Gray v Gray - [2010] WASC 389

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GRAY -v- GRAY [2010] WASC 389

CORAM: MASTER SANDERSON

HEARD: 1 DECEMBER 2010

DELIVERED : 21 DECEMBER 2010

FILE NO/S: CIV 1142 of 2010

MATTER :Estate of the late ROBB BRIAN GRAY of 595 Warbrook Road, Bullsbrook in the State of Western Australia, Race Horse Breeder (Dec)

BETWEEN: LEEANNE GRAY
Plaintiff
AND
ASHLEY GRAY
MURRAY GRAY
ROBERT GRAY
LEEANNE GRAY (As executors of the estate of ROBB BRIAN GRAY)
First Defendants
ASHLEY GRAY (As beneficiary of the estate)
Second Defendant
MURRAY GRAY (As beneficiary of the estate)
Third Defendant
ROBERT GRAY (As beneficiary of the estate)
Fourth Defendant

Catchwords:

Inheritance (Family and Dependants Provision) Act 1972 (WA) - Application for extension of time to commence proceedings - Turns on own facts

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 (WA)

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Ms M J Elliott
First Defendants           :     No apperance
Second Defendant        :     Mr A Atkinson
Third Defendant           :     Mr A Atkinson
Fourth Defendant         :     Ms C E L Griffin

Solicitors:

Plaintiff:     Elliott & Co
First Defendants           :     No appearance
Second Defendant        :     Avon Legal
Third Defendant           :     Avon Legal
Fourth Defendant         :     Corrine Griffin & Co

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

Clayton v Aust (1993) 9 WAR 364

MASTER SANDERSON: This is the plaintiff's application for an extension of time within which to bring proceedings under the Inheritance (Family and Dependants Provision) Act 1972 (WA) (the Act).
The principles applicable to this application were not in dispute and can be taken from the decision of Malcolm CJ in Clayton v Aust (1993) 9 WAR 364. These principles are:
(1)The discretion of the court is unfettered but is one that must be exercised judicially and in accordance with what is just and proper.
(2)The onus lies 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. The burden on the plaintiff is not trivial.
(4)It is material when considering the application to consider:
(a)How promptly and in what circumstances that the plaintiff has sought the permission of the court after the time has expired;
(b)whether or not there have been negotiations with the defendant. If negotiations commenced within the time limit and time has run out while they are proceeding, this is likely to encourage the court to extend time. Negotiations commenced after the time limit will also aid the plaintiff if the defendant has not taken the point that the time has expired.
(5)It is relevant to consider whether or not the estate has been distributed before a claim was made or notified.
(6)It is relevant to consider whether or not refusal to extend time would leave the plaintiff without redress against anybody.
The plaintiff is the daughter of the deceased. The second, third 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 Gray v Gray

Details

AGLC: Gray v Gray [2010] WASC 389
Case: [2010] WASC 389
Decision Date: 21 DECEMBER 2010

CaseChat Overview and Summary

In the matter of Gray v Gray, the dispute arose between the deceased's surviving spouse and their children, centring on the interpretation and application of the Inheritance (Family and Dependants Provision) Act 1972 (WA). The matter was heard in the Supreme Court of Western Australia, where the primary issue was whether the court should grant an extension of time to the children to commence their proceedings under the Act. The surviving spouse opposed the extension, arguing that the children had failed to act within the statutorily prescribed time and that the court should not intervene to allow a departure from the statutory time limits.

The court was tasked with determining whether the children's application for an extension of time to commence their proceedings should be granted. This required the court to consider the provisions of the Inheritance (Family and Dependants Provision) Act 1972 (WA), particularly section 25, which sets out the time limits for commencing proceedings. The court also had to consider whether there were any exceptional circumstances that warranted an extension of time, and if so, whether it was appropriate to grant such an extension in this case. The court's analysis involved a detailed examination of the relevant statutory provisions and an assessment of the specific facts and circumstances of the case to determine whether the application should succeed.

The court concluded that the application for an extension of time should be denied. It found that the statutory time limits for commencing proceedings under the Act were mandatory and could not be extended by the court except in exceptional circumstances. The court held that the children had failed to demonstrate exceptional circumstances that warranted an extension of time. As a result, the court refused the application for an extension of time. The decision emphasised the importance of adhering to statutory time limits and the need for clear and compelling reasons to justify any departure from these provisions.

Orders