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Frigger v Frigger

Frigger v Frigger

Case [2023] WASCA 103 17 July 2023

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   FRIGGER -v- FRIGGER [2023] WASCA 103
CORAM:   BUSS P
BEECH JA
HALL JA

HEARD:   23 JUNE 2023
DELIVERED          :   17 JULY 2023
FILE NO/S:   CACV 33 of 2022
BETWEEN:   ANGELA CECILIA THERESA FRIGGER
Appellant

AND

JESSICA ANN FRIGGER
First Respondent

PATRICIA HELEN FORSYTH-REID
Second Respondent

KEITH ASHLEY REID
Third Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
File Number            :   CIV 1887 of 2021

Catchwords:

Administration of deceased estate - Where appellant's claimed failure by executors to distribute jewellery of deceased - Where appellant claimed compensation for being excluded from a memorial service - Where proceedings dismissed by master - Whether appellant denied procedural fairness in primary proceedings by not being given an opportunity to make oral submissions - Whether master made an error as to nature of claims made by appellant - Whether master made an error regarding evidence - Where appellant's claims in primary proceedings were entirely without merit - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 58

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
First Respondent	:	In person
Second Respondent	:	In person
Third Respondent	:	In person

Solicitors:

Appellant	:	In person
First Respondent	:	In person
Second Respondent	:	In person
Third Respondent	:	In person

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

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383
Defendi v Szigligeti [2019] WASCA 115
Fairweather v Fairweather [1994] HCA 11; (1944) 69 CLR 121
Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Manktelow v The Public Trustee [2001] WASC 290; (2001) 25 WAR 126
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180
Mourish v Wynne [2009] WASC 85
Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301
Smith v Tamworth City Council (1997) 41 NSWLR 680
Spratt v Hayden [2010] WASC 340
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

JUDGMENT OF THE COURT:

This is an appeal against a decision of the master to dismiss proceedings brought by the appellant against her sister and brother (the second 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 Frigger v Frigger

Details

AGLC: Frigger v Frigger [2023] WASCA 103
Case: [2023] WASCA 103
Decision Date

CaseChat Overview and Summary

The appeal in this case was brought by Angela Cecilia Theresa Frigger against her sister and brother, Patricia Helen Forsyth-Reid and Keith Ashley Reid, who were appointed as executors of their mother's will. Frigger alleged that the executors had failed to distribute jewellery bequeathed to her and her daughter, and that they had excluded her from a memorial service. The proceedings were dismissed by a master, and Frigger appealed this decision. The appeal was dismissed by the Court of Appeal.

The legal issues before the court were whether the master provided procedural fairness to Frigger, whether the master misapprehended the nature of the claims made by Frigger, and whether the master made an error regarding the evidence. The court found that the master did not breach procedural fairness, that there was no misapprehension of the nature of the claims, and that the error regarding the evidence was minor and immaterial.

The court found that Frigger's claims were entirely without merit. The specific bequests of jewellery had failed by reason of ademption, as the identified items no longer formed part of the estate at the time of the testator's death. There was no legal duty on the executors to invite Frigger and her family to the memorial service, and the exclusion was due to long-held acrimony. The court found that the proceedings at first instance and on appeal were an abuse of process and should never have been brought.

The final orders of the court were that the appeal be dismissed and that the costs of the appeal be awarded against Frigger.

Orders