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Grove v Fisher

Grove v Fisher

Case [2002] WASC 247 31 October 2002

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: GROVE -v- FISHER & ANOR [2002] WASC 247

CORAM: HASLUCK J

HEARD: 30 AUGUST 2002

DELIVERED : 31 OCTOBER 2002

FILE NO/S: CIV 1247 of 2002

MATTER :Application under s 7(2) of the Inheritance (Family and Dependants Provision Act) 1972 and the Estate of Donald Robert Fisher (Dec)

BETWEEN: KERRY ANNE GROVE
Plaintiff
AND
SHIRLEY FRANCIS FISHER
GEOFFREY ARCHIBALD FISHER as Executors and Trustees of the Will of DONALD ROBERT FISHER (DEC)
Defendants

Catchwords:

Trustees - Deceased estate - Claim for interest on bequest due to beneficiary - Payment of bequest withheld pending resolution of proceedings under Inheritance Act - Whether claim for interest should be allowed in these circumstances

Legislation:

Civil Procedure Act 1833 (UK)

Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1), s 8, s 10, s 14, s 20
Supreme Court Act 1935 (WA), s 32

Trustees Act 1962 (WA), s 65, s 92

Result:

Judgment for the Defendants

Category: A

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
First-named Defendant       :     Mr J C Curthoys
Second-named Defendant    :     No appearance

Solicitors:

Plaintiff:     Hoffmans
First-named Defendant       :     Kaeser Kroon
Second-named Defendant    :     No appearance

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

Hadley v Baxendale (1854) 2 CLR 517
Hungerfords v Walker (1989) 171 CLR 125
In re Simson (Dec), Simson v National Provincial Bank Ltd [1950] Ch 38
In the Estate of Gough (Dec); Gough v Fletcher (1973) 5 SASR 559
India, President of v La Pintada Compania Navigacion SA [1985] AC 104
Jefford v Gee [1970] 2 QB 130
London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429
McLauchlan v Prince [2001] WASC 43
Re Jones; Noonan v Jones [1978] VR 272
Treloar v Ivory (1991) 4 WAR 318
Wallersteiner v Moir (No 2) [1975] QB 373

Case(s) also cited:

Easterbrook v Young (1977) 136 CLR 308
Ruby v Marsh (1975) 132 CLR 642

HASLUCK J: The plaintiff Kerry Anne Grove, is a beneficiary under the Will of her late father, Donald Robert Fisher who died on 23 August 1983. The plaintiff seeks to enforce a claim for interest against the executors of her late father's estate which is referable to a bequest due to her under the deceased's Will. I must begin by looking at the circumstances giving rise to the claim.

Background

The deceased was survived by his wife, Shirley Frances Fisher, and by his three children Neil Donald Fisher, Brian Peter Fisher and the plaintiff in these proceedings, Kerry Anne Grove. He left a Will dated 28 June 1983 which appointed Shirley and his brother Geoffrey Archibald Fisher as the executors and trustees of his estate.
Probate of the Will was granted on 11 October 1984 to the executors named in the Will.
At all material times before his death the deceased was a farmer. The farming business was carried on by a partnership trading under the name of "DR Fisher & Co". The partners at the…

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 Grove v Fisher

Details

AGLC: Grove v Fisher [2002] WASC 247
Case: [2002] WASC 247
Decision Date

CaseChat Overview and Summary

In Grove v Fisher, the plaintiff, Kerry Anne Grove, sought interest on a bequest due to her under the will of her deceased father, Donald Robert Fisher. The bequest, amounting to $250,000, was due on 23 August 2000, but was not paid until 11 April 2002. The defendants, Shirley Francis Fisher and Geoffrey Archibald Fisher as executors and trustees of Donald Fisher's estate, argued that the payment was withheld pending the resolution of proceedings under the Inheritance (Family and Dependants Provision) Act 1972 (WA). The court was required to decide whether the executors were justified in withholding payment of the bequest and whether the plaintiff was entitled to interest. The court found that the executors were justified in withholding payment, as claims against the estate under the Inheritance Act were pending, and the estate should not be distributed in such circumstances. The court held that the plaintiff was not entitled to interest on the bequest as she was not culpably or improperly kept out of funds which ought to have been paid to her. The plaintiff's claim was dismissed.

Orders