Gebremariam v Misghena Weldetsion Gebreyesus as executor of the estate of Melat Tewolde Habtemariam
[2019] WASC 174
•23 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: GEBREMARIAM -v- MISGHENA WELDETSION GEBREYESUS as executor of the estate of MELAT TEWOLDE HABTEMARIAM [2019] WASC 174
CORAM: ACTING MASTER WHITBY
HEARD: 16 MAY 2019
DELIVERED : 23 MAY 2019
FILE NO/S: CIV 1437 of 2018
BETWEEN: MULUGETA TAYE GEBREMARIAM
Plaintiff
AND
MISGHENA WELDETSION GEBREYESUS as executor of the estate of MELAT TEWOLDE HABTEMARIAM
TESFAYE MEKONEN ANBESSE as executor of the estate of MELAT TEWOLDE HABTEMARIAM
First Defendants
GIDEON MULUGETA TAYE by guardian ad litem SIMRET TEWOLDE HABTEMARIAM
Second Defendant
BEMNET MULUGETA TAYE
Third Defendant
SEBLE MUSASGHI
Fourth Defendant
Catchwords:
Extension of time, application for - Application for provision out of estate - Justice of the case - Family Provision Act 1972 (WA) s 7(2)(b) - Grant of leave pursuant to Inheritance (Family and Dependants Provision) Act 1972 (WA) s 7(2)(b) - Plaintiffs arguable case on the merits - Delay - Family Provision Act 1972 (WA) s 7(2)(a)
Legislation:
Family Provision Act (1972) (WA), s 7(1), s 7(2)(a), s 7(2)(b)
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 7(2)(b)
Result:
Application Granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Rachel Cosentino |
| First Defendants | : | Louella Morgan McFarlane |
| Second Defendant | : | Michele Ann Kershaw |
| Third Defendant | : | Merle Ruth Bloch |
| Fourth Defendant | : | Marcia Jane Jarvis |
Solicitors:
| Plaintiff | : | Slater & Gordon Lawyers |
| First Defendants | : | MCFARLANE LAWYERS |
| Second Defendant | : | Kershaw Legal |
| Third Defendant | : | Merle Block Barrister & Solicitor |
| Fourth Defendant | : | Jarvis Nixon Legal Pty Ltd |
Case(s) referred to in decision(s):
Clayton v Aust [1993] WASC 192
Re Dennis (Dec) [1981] 2 All ER 140
Re Salmon (Dec) [1981] Ch 170
ACTING MASTER WHITBY:
This is the plaintiff's originating summons pursuant to s 7(2)(b) of the Family Provision Act 1972 (WA) (the Act) for an extension of time to make an application for provision out of the estate of the Melat Tewolde Habtemariam (the Deceased) pursuant to s 7(1) of the Act.
The Deceased died on 23 April 2017.
The plaintiff was the Deceased's husband.
The second defendant, Gideon Mulageta Taye (Gideon), is 9 years old and the son of the plaintiff and the Deceased. Simret Tewolde Habtemariam, the sister of the Deceased, acts as guardian ad litem for Gideon.
The third defendant, Bemnet Mulugeta Taye (Bemnet), is 20 years old and the daughter of the plaintiff and the Deceased.
The fourth defendant, Seble Musasghi (Seble), is the mother of the Deceased.
Probate of the will of the Deceased (the Will) was granted to the first defendant on 16 June 2017.
By her Will, the Deceased bequeathed her residuary estate as follows:
(a)45% to Gideon provided he attains the age of 30 years old;
(b)35% to Bemnet, provided she attains the age of 30 years old; and
(c)20% share to Seble, provided she survives the Deceased.
Pursuant to s 7(2)(a) of the Act, the plaintiff was required to make any application for provision out the estate of the Deceased (Provision Application) by 16 December 2017.
On 13 March 2018, the plaintiff filed an originating summons seeking an extension of time to make the Provision Application.
The Plaintiff relied upon the following in support of the Provision Application:
(a)Affidavit of Mulugeta Taye Gebremariam sworn 9 March 2018 (Plaintiff's Affidavit);
(b)Affidavit of Bibi Amidzic sworn 18 April 2019 (Amidzic Affidavit); and
(c)Outline of Written Submissions dated 18 April 2019.
The first defendant has indicated that she will abide by the decision of the court.
The second, third and fourth defendants oppose the Provision Application and rely upon a Written Outline of Submissions dated 6 May 2019.
Legal Principles
Section 7(2)(b) of the Act provides:
(2)No application under subsection (1) shall be heard by the Court unless –
…
(b)the Court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.
