Manolas v Manolas
[2016] WASCA 186
•28 OCTOBER 2016
MANOLAS -v- MANOLAS [2016] WASCA 186
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 186 | |
| THE COURT OF APPEAL (WA) | 28/10/2016 | ||
| Case No: | CACV:8/2016 | 14 OCTOBER 2016 | |
| Coram: | NEWNES JA MURPHY JA | 14/10/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | ALICIA MANOLAS BARBARA MANOLAS |
Catchwords: | Practice and procedure Application for an extension of time to serve amended appeal notice and file and serve appellant's case Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MANOLAS -v- MANOLAS [2016] WASCA 186 CORAM : NEWNES JA
- MURPHY JA
- Appellant
AND
BARBARA MANOLAS
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 2699 of 2014
Catchwords:
Practice and procedure - Application for an extension of time to serve amended appeal notice and file and serve appellant's case - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J Bochat
Solicitors:
Appellant : In person
Respondent : Rattigan Kearney & Bochat
Case(s) referred to in judgment(s):
Nil
- REASONS OF THE COURT:
Introduction
1 This matter came before the court on 14 October 2016 by way of a registrar's notice to attend dated 7 October 2016, to consider the appellant's application dated 30 September 2016 for an extension of time to comply with the court's orders of 22 August 2016. On 22 August 2016, the court had ordered, in effect, that the appellant must personally serve the second respondent with the amended appeal notice dated 11 February 2016, and file and serve an appellant's case, by 30 September 2016. The court also ordered that unless the appellant complied with those orders, the appeal should be dismissed.
2 Following the hearing on 14 October 2016, we dismissed the appellant's application for an extension of time and said that we would publish our reasons subsequently. These are our reasons.
The nature of the appeal - on a question of costs
3 The appeal in this matter involved a challenge to Master Sanderson's decision on costs in CIV 2699 of 2014, delivered on 19 January 2016. The master ordered that the second defendant to the action (Alicia Manolas) pay the costs of the plaintiff (Barbara Manolas) and the costs of the first defendant (Barbara Manolas as executor of the estate of the late Kenneth Manolas), including costs reserved and costs in the cause.
The primary proceedings
4 The proceedings concerned an application under the Family Provisions Act 1972 (WA). Barbara Manolas was the deceased's wife at the time of his death. At the time of the hearing before the master, Barbara Manolas was 85 years of age and had very few assets. Alicia Manolas was the deceased's daughter, and the step-daughter of Barbara Manolas.
5 Master Sanderson gave extemporary reasons for his decision concerning the substantive issues in the primary proceedings on 17 December 2015. The master found that when the deceased was alive, he lived with Barbara Manolas at a house in Hazelmere. Barbara Manolas and the deceased were married in 2007. The Hazelmere home was originally registered in the name of the deceased, but in April 2006, before the deceased married Barbara Manolas, the deceased transferred the Hazelmere home into the joint names of himself and Alicia Manolas. Accordingly, upon the deceased's death, Alicia Manolas became the sole registered proprietor by survivorship. Also, following the deceased's death, Barbara Manolas moved out of the Hazelmere home and Alicia Manolas sold it for $555,000. Alicia Manolas put some of the money towards paying off her own house, and spent a portion of the money on bagpipes and accessories, which would pass to the WA College of Piping. It was unclear exactly how much of the money from the sale of the Hazelmere home was left after this outlay.
6 At the time of the hearing before Master Sanderson, there remained in the estate a property known as unit 2/12 Strelitzia Avenue, Forrestfield. It was likely to be worth between $260,000 and $318,000. It was essentially the sole asset of the estate. That property had not been sold because Alicia Manolas had lodged a caveat over the property.
7 When the deceased died, he left a homemade will dated 2 October 2012. Probate was granted on 26 November 2014. In the will, the deceased left the Hazelmere home to his wife, Barbara Manolas, and the residue of the estate to Alicia Manolas. However, because the Hazelmere home had passed to Alicia Manolas by way of survivorship upon his death, Barbara Manolas was effectively left with nothing.
