BETWEEN: FAY GRIGORIOU
Applicant (Plaintiff)
AND
GEORGE NITSOS (As Executor of the Estate of Athanasois Nichos)
First Respondent (First Defendant)
LEFA NEDELKOS
Second Respondent (Second Defendant)
JIM NITSOS
TOM NITSOS
Third Respondents (Third Defendants)
THE REGISTRAR OF TITLES
Fourth Respondent (Fourth Defendant)

Catchwords:

Succession - Executors and administrators - Proceedings against executors and administrators - Extension of time within which to bring a claim under s 7(1) of Inheritance (Family and Dependants Provision) Act 1972 - Whether "justice of the case" required Court to grant leave to file application out of time where delay caused by solicitor and not client

Professions and trades - Lawyers - Extent to which solicitor's fault affects client's rights in proceedings - Conduct of client where solicitor caused delay

Procedure - Supreme Court procedure - Exercise of discretion in granting leave to adduce further evidence in appeal on interlocutory application - Extent to which solicitor's fault affects client's rights in proceedings - Conduct of client where solicitor caused delay

Procedure - Costs - Liability of solicitor - Order 66 r 5(1)(b) Rules of the Supreme Court

Legislation:

Inheritance (Family and Dependants Provision) Act 1972 s 7(1) s 7(2)

Rules of the Supreme Court O 66 r 5(1)(b)

Result:

Leave to appeal granted appeal upheld

Representation:

Counsel:

Applicant (Plaintiff)  :        Mr R E Keen
First Respondent (First Defendant)          :        Ms C H Thompson
Second Respondent (Second Defendant) :        No appearance
Third Respondents (Third Defendants)     :        Ms C H Thompson
Fourth Respondent (Fourth Defendant)    :        No appearance

Solicitors:

Applicant (Plaintiff)  :        Leonard Cohen & Co
First Respondent (First Defendant)          :        Freehill Hollingdale & Page
Second Respondent (Second Defendant) :        No appearance
Third Respondents (Third Defendants)     :        Freehill Hollingdale & Page
Fourth Respondent (Fourth Defendant)    :        No appearance

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

Bourke v Kecskes [1967] VR 894
Brown v Holt [1961] VR 435
Clayton v Aust (1993) 9 WAR 364
Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 375
Instant Nominees Pty Ltd v Redmond (1987) WAR 218
Re Salmon (deceased) [1981] Ch 170
Re Traeger deceased [1948] SASR 248
Sanderson v Metropolitan (Perth) Passenger Transport Trust, unreported; FCt SCt of WA; Library No 950185; 22 March 1995

Case(s) also cited:

Black v City of South Melbourne [1963] VR 34
Christie v Harvey (1900) 2 WAR 146
Esther Investments v Markalinga (1989) 2 WAR 196
Farr v Shire of Manjimup, unreported; SCt of WA; Library No 930349; 15 June 1993
FCT v Brambles Holdings (1991) 99 ALR 523
Gallo v Dawson (1990) 64 ALJR 458
Gamble v Killingsworth [1970] VR 161
Ketteman v Hansel Properties…

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 Grigoriou v Nitsos

Details

AGLC: Grigoriou v Nitsos [1999] WASCA 42
Case: [1999] WASCA 42
Decision Date: 4 JUNE 1999

CaseChat Overview and Summary

In the case of Grigoriou v Nitsos, the dispute arose in the context of succession law, specifically concerning the administration of an estate. The applicants sought to challenge the actions of the executors of the estate, and they applied for an extension of time to bring a claim under the Inheritance (Family and Dependants Provision) Act 1972. The application was out of time, and the primary legal issue was whether the court should grant leave to file the application out of time, given that the delay was caused by the applicants' solicitor. The case also raised questions about the extent to which a solicitor's fault affects a client's rights in proceedings, and the conduct of the client where the delay was caused by the solicitor.

The Court held that while the general approach to an out-of-time application is to consider the justice of the case, the Court must also consider the role of the solicitor and the client's conduct in causing the delay. The Court emphasised that the client's entitlement to bring a claim was not absolute, and the Court had to balance the interests of all parties involved. The Court found that the applicants had acted reasonably in relying on their solicitor to take the necessary steps to bring the application within time. The Court also noted that the delay had not prejudiced the executors, and that the applicants had a valid claim under the Act.

Based on these considerations, the Court granted leave for the applicants to file their application out of time. The Court found that the justice of the case required the Court to exercise its discretion in favour of the applicants. The Court also noted that the applicants' solicitor had been negligent in failing to take the necessary steps to bring the application within time. However, the Court found that the applicants were not liable for their solicitor's fault, and that the executors were liable for the costs of the application.

In conclusion, the Court granted leave for the applicants to file their application out of time, and ordered the executors to pay the applicants' costs. The Court found that the applicants had acted reasonably in relying on their solicitor, and that the delay had not prejudiced the executors. The Court also held that the solicitor was liable for the costs of the application, and that the executors were liable for the applicants' costs.

Orders