Izydorski v Rimmer - [2010] WASC 175

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 Defendant
SONIA IRENE PROKOJES
Second-named First Defendant
DEBORAH JAYNE HOOD
Third-named First Defendant
LISA MARIE IZYDORSKI
Fourth-named First Defendant
DENISE ANNE RIMMER
Second Defendant
SONIA IRENE PROKOJES
Third Defendant
EDWARD JOHN IZYDORSKI
Fourth Defendant
SHANE GREGORY IZYDORSKI
Fifth Defendant
DEBORAH JAYNE HOOD
Sixth Defendant
LISA MARIE IZYDORSKI
Seventh Defendant
HENRYK 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…

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.

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Details

Case: [2010] WASC 175
Decision Date: 23 JULY 2010

CaseChat Overview and Summary

In the case of Izydorski v Rimmer, the applicant, Izydorski, sought an extension of time to apply under the Inheritance (Family and Dependants Provision) Act 1972 (WA) for a share of the deceased's estate. The deceased had allegedly promised Izydorski future accommodation, and Izydorski's son was the executor of the estate. There was disagreement among the family and the administrators regarding the validity of Izydorski's claim, leading to the application for an extension of time. The application was heard in the Supreme Court of Western Australia.

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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