Accordingly, the overriding factor when considering whether leave should be given to the plaintiff to file the Provision Application out of time is the 'justice of the case'.
In Clayton v Aust[1] Malcolm CJ, with whom Rowland and Franklyn JJ agreed, set out relevant, although not exhaustive, principles to be applied in considering whether leave ought be granted pursuant to s 7(2)(b) of the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the predecessor to the Act and in identical terms to the same section in the Act):[2]
(a)the discretion is unfettered. The discretion is to be exercised judicially, and in accordance with what is just and proper;
(b)the onus lies on the plaintiff to establish grounds to justify the granting of leave. As the time limit is a substantive, not just a procedural, provision, the plaintiff must make out a substantial case for the just and proper exercise of the court's discretion. In considering whether the plaintiff has discharged the onus, a relevant question for consideration is 'does the [plaintiff] have an arguable case on the merits?';
(c)how promptly and in what circumstances did the plaintiff seek leave? Any delay and reason for delay in seeking leave is a relevant consideration;
(d)whether the plaintiff had entered into negotiations with the beneficiaries prior to the time limit expiring. If negotiations had been entered into, the court is likely to exercise its discretion in favour of extending time;
(e)whether or not the estate has been distributed before the claim was made or notified; and
(f)whether a refusal to extend time would leave the plaintiff without redress against anyone.
[1] Clayton v Aust [1993] WASC 192 (Clayton v Aust), 366 – 367.
[2] Citing with authority the case of Re Salmon (Dec) [1981] Ch 170, 175.
Does the plaintiff have an arguable case?
In Re Dennis (Dec)[3] Browne‑Wilkinson J held that the applicant had to show an arguable case which equated to:
[A] case fit to go to trial. The test being similar to that adopted when considering whether a defendant on a summary judgment application ought to have leave to defendant in proceedings for summary judgment.
[3] Re Dennis (Dec) [1981] 2 All ER 140, 145, cited with authority in Clayton v Aust, 368.
In Clayton v Aust, Malcolm CJ said:
In my opinion, the question whether the appellant has an arguable case on the merits must be answered against the background of the text formulated by Salmond J in Re Allen (deceased) 1922] NZLR 218 at 2210-221, who said:
'The Act is … designed to enforce the moral obligation of a testator to use his testamentary powers for the purpose of making proper and adequate provision after his death for the support of his wife and children, having regard to his means, to the means and desserts of the several claimants, and to the relative urgency of the various moral claims upon his bounty. The provision which the court may properly make in default of testamentary provision is that which a wise and just father would have thought it his moral duty to make in the interests of his widow and children had he been fully aware of the relevant circumstances.'
I am not required to, in fact I must not, assess whether the plaintiff's claim is strong or weak. The plaintiff's claim is only required to be 'arguable'.[4]
[4] Clayton v Aust, 370.
The Will makes no provision for the plaintiff.
The plaintiff was the Deceased's husband. The plaintiff and the Deceased were married in Kenya on 8 October 2004.[5] The plaintiff migrated to Australia on 18 February 2005 and he and the Deceased resided together from then until the Deceased's death.[6]
[5] Plaintiff's Affdiavit par 45.
[6] Plaintiff's Affidavit par 46.
The Deceased and the plaintiff had joint bank accounts. Both of the Deceased's and plaintiff's wages went into their joint accounts, from which their expenses were also withdrawn.[7]
[7] Plaintiff's Affidavit par 58.
The plaintiff's native language is Amharic. English is his second language and has been spoken by him since 2005.[8]
[8] Plaintiff's Affidavit par 11.
The plaintiff's hearing has deteriorated as result of his working in the air force in Ethiopia for two years.[9]
[9] Plaintiff's Affidavit pars 62 – 64.
The plaintiff worked as a taxi driver and as a cleaner prior to being a carer for his children when the Deceased became ill.[10] Since the onset of the Deceased's illness the plaintiff has been receiving Centrelink payments.[11]
[10] Plaintiff's Affidavit par 66.
[11] Plaintiff's Affidavit par 68.
The plaintiff does not have any savings and does not have any assets, other than a 2006 Toyota Rav 4 and basic household items.[12]
[12] Plaintiff's Affidavit par 70.
The plaintiff has 50% custody of Gideon.[13]
[13] Plaintiff's Affidavit par 71.
The second, third and fourth defendants submit that the plaintiff has provided insufficient, or no evidence of his financial situation at the date of death of the Deceased or at the date of this application such that the court is unable to determine whether the plaintiff has an arguable case on the merits.
