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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DE CAMPO -v- DAWSON

Details

AGLC: De Campo v Dawson [2015] WASC 233
Case: [2015] WASC 233
Decision Date: 2 JULY 2015

CaseChat Overview and Summary

The case of De Campo v Dawson was heard in the Supreme Court of Western Australia. The applicant, De Campo, sought an extension of time to bring an action under the Family Provision Act 1972 (WA) against the executors of her father's estate, the respondents. The primary issue before the court was whether the application for an extension of time was to be assessed based on the statutory criteria of the Act or whether the equitable principles of delay and prejudice should be applied.

The court held that the application should be evaluated under the statutory criteria of the Act, rather than the equitable principles. The court noted that the statutory provisions provide a specific framework for determining applications for extensions of time, and that these should be given precedence over the common law principles. The court found that the applicant had provided sufficient evidence to satisfy the statutory criteria, and accordingly, the application for an extension of time was granted.

The court's decision was based on a careful consideration of the statutory provisions and the principles of statutory interpretation. The court found that the language of the Act was clear and unambiguous, and that there was no need to resort to the common law principles. The court also noted that the equitable principles of delay and prejudice were not intended to be a substitute for the statutory provisions, but rather to be used in cases where the statutory provisions were not applicable.

The final orders of the court were that the applicant's application for an extension of time was granted, and that the respondents were directed to pay the applicant's costs of the application.

Orders