement.[14] But he does not have accurate figures. He says that in 2000 the deceased decided she could no longer maintain the Mount Barker property. Upon its sale she gave part of the proceeds to the second defendant to allow him to purchase his own farm. He then farmed in partnership with the deceased.[15] It is that partnership which forms the bulk of the deceased's estate and about which there is a dispute as to its value.
[14] Affidavit of Bruce Michael Buswell sworn 22 September 2020 [20].
[15] Affidavit of Bruce Michael Buswell sworn 22 September 2020 [37].
Based upon the evidence as it stands at the moment, it is difficult to make an assessment of the strength of the plaintiff's case. It is clear that he has an arguable case and the concession made by counsel for the second defendant was properly made. It is also true that his financial position at the moment is precarious. He is 63 years of age and has very modest assets. His employment prospects as a farm labourer, particularly in light of a back injury, must be regarded as uncertain. Against that it seems clear, when the Cranbrook property was sold, the plaintiff received more than his strict entitlement. There is some reference in the second defendant's affidavit, to difficulties between the plaintiff and the deceased which might be thought to suggest disentitling conduct. However, the evidence is not such as would allow me to draw any adverse inference against the plaintiff on this issue and I have not done so.
On balance, I would accept the plaintiff has reasonable prospects of success. Given the conflict on the affidavit evidence, it is not possible to draw hard and fast conclusions. But I would not categorise the case as weak; nor could I categorise it as very strong. Perhaps the best categorisation would be to say the plaintiff has a good arguable case.
The second defendant's opposition to the application was based upon the plaintiff's delay in bringing the application. The second defendant submitted this delay had about it two aspects. First, there was the delay between the grant of probate on 6 December 2017 and the plaintiff's instructing solicitors on or around 13 August 2019. There is then the delay between 13 August 2019 and the bringing of this application on 3 June 2020.[16] Each of these periods of delay, and the consequences of that delay, need to be considered.
[16] Second defendant's submissions in opposition filed 22 October 2020 [17] ‑ [18].
In par 27 of his first affidavit, the plaintiff says that as at the date of death of the deceased and for a period of time thereafter, he was not aware he could seek further provision from the estate of the deceased under the Family Provision Act. That being so, he was not aware of the six month time limit. In pars 25 to 27 of his first affidavit, the plaintiff sets out an arrangement which he says he had with the second defendant which would have obviated the need to make a claim against the deceased's estate. The second defendant denies any such arrangement was reached. Given the conflict on the evidence, I can reach no concluded agreement about what, if any, arrangement was made between the plaintiff and the second defendant. However, the fact that discussions were taking place and the fact that there appeared to be a fairly close relationship between the plaintiff and the second defendant does, in my view, explain the delay up until August 2019.
The delay thereafter is rather more difficult to explain. Immediately after the plaintiff's solicitors were engaged they wrote to the defendant's solicitors seeking a copy of the will of the deceased. That was provided on 14 August 2019. On 19 August 2019 a copy of the r 9B statement was requested. That was provided to the plaintiff's solicitors on 20 August 2019.[17] There was no further action taken in these proceedings until the originating summons was lodged on 3 June 2020. As counsel for the second defendant pointed out, the period between the plaintiff's solicitors being fully informed of the financial position of the estate and the issue of proceedings was longer than the six month time limit.[18] Nowhere in the evidence is that delay explained. Nor is there any evidence of any steps the plaintiff himself may have taken to enquire of his solicitors the progress of the claim.
[17] Affidavit of Bruce Michael Buswell sworn 22 September 2020 [62]; Annexure BMB‑7 ‑ 10.
[18] Second defendant's submissions in opposition filed 22 October 2020 [18].
