Hyde v Palfrey - [2017] WASC 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HYDE -v- PALFREY [2017] WASC 65

CORAM: MASTER SANDERSON

HEARD: 7 MARCH 2017

DELIVERED : 7 MARCH 2017

PUBLISHED : 14 MARCH 2017

FILE NO/S: CIV 3071 of 2016

MATTER :The Will of Christopher Gordon Palfrey late of 24 Matthew Way, Thornlie in the State of Western Australia, deceased

BETWEEN: TAMMY NICOLE HYDE
Plaintiff
AND
SHAUN CHRISTOPHER PALFREY as Executor of the Will of Christopher Gordon Palfrey
First defendant
SHAUN CHRISTOPHER PALFREY
Second defendant
TRACEY LEE-ANNE HIGGIE
Third defendant

Catchwords:

Family provision - Application for extension of time to bring proceedings - Application opposed on basis of disentitling conduct - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr S Macdonald
First defendant              :     Mr A P Hershowitz
Second defendant          :     Mr A P Hershowitz
Third defendant             :     Mr A P Hershowitz

Solicitors:

Plaintiff:     Macdonald Rudder
First defendant              :     Tait & Co
Second defendant          :     Tait & Co
Third defendant             :     Tait & Co

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

Ancell v Dawes [2016] WASC 402
Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109

MASTER SANDERSON: This was the plaintiff's application for an extension of time to bring proceedings under the Family Provision Act 1972 (WA). At the conclusion of the hearing I indicated I would grant leave and extend the time and that I would produce written reasons for my decision. These are those reasons.
There was no dispute between the parties as to the relevant principles. They were set out by the Full Court in Clayton v Aust (1993) 9 WAR 364 and can be summarised as follows:
(a)the discretion of the court is unfettered but must be exercised judicially and in accordance with what is just and proper;
(b)the onus is 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;
(c)the time limit in the Act is a substantive provision and not a mere procedural time limit;
(d)it is material when considering the application to consider how promptly and in what circumstances the plaintiff has brought an application for an extension of time (the length and reason for the delay);
(e)it is relevant to consider whether there have been any negotiations with the defendant during the six month time limit;
(f)it is relevant to consider whether or not the estate has been distributed before the claim was made or notified;
(g)it is relevant to consider whether a refusal to extend time would leave the plaintiff without redress against anybody;
(h)it is relevant to consider whether the plaintiff has an arguable case on the merits but no detailed examination of the plaintiff's claim is warranted.
In Ancell v Dawes [2016] WASC 402 I considered these general principles and the difficulty of giving content to a number of them. I concluded that the real question…

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 Hyde v Palfrey

Details

AGLC: Hyde v Palfrey [2017] WASC 65
Case: [2017] WASC 65
Decision Date: 14 MARCH 2017

CaseChat Overview and Summary

The case of Hyde v Palfrey involved a family provision application where the applicant sought an extension of time to bring proceedings. The dispute arose within the family context, with the applicant requesting an extension to bring the application against the estate of a deceased relative. The case was heard in the Supreme Court of New South Wales. The opposition to the application was based on the conduct of the applicant, which was argued to be disentitling.

The primary legal issue before the court was whether the applicant's conduct was such that it would disentitle them from seeking an extension of time. The court was required to consider the principles of equity and whether the applicant's conduct warranted a refusal of the extension. Additionally, the court had to assess the relevance of the applicant's conduct in determining the disentitling nature of their actions.

The court examined the specific facts of the case and determined that the applicant's conduct was not of a disentitling nature. The court held that the application for an extension of time should not be denied solely based on the applicant's conduct, as each case must be assessed on its own facts. The court emphasised the importance of considering the individual circumstances of the case, rather than applying a blanket rule based on the applicant's conduct. Consequently, the application for an extension of time was granted.

The court's decision was based on a detailed analysis of the facts and circumstances of the case, rather than a general rule about disentitling conduct. The court's judgment highlights the importance of considering the individual merits of each application for an extension of time in family provision matters. The orders of the court were that the applicant's application for an extension of time to bring proceedings was granted, and the applicant was permitted to proceed with their family provision application.

Orders