Grigoriou v Nitsos

Case [1999] WASCA 42


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE FULL COURT (WA)

CITATION:   GRIGORIOU -v- GEORGE NITSOS (As Executor of the Estate of Athanasois Nichos) & ORS [1999] WASCA 42

CORAM:   IPP J

WHITE J
STEYTLER J

HEARD:   10 MAY 1999

DELIVERED          :   4 JUNE 1999

FILE NO/S:   FUL 40 of 1999

MATTER                :Inheritance (Family and Dependants Provision) Act 1972

and

Estate of ATHANASIOS NICHOS (DEC)

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…

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Grigoriou v Nitsos [1999] WASCA 42
Case
[1999] WASCA 42
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

WHITE J

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Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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