The Full Court considered a situation very much like this in Grigoriou v Nitsos (As Executor of the Estate of Athanasois Nichos) [1999] WASCA 42. The facts in that case disclose a sorry history of delay on the part of the applicant's solicitors. When I heard the matter there was no evidence from the applicant's solicitors as to why they had delayed in making an application for an extension of time, nor was there any evidence from the applicant herself as to any steps she had taken to ensure an application was made. On that basis, I dismissed the application for an extension of time. The Full Court allowed an appeal against that decision. Ipp J (with whom White J and Steytler J concurred) said:
17.In my opinion, where delay in making an application in terms of s 7(1) is due to the conduct of an applicant's solicitors, the 'justice of the case' requires all the relevant circumstances to be examined to determine the extent to which the solicitors' fault is to be attributed to the applicant. It should not automatically follow that the solicitors' neglect will be visited upon the applicant: after all, that might not meet the justice of the case. This underlies the approach in Brown v Holt [1961] VR 435 and Re Traeger deceased [1948] SASR 248, both being cases involving a failure by solicitors to give timeous notice of applications under legislation similar to the Inheritance (Family and Dependants Provision) Act. In both cases the reasonableness of the conduct of the applicant, as well as that of the applicant's solicitors, was regarded as relevant. See also Bourke v Kecskes [1967] VR 894 (which was an application for the dismissal of an action for want of prosecution), where Lush J examined the question whether 'it is fair to place on the facts the interpretation that the plaintiff was passively accepting a situation which he ought to have realised was wrong' (because of unreasonable delay on the part of his solicitor).
18.The material before the learned Master contained no evidence as to the steps taken by the applicant herself (as opposed to Stamatiou & Co) in attempting to ensure that her application was brought within time. For the reasons that I have explained, this was of fundamental importance. The Court raised this issue with counsel when the argument on the application for leave to appeal commenced. At the invitation of the Court, counsel for the applicant thereupon applied for leave to lead the evidence of the applicant in this respect.
The fresh evidence presented to the Court of Appeal showed that the applicant had, on a number of occasions, consulted her solicitors about the progress of any claim. While it would be too much to say she was actively mislead, it was certainly the case she had not stood idly by while time passed. Ipp J concluded:
27.In summary, the evidence established that the applicant, disadvantaged as she was by her lack of ability to read English and her rudimentary education, retained what she believed to be an apparently competent firm of solicitors and she relied on them to protect her interests. She requested them at regular intervals for information as to what they had done and were doing, and was constantly reassured that everything was in order. It was only after the learned Master handed down his reasons that she discovered that over a period of several months her solicitors had done nothing to prosecute her case and had allowed the time period stipulated by s 7(2)(a) of the Act to expire. As counsel for the respondent rightly conceded, the application could not have done more to protect her interests.
28.The aforegoing evidence was powerful material which weighed heavily in favour of granting an extension of time under s 7(2)(b). As mentioned, this material was not before the learned Master. In the circumstances, the issues had to be considered afresh.

Prior to the Grigoriou decision, there had been no case in this jurisdiction where, in considering an application for an extension of time, the conduct of the applicant personally was considered relevant. The authorities referred to by Ipp J are Eastern States authorities which were of some antiquity. But at least for the last 20 years it has been plain a relevant consideration, when delay is an issue, is whether or not the plaintiff personally has taken any steps to advance his position. As I have said, no evidence on that issue was filed.
After careful consideration, I determined in the circumstances of this case it would be appropriate to recall the matter and allow the plaintiff to put on any evidence as to the steps he had taken to monitor the progress of any instructions he had given to his solicitors. The result was an affidavit sworn by the plaintiff on 27 November 2020.
This affidavit went into some detail as to why the plaintiff did not progress the action between August 2019 and June 2020. That is evidence which could (and probably should) have been included in the plaintiff's affidavit in support of the application. Beyond that, the affidavit makes clear the plaintiff's solicitors were not instructed to take proceedings until shortly before this application was commenced. In other words, the factors relevant in the Grigoriou decision were not present here. This action then turns on the evidence provided by the plaintiff prior to his latest affidavit.
On balance, I am satisfied leave ought be granted. Two factors are very much in the plaintiff's favour. First, he has an arguable case. The second point really flows on from the first ‑ the plaintiff is in difficult life circumstances and any judgment in his favour would substantially improve his position. Against the plaintiff is the delay and the fact that, to an extent, the delay is unexplained. But the second defendant was always aware the plaintiff wanted a larger share of the estate and was also aware, if no agreement was reached, proceedings might issue. While the position is finely balance, I am satisfied leave ought be given to the plaintiff.
On publication of these reasons the parties should agree a minute of orders. Subject to hearing from the parties, the costs of the application should be costs in the main proceedings. If no agreement can be reached as to the form of orders then short submissions, together with a minute of proposed orders, should be filed by each party within 14 days of publication of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CB
Associate to Master Sanderson
29 JANUARY 2021