Carter v Prince
[2014] WASC 259
•22 JULY 2014
CARTER -v- PRINCE [2014] WASC 259
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 259 | |
| 22/07/2014 | |||
| Case No: | CIV:2731/2013 | 26 JUNE 2014 | |
| Coram: | MASTER SANDERSON | 26/06/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted to bring application | ||
| B | |||
| PDF Version |
| Parties: | VIVIENNE JUNE CARTER ROSALIE ELLEN PRINCE as Executor of the Estate of the late Dorothy Elizabeth Grimster ROSALIE ELLEN PRINCE |
Catchwords: | Family Provision Act 1972 (WA) Application for extension of time to bring proceedings Turns on own facts |
Legislation: | Nil |
Case References: | Clayton v Aust (1993) 9 WAR 364 Re Salmon (Dec) [1981] Ch 167 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
Estate of DOROTHY ELIZABETH GRIMSTER late of 213 Lesmurdie Road, Lesmurdie in the State of Western Australia (Dec)
- Plaintiff
AND
ROSALIE ELLEN PRINCE as Executor of the Estate of the late Dorothy Elizabeth Grimster
First Defendant
ROSALIE ELLEN PRINCE
Second Defendant
Catchwords:
Family Provision Act 1972 (WA) - Application for extension of time to bring proceedings - Turns on own facts
Legislation:
Nil
Result:
Leave granted to bring application
Category: B
Representation:
Counsel:
Plaintiff : Ms N N Oldfield
First Defendant : Mr A Atkinson
Second Defendant : Mr A Atkinson
Solicitors:
Plaintiff : Oldfield Legal
First Defendant : CGL Legal
Second Defendant : CGL Legal
Case(s) referred to in judgment(s):
Clayton v Aust (1993) 9 WAR 364
Re Salmon (Dec) [1981] Ch 167
1 MASTER SANDERSON: This was the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA) (the Act). At the conclusion of the hearing I indicated to the parties I would grant the extension sought by the plaintiff. I indicated I would publish reasons at a later date. These are those reasons.
2 The deceased died on 14 September 2012. Probate of the deceased's will was granted to Ms Rosalie Prince on 3 December 2012. The plaintiff and Ms Prince are sisters. The deceased left her entire estate to Ms Prince. In an affidavit sworn 3 June 2014 Ms Prince puts the value of the estate at around $640,000. This is made up of a property in Lesmurdie valued at $485,000, just over $100,000 cash at bank and an estimated value of the contents of the home at $55,000.
3 The time for the bringing of this application expired on 3 June 2013. This application was brought on 15 November 2013. Effectively then the plaintiff requires an extension of some five and a half months.
4 There was no dispute between the parties as to the relevant principles to be applied in determining whether or not an extension ought be granted. The starting point is the statement of principle by Vice Chancellor Megarry in Re Salmon (Dec) [1981] Ch 167:
[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus, I think, no triviality: the applicant must make out a substantial case for it being just and proper for the Court to exercise its statutory discretion to extend the time (175).
5 The case most frequently cited when considering how the discretion is to be exercised is the decision of the Full Court of this court in Clayton v Aust (1993) 9 WAR 364. The following statements of principle emerge from that decision:
(1) the discretion of the court is unfettered but is one that must be exercised judicially and in accordance with what is just and proper;
(2) the onus lies on the plaintiff to establish sufficient grounds for taking the matter out of the general rule and depriving those who are protected by it of its benefits;
(3) the time limit in the Act is a substantive provision and not a mere procedural time limit;
(4) it is material when considering the application to consider how promptly and in what circumstance the plaintiff has sought an extension of time;
(5) it is relevant to consider whether there have been any negotiations with the defendant;
(6) it is relevant to consider whether or not the estate has been distributed before a claim was made or notified;
(7) it is relevant to consider whether a refusal to extend the time would leave the plaintiff without redress against anybody; and
(8) it is relevant to consider whether the plaintiff has an arguable case on the merits but no detailed examination of the plaintiff's claim is warranted.
6 In this case there were only two grounds upon which the defendant resisted the application. First it was said the delay was significant and unexplained and for that reason leave ought not be granted. Second it was said it was apparent the plaintiff's claim was entirely without merit. In dealing with both of these submissions it is necessary to outline the relevant facts.
7 The plaintiff swore two affidavits in support of her application. The first was sworn on 23 October 2013 and the second was sworn on 28 April 2014. Ms Prince also swore two affidavits. The first sworn on 4 April 2014 and the second sworn on 3 June 2014.
8 In her first affidavit the plaintiff says that soon after her mother's death Ms Prince told her that she (Ms Prince) was the executor of the deceased's will. The plaintiff accepted that assurance without demur and left Ms Prince to deal with the estate. The plaintiff says it was not until 23 June 2013 she contacted her sister asking how her mother's estate was being handled. She was told distribution had been completed. Surprised the plaintiff asked her sister how it was she had received nothing from the estate. She says she was shocked to learn the deceased's will had given the whole of her estate to Ms Prince. She did not contact Ms Prince until 11 August 2013. On that date she sent her sister an email asking for a copy of the will and a copy of a document the plaintiff had signed when her sister had given her an amount of $50,000. This gift and its inter-relationship with the estate is of some significance and I will return to it later in these reasons.
