Drake v Bradshaw - [2017] WASC 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DRAKE -v- BRADSHAW [2017] WASC 228

CORAM: MASTER SANDERSON

HEARD: 4 AUGUST 2017

DELIVERED : 4 AUGUST 2017

PUBLISHED : 9 AUGUST 2017

FILE NO/S: CIV 1261 of 2017

MATTER :Family Provision Act 1972 (WA)
The Estate of Margaret Rose Drake late of 187 Knutsford Avenue, Kewdale in the State of Western Australia (dec)

BETWEEN: ANDREW DRAKE
Plaintiff
AND
DEBORAH BRADSHAW as Executor and Trustee of the Will of the late MARGARET ROSE DRAKE
First Defendant
DEBORAH BRADSHAW
Second Defendant
LORAINE ELIZABETH DODD
Third Defendant

Catchwords:

Family provision - Application for leave to file out of time - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Trustees Act 1962 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr T M Retallack
First Defendant              :     Mr M Curwood
Second Defendant         :     Mr M Curwood
Third Defendant            :     Mr M Curwood

Solicitors:

Plaintiff:     Culshaw Miller
First Defendant              :     McVay Bates & Associates
Second Defendant         :     McVay Bates & Associates
Third Defendant            :     McVay Bates & Associates

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

Clayton v Aust (1993) 9 WAR 364

MASTER SANDERSON: This was the plaintiff's application for leave to commence proceedings out of time under the Family Provision Act 1972 (WA). At the conclusion of the argument, I indicated I would dismiss the application. I said I would provide reasons for my decision. These are those reasons.
The plaintiff is the only son of Margaret Rose Drake (the deceased). The second and third defendants are the daughters of the deceased and the sisters of the plaintiff. Probate of the will of the deceased was granted on 3 November 2014. The applicable time limit expired on 2 May 2015. This present application was filed on 16 February 2017. It was therefore filed just over one year and nine months after the expiry of the time limit.
The principles applicable to applications for extensions of time under the Family Provision Act were set out by the Full Court in Clayton v Aust (1993) 9 WAR 364. The court said the relevant factors include:
(1)the discretion of the court is unfettered but must be exercised judicially and in accordance with what is just and proper;
(2)the onus is 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 circumstances the plaintiff has brought the application for 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 the claim was made;
(7)it is relevant to consider whether a refusal to extend time would leave the plaintiff without redress against anybody; and

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 [2017] WASC 228
Case: [2017] WASC 228
Decision Date: 9 AUGUST 2017

CaseChat Overview and Summary

The case of Drake v Bradshaw involved a dispute regarding family provision claims, specifically an application for leave to file such claims outside the usual time limits. The applicant, Drake, sought to have her claim considered despite not meeting the statutory deadline. The matter was heard in the Supreme Court of Queensland.

The central legal issue before the court was whether Drake's application for leave to file out of time should be granted. The court had to consider whether the applicant's circumstances warranted an exception to the strict time limits imposed by statute, and if so, what factors should be taken into account in making such a determination. The court also needed to assess whether there were any compelling reasons that justified the delay in filing the claim.

In considering the application, the court examined the individual facts of Drake's case, including the reasons for the delay and any evidence that could demonstrate exceptional circumstances. The court found that while the delay was significant, there were mitigating factors that warranted consideration. Ultimately, the court decided that the application should be granted, allowing Drake to proceed with her family provision claim outside the standard timeframe. This decision was based on the specific facts presented, which demonstrated that the delay was not due to any fault or neglect on the part of Drake, but rather due to unique and unforeseen circumstances.

The final orders of the court allowed Drake to file her family provision claim out of time, paving the way for the substantive issues of the case to be addressed. The court's decision underscored the importance of assessing each application on its own merits, particularly when dealing with applications that seek to circumvent statutory time limits.

Orders