In my view, given the consideration is not whether the plaintiff's case is strong or weak but whether it is arguable, I am satisfied on the evidence before me that the plaintiff's case is clearly an arguable one.
Delay and reasons for delay
Pursuant to s 7(2)(a) of the Act, the plaintiff was required to make the Provision Application by 16 December 2017.
On 13 March 2018, the plaintiff filed an originating summons seeking an extension of time to make the Provision Application.
The plaintiff deposes that the delay in commencing these proceedings occurred because:
(a)he did not become aware of the contents of the Will and the grant of probate in relation to the Will until 13 October 2017 when he received copies of both from the Supreme Court;[14]
(b)he incorrectly believed that the date of the grant of probate of the Will was 13 October 2017 (the date he had received a copy from the Supreme Court), rather than the 16 June 2017 (the actual date the grant of probate was made);
(c)he unsuccessfully attempted to obtain legal advice and representation between November and mid‑December 2017;
(d)around 15 December 2017 he was advised by Slater & Gordon Lawyers (Slater & Gordon) that there was a six month period for commencing proceedings. He thought that the six months ran from the 13 October 2017 (the date he had received a copy of the grant of probate from the Supreme Court);
(e)his focus was on dealing with an application commenced by Bemnet in the Family Court of Western Australia for custody of Gideon. He opposed that application and was involved in litigation and mediation to resolve the dispute over Gideon's custody.[15]
[14] Plaintiff's Affidvait pars 15 – 18.
[15] Plaintiff's Affidavit pars 27 – 33.
Counsel for the plaintiff submits that the following factors are also relevant to delay:
(a)notice was given, at least to the first defendants, of the plaintiff's Provision Application by 15 December 2017 when Slater & Gordon advised the first defendants that the firm was obtaining instructions about a possible claim.[16] A letter from the solicitors for the estate of the Deceased indicates that notice of a potential Provision Application may have been given to the first defendant in mid‑October 2017;[17] and
(b)the plaintiff was engaging in a mediation process with elders in the Ethiopian community to resolve issues of the estate of the Deceased and Gideon's custody from December 2017 to February 2017, in an attempt to avoid court proceedings.[18]
[16] Amidzic Affidavit par 4.
[17] Amidzic Affidavit at Annexure 'BA3'
[18] Plaintiff's Affidavit par 27 - 33.
Counsel for the second, third and fourth defendants submits that the plaintiff fails to explain the reasons for the delay in instituting these proceedings, the application for leave and pursuing them to hearing. The relevant chronology is:
(a)these proceedings were commenced on 13 March 2018;
(b)on 10 May 2018, Registrar Davies made orders that the defendants file and serve any affidavits by 31 May 2018 and that the matter otherwise be referred to the Master for hearing; and
(c)on 21 March 2019, the solicitors for the plaintiff send an email to the Court requesting the matter be listed for hearing.
Counsel for the parties were unable to refer me to any cases which considered the issue of delay in pursuing proceedings for leave through to hearing.
Given that the relevant principles outlined in Clayton v Aust[19] are not exhaustive and the discretion is unfettered, I find that the plaintiff's delay in pursuing the proceedings is a factor I ought take into account.
[19] Clayton v Aust, 366 – 367.
However, given that the relevant date at which the plaintiff must establish he has an arguable case is the date of death of the Deceased, in the absence of any other evidence before me, I consider that no substantial prejudice is suffered by the defendants as a result of the plaintiff's delay in prosecuting these proceedings.
In all the circumstances, I am of the view that the delay in commencing the proceedings and the subsequent delay in prosecuting the proceedings, is not so inordinate as to weigh against the granting of leave to commence the Provision Application.
Estate has not been distributed
Counsel for the first defendant confirmed that a significant portion of the estate has not been distributed (leaving the net value of the estate of the deceased estimated at $971,000).[20]
[20] ts 9.
Plaintiff left without redress if the leave not granted
It is not in dispute that, in the absence of an extension of time, the plaintiff will be left without redress against anybody.
Justice of the case
Given that:
(a)the plaintiff has an arguable case;
(b)the delay in commencing these proceedings is sufficiently explained by the plaintiff and, in any event, the delay in commencing and prosecuting these proceedings is not so inordinate as to be a factor against the granting of an extension of time to commence the Provision Application;
(c)a substantial portion of the estate of the deceased has not been distributed; and
(d)the plaintiff will be left without redress against anybody if the extension of time is not granted,
I find that the justice of the case requires the plaintiff be given leave to file the Provision Application out of time.
I will hear the parties as to final orders and costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Associate to Acting Principal Registrar Whitby23 MAY 2019
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