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 fourth defendants are her siblings. The deceased died on 1 March 2003. He left a Will dated 29 September 2001. Probate of that Will was granted on 27 May 2003. All of the deceased's children are named as first defendants to this action as they are all executors of the deceased's estate appointed under the Will.
Under the provisions of the Act the time for bringing this application would have expired on 28 November 2003. The application for an extension of time was filed on 2 February 2010 - just under 6½ years out of time.
The deceased's Will is a difficult document and there may in due course be proceedings as to its proper interpretation. However, for present purposes, it is enough to adopt what was said by the plaintiff in her affidavit of 27 January 2010 about the property of the deceased at the date of his death and the disposition of that property pursuant to the Will. There was no serious challenge to this evidence by the defendants.
The deceased had a superannuation policy to the value of $48,000. That amount was paid to the plaintiff. The deceased held shares in Wesfarmers Ltd to the value of $144,000. These passed to the second, third and fourth defendants.
The deceased owned a property at Cooper Road, Bullsbrook. As at the date of death this property was said to be valued at $300,000. It passed to the second, third and fourth defendants.
The deceased owned a property at Warbrook Road, Bullsbrook which was said to have a value of $700,000 as at the date of death of the deceased. Ostensibly that property passed to the plaintiff and her three siblings although it was subject to various conditions contained in the Will.
The deceased also owned a second property in Warbrook Road, Bullsbrook valued at the date of death at $411,000. Again this passed to the four children but again it was subject to various conditions.
A business known as Range View Stud was essentially passed to the third and fourth defendants. Again this was subject to certain conditions. Quite what the value of that business may have been is not evident from the evidence and is probably irrelevant.
All in all the deceased's estate was not insubstantial. The statement of assets and liabilities provided for probate purposes show net assets of just over $2 million. By far the bulk of these assets is made up of the three properties in Bullsbrook.
In or about late 2004 Roma Gray, the wife of the deceased, commenced proceedings for an extension of time to bring proceedings under the Act. The plaintiff was served with these proceedings. In late 2005 the parties attended a mediation conference. The plaintiff was accompanied by solicitors. The matter was settled and Roma Gray was paid an amount of $237,054. Essential, this was the proceeds of the sale of the Wesfarmers Ltd shares. The plaintiff did not contribute anything to the settlement but the Deed of Family Arrangement which was entered into protected her interests from further claim by Roma Gray.
None of the properties has been transferred out of the name of the deceased and into the names of the beneficiaries. Quite why this has not been done does not emerge from the evidence. In any event, it seems the estate has not been distributed. It also means the plaintiff has not had the benefit of her contingent interests in the two Bullsbrook properties passing to her.
It is clear all three Bullsbrook properties have increased substantially in value. Quite what they might now be worth is difficult to ascertain from the evidence. They have some subdivision potential and this might have a significant effect on their value. During the course of his submissions counsel for the second and third defendants agreed the estate might now have a value of up to $7 million.
Turning then to the applicable criteria it has to be said the delay in bringing this application is substantial. That was acknowledged by counsel for the plaintiff. Moreover, the plaintiff must have been aware of the relevant time limits applicable under the Act and must have turned her mind to whether or not she might have a claim under the Act against the estate. After all she was involved directly in negotiations with Roma Gray. She was represented by solicitors and this representation was separate from the representation of her siblings.
In her first affidavit the plaintiff does not deal to any extent with what advice she was given about any entitlements she might have had. The plaintiff swore a supplementary affidavit on 11 June 2010. At par 23 through to 31 she deals in a rather oblique way with what advice she was given by her solicitor. It would seem the advice was to the effect, if a claim were brought, it had limited chances of success. It is now some years since the advice was rendered and perhaps the plaintiff's recollection of what took place has faded. It must be said her evidence on this point is less than satisfactory. It lacks precision. All that can be said is she received advice, and based upon that advice and other personal factors, she decided not to pursue a claim.
There is very little in the plaintiff's evidence which provides further explanation for the delay in bringing this application. During the course of her submissions counsel for the plaintiff blamed the intransigence of the second and third defendants and their alleged poor treatment of the plaintiff for the plaintiff not taking any proceedings. The evidence does disclose a level of animosity between the plaintiff and the second and third defendants. But the plaintiff had an entitlement under the Will. There is no explanation as to why she did not seek to have her interests in the relevant Bullsbrook properties transferred to her. She clearly has limited means. But her position would have been improved immeasurably had she done nothing more than insist upon her entitlement. In any event, none of that goes to explain why she left it until January 2010 to seek an extension of time to bring proceedings.
In September 2009 the plaintiff suffered a stroke. It is implicit in her evidence the fragile state of her health prompted her to consider again an application under the Act. In other words, a change of circumstance some six years after the time limit had expired was a catalyst for bringing this application. In my view, that could never be an adequate explanation for the delay. An application under the Act requires a court to determine whether, as a the date of the death of the deceased, adequate provision had been made for the claimant. An event which occurs more than six years after the death of the deceased could have no bearing on whether or not a claim would succeed.
The length of the delay in this case and the inadequate explanation for the delay is, in my view, an overwhelming reason why an extension ought not be granted. As Clayton v Aust made plain, the time limit in the Act is substantive and not merely procedural. The burden is not trivial and in my view, in this case, the plaintiff has entirely failed to discharge that burden.
It is appropriate to consider the other criteria applicable to an application such as this to see whether there is some other factor which might operate in the plaintiff's favour. Perhaps most obviously, the estate has not been distributed. No beneficiary has acted to his or her detriment based upon an assumption no claim will be made. That is a factor which does favour the plaintiff.
It is not clear whether the refusal to grant an extension of time would leave the plaintiff without remedy. Assuming she was given negligent advice by her solicitors when dealing with the application by Roma Gray, it may now well be the case any action was statute‑barred. Even if it was not, bringing an action against her former solicitors so long after the event would be fraught with difficulty. For the purposes of this application I am prepared to assume if leave is refused the plaintiff will be left with no redress against any other party. That is a factor which operates in her favour.
In an application such as this it is not appropriate to undertake any significant analysis of the merits of the plaintiff's claim. It is also difficult on the state of the evidence to work out whether or not a claim brought within time would have succeeded. For the purposes of this decision I am prepared to assume the plaintiff would have an arguable case - not that she would succeed in any action but her case is arguable. In my view, the position can be put no higher. This is a factor in favour of the plaintiff.
There is no question about negotiations with respect to any claim the plaintiff might have having being commenced within the time period. There have been some negotiations with the second and third defendants' solicitors in recent years and prior to the issue of this application. But that is not a relevant factor in explaining to any extent the delay which has occurred.
On balance, then, I am satisfied the overwhelming consideration is the length of the delay. Weighed in the balance with other factors in the plaintiff's favour I am not satisfied there ought be a grant of leave to commence proceedings. I would dismiss this application. I will hear the parties as to costs.