DE CAMPO -v- DAWSON - [2015] WASC 233

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DE CAMPO -v- DAWSON [2015] WASC 233

CORAM: MASTER SANDERSON

HEARD: 17 JUNE 2015

DELIVERED : 2 JULY 2015

FILE NO/S: CIV 2521 of 2014

MATTER :Family Provision Act 1972 (WA)
Estate of Rosina Gisella De Campo

BETWEEN: ROSANNA DE CAMPO
Plaintiff
AND
MICHAEL COLIN DAWSON as Executor of the Estate of ROSINA GISELLA DE CAMPO
First Defendant
GEROLAMO DE CAMPO
Second Defendant

Catchwords:

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

Legislation:

Family Provision Act 1972 (WA)

Result:

Extension of time granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr S Penglis
First Defendant             :     Not applicable
Second Defendant         :     Dr P R MacMillan

Solicitors:

Plaintiff:     Fletcher Law
First Defendant             :     Not applicable
Second Defendant         :     Valenti Lawyers

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

Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109
Vigolo v Bostin [2001] WASC 335
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Young v Kestel [2003] WASCA 190

MASTER SANDERSON: This was the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA). Probate of the will of the deceased was granted on 28 January 2014. The action had to be commenced by 27 July 2014. This application for an extension of time was filed on 4 November 2014.
There was no dispute between the parties as to the principles upon which the discretion to extend the time for commencing an action was based. Both parties referred to the decision of Clayton v Aust (1993) 9 WAR 364. Both parties also agreed that for the purposes of this application there were three relevant questions. First, the reason for the length of the delay in making the application. Second, whether the plaintiff had an arguable case on the merits. Third, whether an extension would significantly prejudice the defendants.
The plaintiff and the second defendant are the only two beneficiaries of the will of Rosina Gisella De Campo (deceased). The will contains references to two properties namely a farming property at Great Northern Highway, Bindoon and a commercial property at 35 Cheriton Street, Perth. Under the will of the deceased the Bindoon property was bequeathed to the plaintiff. However, during the lifetime of the deceased she gifted the property to the second defendant. The Cheriton Street property was bequeathed to the second defendant.
On the plaintiff's case, in late November 2013, the plaintiff and the second defendant reached an agreement that the deceased's estate would be distributed otherwise than in accordance with the will. Throughout his submissions counsel for the plaintiff referred to this alleged agreement as 'the agreement'. Without in any way determining there was in fact a binding agreement reached that is the terminology that I will adopt. The plaintiff says the agreement obviated any need for the plaintiff to bring a claim under the Act. Under the terms of the agreement the Cheriton Street property was to become part of the residual estate of the deceased which under the will was to be divided equally between the plaintiff and the second defendant.
The plaintiff says between November 2013 and October 2014 the agreement was partially carried into effect by the partial distribution of the deceased's estate in accordance with the terms.
By letter dated 10 October 2014 the plaintiff was informed that the second defendant was no longer prepared to comply with the terms of the agreement and required the will to be administered according to its terms. It is the second defendant's position any agreement he reached with the plaintiff was subject to his obtaining legal advice. Having obtained legal advice he determined not to enter into the agreement. Although the plaintiff says there was a binding agreement which had been partially performed she has determined not to seek to enforce that agreement but rather to take proceedings under the Act.
Once the plaintiff became aware the second defendant did not intend to pursue the agreement she took action promptly. A review of the correspondence passing between the plaintiff's solicitors and the second defendant's solicitors make it plain the plaintiff could not at any stage have anticipated the second defendant would not honour (or on the second defendant's case) enter into the agreement. There can be no suggestion once the plaintiff found out there would be no effective agreement she acted promptly.
This is a case where the reason for the delay has been more than adequately explained. Clayton v Aust makes it plain it is relevant when considering an application to extend time to consider whether or not the parties were engaged in negotiations to settle the claim. Here the plaintiff reasonably thought the claim had been settled. In my view the circumstances of the delay make the case for granting an extension overwhelming. But that is not enough. What the second defendant here argued was the plaintiff did not have an arguable case on the merits.
In Clayton v Aust the learned master at first instance examined the merits of the action by reference to the affidavits filed by the parties and dismissed the application. Malcolm CJ dealt with that approach in this way:
It is apparent that, in determining whether the appellant had an arguable case, the learned Master took into account the case which would be made against him and appears to have concluded that the conflict of evidence on the affidavits was likely to be resolved against the appellant. In my opinion, with respect, the learned Master was not entitled to adopt this approach in a situation where the evidence of the respective deponents had not been tested by cross‑examination. In determining the question in this way and in approaching the matter on the basis that the appellant's case was weak or barely arguable, I am of the opinion that the learned Master erred in the exercise of his discretion (369).
After examining a number of authorities in some detail the learned chief justice concluded:
In my opinion, the learned Master should have held that the appellant had made out an arguable case. That is not to say that it was a case which had to be categorised as strong or weak. It was enough that it was arguable (370).
That statement of principle has consistently been followed. For instance EM Heenan J in Young v Kestel [2003] WASCA 190 [79] said:
It has been established that the statutory time limit is a substantive provision laid down by the Act itself and is not merely a procedural time limit so that the burden on the applicant for an extension of time is to make out a substantial case that it is just and proper for the court to exercise its statutory discretion to extend time; Re Salmon [1981] Ch 167 at 175 and Clayton v Aust (1993) 9 WAR 364 at 366. The discretion is unfettered. There are no restrictions or requirements of any kind laid down by the Act but the onus lies on the applicant to establish sufficient grounds for taking the case out of the general rule and depriving those who are protected by it of its benefits: Re Ruttie [1970] 1 WLR 89 at 93. While it is necessary for the court to be satisfied that the applicant has an arguable case it is not part of the function of the court on an application for the extension of time, once an arguable case has been revealed, to evaluate the strength or weakness of that case. The whole of the circumstances of the delay must be looked at including the promptitude with which the claimant gave warning to the defendants of the proposed application. However, there is no limit to the length of the extension which a court may grant in appropriate circumstances and, in what are no doubt exceptional cases, an extension of 14 years was granted in Easterbrook v Young (1977) 136 CLR 308; an extension of 16 years in Re Claverie (dec) (1970) 2 NSWLR 380 and an extension of 18 years was granted in the Estate of Barry (dec); Circosta v Executor Trustee & Agency Co South Australia (1974) 9 SASR 439.
