Lee v Lee - [2015] WASC 461

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEE -v- LEE [2015] WASC 461

CORAM: MASTER SANDERSON

HEARD: 2 OCTOBER 2015

DELIVERED : 3 DECEMBER 2015

FILE NO/S: CIV 2620 of 2010

MATTER :The Trustees Act 1962 (WA) and the Inheritance (Family and Dependents Provision) Act 1972 (WA)
The Estate of Barry Nelson Watkins, late of 49 Yulbah Loop, Baldivis in the State of Western Australia, deceased Probate No 1542/10

BETWEEN: TANIA JANE LEE
Plaintiff
AND
TANIA JANE LEE as Joint Administrator of the Estate of BARRY NELSON WATKINS (Dec)
First Defendant
BELINDA JANE WATKINS as Joint Administrator of the Estate of BARRY NELSON WATKINS (Dec)
Second Defendant
SHAUN WATKINS
Third Defendant
REBECCA KATE WATKINS
Fourth Defendant

Catchwords:

Practice and procedure - Application to extend time to comply with springing order - Turns on own facts

Legislation:

Nil

Result:

Time extended

Category: B

Representation:

Counsel:

Plaintiff:     Mr G J Pynt
First Defendant              :     Mr G J Pynt
Second Defendant         :     Mr A J Prentice
Third Defendant            :     Mr A J Prentice
Fourth Defendant           :     Mr A J Prentice

Solicitors:

Plaintiff:     Galic & Co
First Defendant              :     Galic & Co
Second Defendant         :     Mossensons
Third Defendant            :     Mossensons
Fourth Defendant           :     Mossensons

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

FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88

MASTER SANDERSON: By amended chamber summons filed 1 October 2015 the plaintiff sought to vary certain orders including one order that was made over two years ago. To understand the nature of the application it is necessary to set out the background to this action in some detail.
The plaintiff was the partner of Barry Nelson Watkins (the deceased) who died intestate on 16 October 2009. The Supreme Court granted Letters of Administration to the plaintiff and to the second defendant. The second defendant was the daughter of the deceased from a previous marriage. At the time of the death of the deceased he and the plaintiff were living in a house owned by the deceased. They had been living together from 2001. The house is now part of the deceased's estate. The plaintiff is still resident in the property.
By originating summons dated 12 October 2010 the plaintiff sought an order that further provision be made out the estate pursuant to the (then) Inheritance (Family and Dependents Provision) Act 1972 (WA). I will have something to say as to the merits of the plaintiff's claim later in these reasons.
The second, third and fourth defendants are children from the deceased's previous marriage. They oppose the application. Mediation has taken place on four occasions - 4 July 2012, 5 November 2012, 17 November 2014 and 17 December 2014. There was no resolution of the claim as a consequence of these mediations and it now appears unlikely the claim will be settled.
On 6 May 2013 Registrar Whitby ordered the plaintiff to provide 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.

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Details

Case: [2015] WASC 461
Decision Date: 3 DECEMBER 2015

CaseChat Overview and Summary

In Lee v Lee, the plaintiff sought an extension of time to comply with a springing order that required her to bring fresh proceedings if the initial action was dismissed. The case was heard by the court, which had to determine whether the time for compliance with the springing order should be extended. The plaintiff argued that she should be granted an extension of time due to her continued occupation of the home she shared with the deceased and her desire to remain there. The defendants opposed the application, arguing that the action had been pending for five years and that extending the time would cause them significant prejudice.

The court examined the circumstances surrounding the making of the springing order, the reasons for the non-compliance, and the potential prejudice to both parties if the time was or was not extended. The court found that the springing order was made due to the plaintiff's solicitors' persistent and consistent failures to comply with previous orders. The plaintiff had not provided a reasonable explanation for her non-compliance with the springing order. The court also found that if the time was not extended, the plaintiff would suffer significant prejudice as she would have to vacate her present residence. However, the defendants would also suffer prejudice if the time was extended as the action had been pending for five years and it was unlikely to be resolved for several more years.

After considering the factors outlined in the authorities, the court decided not to extend the time for compliance with the springing order. The court found that the circumstances in which the springing order was made and the lack of reasonable explanation for non-compliance were factors in favour of not extending the time. While the plaintiff would suffer significant prejudice if the time was not extended, the court found that the prejudice to the defendants outweighed this factor. The court noted that the action had been pending for five years and it was unlikely to be resolved for several more years if the time was extended.

The court did not grant the plaintiff's application for an extension of time to comply with the springing order. The plaintiff was required to bring fresh proceedings if the initial action was dismissed. The court noted that if the plaintiff was unable to issue fresh proceedings, any claim she may have against her present solicitor would not alter the fact that she would have to vacate her present residence. The court found that the prejudice to the defendants outweighed the prejudice to the plaintiff if the time was not extended.

Orders

Orders of the court

Full text does not contain this section.

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

Having determined there was no compliance with the springing order the question then is whether or not the time for compliance ought be extended. Prior to the High Court decision in FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 it was generally thought once the time for compliance with a springing order had passed, the court was functus officio and no extension of time could be granted. The High Court determined otherwise. At issue in that case was the question of power; the court did not have to consider the circumstances in which the power might be exercised. However in the course of her reasons Gaudron J said:Where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings (288). In this case if the time is not enlarged and the action stands dismissed there is presumably no reason why the plaintiff could not apply for an extension of time within which to bring fresh proceedings. But she would have to apply for an extension of time. It is by no means certain that extension would be granted and it would be inappropriate to canvass in these reasons what the outcome of any application might be. The authorities suggest that there are at least four factors to be taken into account when exercising the discretion. These are:(1)the circumstances in which the springing order came to be made;(2)the reason for non‑compliance with the springing order;(3)the prejudice to the defaulting party if the time is not extended; and(4)the prejudice to the other party if time were extended. The first of these has been dealt with above when recounting the facts. The order came to be made after persistent and consistent failures on the part of the plaintiff's solicitors to comply with orders made by the registrar. There could be no complaint about the fact the springing order was made. That is a factor in favour of refusing to extend time. There is no reasonable explanation for the failure to comply with the springing order. I need say nothing more on this question. This is a factor which is also in favour of not extending time for compliance. There is no doubt a real possibility the plaintiff will suffer significant prejudice if the time is not extended. Without going through the evidence in detail it is clear the plaintiff by this action wants an order which would allow her to remain in occupation of the home she occupied with the deceased and which she has continued to occupy in the six years since his passing. If the plaintiff was not able to issue fresh proceedings if this action stands dismissed then any claim she may have against her present solicitor would not alter the fact she would have to vacate her present residence. That is a real prejudice. The difficulty is of course to assess just how likely it is that event would come to pass. There is no doubt the defendants would suffer prejudice if the time is extended. This action has been on foot for five years and it is difficult to see if it were to progress it could be resolved in under 12 months. On the very best case scenario the action is unlikely to be heard before the second half of 2016 and it is very likely to be resolved more than seven years after their father's passing.