JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IZYDORSKI -v- RIMMER [2010] WASC 175
CORAM: EM HEENAN J
HEARD: 21 JUNE 2010
DELIVERED : 23 JULY 2010
FILE NO/S: CIV 1444 of 2010
MATTER :Section 7(2)(b) and s 6 of the Inheritance (Family and Dependants Provision) Act 1972 (WA)
and
The Estate of PATRICIA JEAN GAWRONSKI late of Ella Williams House, 77 - 79 Camboon Road, Noranda in the State of Western Australia
BETWEEN: GEOFFREY BRIAN IZYDORSKI
Plaintiff
AND
DENISE ANNE RIMMER
First-named First DefendantSONIA IRENE PROKOJES
Second-named First DefendantDEBORAH JAYNE HOOD
Third-named First DefendantLISA MARIE IZYDORSKI
Fourth-named First DefendantDENISE ANNE RIMMER
Second DefendantSONIA IRENE PROKOJES
Third DefendantEDWARD JOHN IZYDORSKI
Fourth DefendantSHANE GREGORY IZYDORSKI
Fifth DefendantDEBORAH JAYNE HOOD
Sixth DefendantLISA MARIE IZYDORSKI
Seventh DefendantHENRYK GAWRONSKI
Eighth Defendant
Catchwords:
Succession - Inheritance (Family and Dependants Provision) Act 1972 (WA) - Application for extension of time to apply - Adult son - Short delay - Administration - Division of opinion within family and administrators as to merits of applicant's claim - Alleged promise by deceased to provide future accommodation for applicant
Legislation:
Administration Act 1903 (WA), s 14
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 7(2) and (3)
Result:
Extension of time granted to make application
Category: B
Representation:
Counsel:
Plaintiff: Ms L M McFarlane
First-named First Defendant : Mr E W Tan
Second-named First Defendant : Mr E W Tan
Third-named First Defendant : Mr E W Tan
Fourth-named First Defendant : Mr E W Tan
Second Defendant : Mr T R Godecke
Third Defendant : Mr T R Godecke
Fourth Defendant : In person
Fifth Defendant : No appearance
Sixth Defendant : In person
Seventh Defendant : In person
Eighth Defendant : No appearance
Solicitors:
Plaintiff: O'Connor Lawyers
First-named First Defendant : Robertson Hayles
Second-named First Defendant : Robertson Hayles
Third-named First Defendant : Robertson Hayles
Fourth-named First Defendant : Robertson Hayles
Second Defendant : Griffiths & Godecke
Third Defendant : Griffiths & Godecke
Fourth Defendant : In person
Fifth Defendant : No appearance
Sixth Defendant : In person
Seventh Defendant : In person
Eighth Defendant : No appearance
Case(s) referred to in judgment(s):
Amos v Amos [1966] VR 442
Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Bickford v Robert Neil Bickford (as Executor of the Estate of Saxon Bickford) [2006] WASC 268
Clayton v Aust (1993) 9 WAR 364
Coates v National Trustees Executor & Agency Company Ltd [1956] ALR 739; (1956) 95 CLR 494
Easterbrook v Young (1977) 136 CLR 308; (1977) 13 ALR 351
Fisherv Fisher (Unreported, WASC, Library No 970494, 1 October 1997)
Girando v Girando (1997) 18 WAR 450
In Re Barry (dec); Circosta v Executor Trustee & Agency Company of South Australia Ltd (1974) 9 SASR 439
MacGregor v MacGregor [2003] WASC 169
Mansfield v Mansfield [2003] WASC 214
Re Claverie & The Testator's Family Maintenance…
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- Case
- [2010] WASC 175
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether Izydorski's short delay in applying for a share of the estate justified the granting of an extension of time. The court considered the factors relevant to determining whether an extension should be granted, including the degree of fault in the delay, the prejudice to other parties, and the merits of the application. The court also had to consider the division of opinion within the family and administrators as to the merits of Izydorski's claim.
The court found that Izydorski's delay was not significant, and that the delay did not cause significant prejudice to other parties. The court also found that there were genuine issues to be tried regarding the alleged promise by the deceased to provide future accommodation for Izydorski. The court held that the merits of Izydorski's claim were not determinative of the application for an extension of time, and that the application should be granted on the basis of the short delay and the lack of significant prejudice to other parties. The court granted the extension of time to allow Izydorski to make the application.
Orders
Orders of the court
Extension of time granted to make application
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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