It may of course be the case that an examination of the merits of the plaintiff's claim will lead to the conclusion the case is not arguable. That was the conclusion reached by Mitchell J in Craig v Craig [2015] WASC 109. Whether that case goes further than determining whether or not there is an arguable case is open to question. His Honour referred to Clayton v Aust and the proper test to be applied. He was doubtless mindful of what Malcolm CJ had to say. His Honour then made a series of assumptions most favourable to the plaintiff. That contrasts with the position in Clayton v Aust where the learned master had considered the affidavit evidence and determined certain matters were likely to be found against the plaintiff. It is safe to assume I think the decision in Craig v Craig does not alter established principle - indeed it could not do so as it is a decision at first instance. Nonetheless the second defendant advanced an argument that the plaintiff's case was so weak leave should not be granted.
The plaintiff maintained she had an arguable case under the Act. She relied on a number of different factors. First, she said over many years she provided unpaid or lowly paid labour to support the De Campo bakery family business which was conducted from the Cheriton Street property and was the major asset of the deceased's estate. Appearing as a schedule to the plaintiff's outline of submissions was an annexure which set out the plaintiff's contribution to the business. This in turn was drawn from the supplementary affidavit of the plaintiff sworn 10 December 2014 and filed in support of the application. It is unnecessary for me to repeat what is contained in that schedule. Suffice it to say the plaintiff alleges from age 6 until she was approximately 32 she worked at the bakery for either no pay or a nominal wage. She gradually became more heavily involved in the management of the bakery. It was only when she left in 1997 and the second defendant took over management of the business that the business became insolvent.
Second, in 2001 the plaintiff paid $200,000 from her own funds to ensure the deceased did not default under a settlement deed the deceased had entered into with the National Australia Bank. The second defendant did not make such a contribution.
Third, in 2003 the plaintiff and the second defendant (and their other sibling) effectively gifted to the deceased part of their statutory entitlements to the distributions upon the finalisation of the liquidation of De Campo Holdings Pty Ltd. That assisted the deceased in acquiring the Cheriton Street property in the liquidation of the company.
Fourthly, it was submitted that as the will included provision for the plaintiff having no effect (as the asset to go to the plaintiff was gifted to the second defendant during the lifetime of the deceased) this goes to establishing an arguable case on the merits. No authority was cited for that proposition and counsel for the plaintiff admitted none had been found. How an ineffective disposition to the plaintiff made under the will factors into a claim under the Act is in my view a matter of real conjecture.
The second defendant says the evidence establishes the plaintiff and her husband have assets well in excess of $9 million. By reference to the various affidavits filed in this application counsel for the second defendant was able to make good that argument. The position was set out in detail in par 20 ‑ 36 of counsel's submissions. No issue was taken by the plaintiff with any of the second defendant's submissions on this aspect of the claim. It is also to be noted the second defendant has assets of approximately $7 million. Clearly neither party is destitute.
Counsel for the second defendant maintained the plaintiff as an adult of substantial means would not be able to satisfy the jurisdictional question and establish the will of the deceased did not make adequate provision for the needs of the deceased. Particular emphasis was placed on the decision of the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191.
With his customary thoroughness counsel for the second defendant canvassed the relevant authorities particularly those in Western Australia and in New South Wales. Counsel concluded, based upon the evidence as it stands, the plaintiff has a moral claim only and such a claim standing alone was insufficient. He referred again to the Vigolo decision. Counsel for the plaintiff disputed that was a correct interpretation of the High Court decision. To justify that argument counsel referred at some length to the decision of McLure J at first instance in Vigolo: Vigolo v Bostin [2001] WASC 335.
It is unnecessary for me to resolve that dispute. It is sufficient if I say I am satisfied the plaintiff's case is arguable. I do that for at least three reasons. First, there is the compromise agreement. Quite what effect that has on the outcome of an application such as this is I think open to question. But it is arguable it amounts to a concession on the part of the second defendant that the plaintiff has a claim. Second, the plaintiff was provided for by the deceased in the will but the subject property was transferred inter vivos. Again, it is arguable this may be a factor in determining the plaintiff's claim. Finally, a good deal of evidence has been led by each party about their respective contributions to the estate. In my view that evidence requires detailed examination and doubtless there will be cross‑examination. This is not a case where if assumptions are made on the affidavit evidence which are favourable to the plaintiff the position is so clear that the matter could be resolved summarily. It requires a full hearing.
There was no suggestion by the second defendant an extension of time would prejudice his position.
Even if it had been the case the plaintiff had a barely arguable or just arguable case, perhaps even a weak case, it still seems to me leave should be given to bring this application. It is clear the action was not brought because the plaintiff believed the dispute between the parties had been settled. She says, and there is no reason to doubt, if she had not thought that she would have issued proceedings. There is no capacity to grant summary judgment if an action is properly brought under the Act. To now impose some test as to the strength or otherwise of the plaintiff's claim in circumstances where she was genuinely working under a misapprehension would be unreasonable and unfair.
For these reasons I am satisfied the extension of time sought ought be granted. The parties should file brief submissions as to costs if no agreement on this issue can be reached.