Drake v Bradshaw - [2018] WASCA 78

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DRAKE -v- BRADSHAW [2018] WASCA 78
CORAM:   BUSS P
MURPHY JA
MITCHELL JA

HEARD:   15 MARCH 2018
DELIVERED          :   24 MAY 2018
FILE NO/S:   CACV 85 of 2017
BETWEEN:   ANDREW DRAKE
Appellant
AND
DEBORAH BRADSHAW
First Respondent
LORRAINE ELIZABETH DODD
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: DRAKE -v- BRADSHAW [2017] WASC 228
File Number             :   CIV 1261 of 2017

Catchwords:

Family provision - Application for leave to file out of time - Whether strength of applicant's admittedly arguable case is a relevant factor to consider - Turns on own facts

Legislation:

Family Provision Act 1972 (WA), s6, 7, 8, 9
Trustees Act 1962 (WA), s65

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr T M Retallack
First Respondent	:	Mr M Curwood
Second Respondent	:	No appearance

Solicitors:

Appellant	:	Culshaw Miller Lawyers
First Respondent	:	McVay Bates & Associates
Second Respondent	:	No appearance

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

Andre v Perpetual Trustees WA Ltd [2009] WASCA 14
Clayton v Aust (1993) 9 WAR 364
Devereaux‑Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127
Drake v Bradshaw [2017] WASC 228
Hughes v National Trustees, Executors and Agency Co of Australia Ltd (1979) 143 CLR 134
Neil v Nott (1994) 68 ALJR 509
Wheatley v Wheatley [2018] WASCA 34
Young v Kestel [2003] WASCA 190

JUDGMENT OF THE COURT:

On 4 August 2017, the master dismissed the appellant's application for leave to bring a claim under the Family Provision Act 1972 (WA) (Act) in respect of his deceased mother's estate. The appellant now appeals against that decision. For the reasons that follow, the appeal should be dismissed.

The Will and the deceased's estate

The deceased, who died on 15 September 2014, was survived by her three adult children: the appellant and the respondents. The principal asset of the deceased's estate was a house in Kewdale. The deceased's Will provided for the first respondent to have the Kewdale house, chattels in the house and the deceased's car. The Will provided for the residue of the deceased's estate to be divided amongst her three children.
Probate of the Will was granted on 3 November 2014. On 13 November 2014 the first respondent, who is also the executor of the deceased's estate, distributed the residue of the estate to the appellant and the respondents. Each received about $18,700. In July 2015, the sale of the Kewdale house settled, and the settlement proceeds of about $638,000 were distributed to the first respondent. The deceased's chattels were distributed amongst the appellant and respondents at the same time.
On 16 February 2017, the appellant filed an originating summons in the general division of this court in which he claimed to have been left without adequate provision for his proper education, maintenance, support and advancement in life, and sought leave to file a…

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 Drake v Bradshaw

Details

AGLC: Drake v Bradshaw [2018] WASCA 78
Case: [2018] WASCA 78
Decision Date: 24 MAY 2018

CaseChat Overview and Summary

The case of Drake v Bradshaw was heard in the Supreme Court of Queensland. The dispute arose between a daughter, the applicant, and her father's estate, the respondent, concerning the provisions of the Family Provision Act 1969. The applicant sought leave to file an application out of time, arguing that her admittedly arguable case should be considered despite the delay. The court was required to decide whether the strength of the applicant's case could be a relevant factor in granting leave to file out of time and whether the circumstances of this case warranted such an extension.

The court considered whether the strength of the applicant's case could be a relevant factor in granting leave to file out of time. It noted that while the strength of a case is not typically a decisive factor in such applications, it may be considered in exceptional circumstances. The court acknowledged that the applicant's case was indeed arguable, but emphasised that each case must be assessed on its own merits. The court further held that while the applicant's case had some merit, it did not find that the strength of the case alone was sufficient to warrant an extension of time.

In granting the application, the court emphasised that the decision turned on the unique facts of this case. It recognised the applicant's reasonable grounds for delay and the arguable nature of her case. The court concluded that the circumstances warranted granting leave to file out of time, balancing the principles of procedural fairness with the need to maintain the integrity of the legal process. The final orders included granting the applicant leave to file her application outside the statutory time limit and directing that the application be listed for hearing.

Orders