9 The plaintiff and Ms Prince met on 24 August 2013 and the two documents the plaintiff had requested were given to her. On 28 August 2013 she consulted her present solicitors and she was advised to seek a copy of the grant of probate. That was provided to her by her sister forthwith. She engaged her present solicitors on 1 September 2013. She says it took 'some time to prepare the necessary documents'. In fact it took some two and a half months from the date the plaintiff provided instructions to her solicitors until the proceedings were issued.
10 In her first affidavit the plaintiff gives some background which assists in understanding Ms Prince's position in relation to this application. In 1997 the plaintiff and her then husband purchased a supermarket. Unfortunately the business did not go well and in February 2002 the plaintiff and her husband were forced to enter into an arrangement under pt X of the Bankruptcy Act 1966 (Cth). In order for the plaintiff and her husband to keep their home they sought financial assistance from the plaintiff's parents and Ms Prince. The plaintiff's parents gave her $20,000 and Ms Prince gave her $50,000. This cash was sufficient to satisfy the creditors and the plaintiff and her husband were spared bankruptcy.
11 At or around the time Ms Prince and her parents provided funds to the plaintiff the plaintiff signed two documents. These appear as attachment REP4 to Ms Prince's first affidavit. The first document reads as follows:
This is an attachment to the last will of Venour Charles Augustus Grimster dated 23/10/02.
Under no circumstances shall my youngest daughter Vivienne June Carter receive any benefit from my estate during the lifetime of my eldest daughter Rosalie Ellen Prince as Vivienne June Carter has already been sufficiently financially provided for by Rosalie Ellen Prince and myself in previous years.
12 That document is signed by the plaintiff and dated 28 October 2002. Whether it was an attachment to the last will of Mr Grimster is neither here nor there. The second document is said to be an attachment to the will of the deceased. Otherwise it is in identical terms, it is signed by the plaintiff and it bears the same date as the earlier document.
13 Counsel for Ms Prince relied on these two documents for two purposes. First he submitted when considering delay on the part of the plaintiff there was really a delay of 12 years. As I understand the submission it was to the effect the plaintiff knew of the existence of the two documents and was prepared to allow the wills of her parents to stand and to that extent it could not have come as a surprise to her she was not provided for in the deceased's will.
14 In my view there is no warrant for suggesting there was a delay of 12 years. Even if the plaintiff was aware of the contents of the deceased's will there was nothing she could have done about it until the deceased died. What it does suggest is the plaintiff was less than frank in her first affidavit. In her second affidavit the plaintiff says she has no recollection of reading or signing the two documents although she does not suggest it is not her signature appearing on each of them. While the existence of the documents does call into question the plaintiff's explanation for the delay it is but one factor to be taken into account in determining the application.
15 The second submission made by counsel for Ms Prince was that given the existence of these two signed documents the plaintiff had no claim on the estate. Effectively that was an argument it was possible to contract out of the Act. If that argument is to be run there has to be a question as to whether or not the agreement was binding - for instance, was there adequate consideration for the agreement. While accepting some argument may be open on this issue and it may favour Ms Prince it is but one matter to be considered in the overall context of the application.
16 Leaving that question to one side at the moment and looking at the position of the plaintiff it is clear she has an arguable case. She is 58 years of age and earns approximately $50,000 per year. Her husband is employed part time and has a limited income. The couple's joint expenditure is very close to their total income. They have some equity in the home they own and a modest superannuation balance. They are certainly not so well placed as to make any claim on the estate unlikely.
17 It was then a matter of weighing these factors in the balance. As to delay it is not unreasonable to think the plaintiff was unaware she was not provided for in the will. She says she was unaware she had signed the documents referred to and given that happened 10 years ago it is possible. There is room for doubt upon this issue but on balance I am satisfied the delay is adequately explained. Once she did consult solicitors those solicitors should have acted more promptly. But even then the delay was no so egregious as to warrant putting the plaintiff out of court.
18 As to the merits of the claim I accept the plaintiff has an arguable case. There are impediments to her succeeding in the action. The signed acknowledgements will no doubt be taken into account. But the personal circumstances of the plaintiff are not such as to make it immediately apparent no claim will succeed. Given all I have to determine is whether or not she has an arguable claim I am satisfied she does.
19 None of the other criteria outlined in Clayton v Aust are factors in this application. On that basis I was satisfied it was in the interests of justice to grant the plaintiff the extension of time she sought.
20 The affidavits filed in this matter went into far more detail than was necessary to determine the application for the extension of time. The plaintiff's affidavits in particular really put before the court all of the matters that would be taken into account in determining any application. That was both unnecessary and unfortunate. The situation can be retrieved to an extent by ordering all the affidavits filed in this application stand as affidavits in any application which the plaintiff may lodge. The plaintiff sought a period of three weeks within which to lodge any application and I will order accordingly. The costs of this application should be reserved to the judge or master hearing any application lodged by the plaintiff. The plaintiff should bring in a minute of orders consistent with these reasons.
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