8 Master Sanderson found that inadequate provision had been made for Barbara Manolas in the deceased's will. He found that given the very modest size of the estate, and Barbara Manolas' need, proper provision would require the rest of the residue of the estate to pass to Barbara Manolas. That is, she was entitled to whatever cash was left in the estate (being very little), and the Strelitzia Avenue property. Master Sanderson also found that Alicia Manolas' evidence was entirely unsatisfactory; that she did not make full disclosure of her bank accounts; and that it was impossible to assess her needs on the evidence.
9 The master reserved the question of costs. After hearing from the parties, the master ordered, on 19 January 2016, that Alicia Manolas pay the other parties' costs of the action, including costs reserved and costs in the cause.
The history of the appeal
10 The appellant (Alicia Manolas), by her then solicitors, Avon Legal, filed an appeal notice on 9 February 2016, naming Barbara Manolas as the first respondent and Barbara Manolas in her capacity as the executor of the estate of the late Kenneth Manolas, as the second respondent.
11 On 11 February 2016, the appellant was asked to amend her appeal notice to include an application for leave to appeal. This was because the registrar had reviewed the notice and found that it would appear that the appeal only related to the matter of costs, in which case leave was required under s 60(1)(e) of the Supreme Court Act 1935 (WA).
12 The amended appeal notice was filed on 11 February 2016.
13 On 15 February 2016, the appellant's solicitors filed two service certificates, in respect of the appeal notice of 9 February 2016. One was to the effect that the first respondent had been 'personally' served by service at the office of Rattigan Kearney & Bochat Barristers & Solicitors. The other was to the effect that the second respondent had been 'personally' served by service at the offices of Allen & Jasnic Lawyers.
14 On 22 March 2016, Rattigan Kearney & Bochat Barristers & Solicitors, on behalf of the first respondent (Barbara Manolas in her personal capacity), filed a notice of intention to take part in the appeal by her solicitors. No notice of intention has been filed on behalf of Barbara Manolas in her capacity as executor.
15 On 31 March 2016, Avon Legal was given leave to cease to act for the appellant on certain terms.
16 On 18 April 2016, the associate to Registrar Bush wrote a letter to the appellant. The letter referred to the certificate of service in relation to the second respondent, and said, in effect, that service on the second respondent's lawyers did not constitute personal service. The letter directed the appellant to effect personal service on the second respondent.
17 On 7 May 2016, the appellant emailed the Court of Appeal office stating, in effect, that she was not sure if she understood the letter of 18 April 2016, but she wanted to pursue the appeal because she considered the costs order to be unfair to herself, especially in light of her expensive and numerous health conditions.
18 On 12 May 2016, the associate to Registrar Bush replied to the appellant's email dated 7 May 2016. The associate set out the two steps necessary for the appellant to proceed with her appeal. The first was to have the second respondent personally served with the amended appeal notice of 11 February 2016. The second was for the appellant to file an appellant's case in compliance with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of AppealRules).
19 On 12 May 2016, Registrar Bush ordered that the time for filing the appellant's case be extended to 10 June 2016.
20 On 17 June 2016, the associate to Registrar Bush wrote again to the appellant. Reference was made to Registrar Bush's order of 12 May 2016, and the fact that the appellant's case and service certificate remained outstanding.
21 On 24 June 2016, the first respondent's lawyers filed an application for the appeal to be dismissed pursuant to r 43(2)(g)(ii) of the Court of Appeal Rules. The application was supported by an affidavit of the first respondent's solicitor, Mr Bochat, filed 24 June 2016.
22 That application came on for hearing on 19 August 2016, on which occasion the court made the orders referred to at the outset of these reasons (dated 22 August 2016).
23 The appellant filed the present application on 30 September 2016, being the last day for compliance with the court's earlier orders. In her application, the appellant sought an order extending time for compliance with the court's earlier orders until 28 October 2016.
24 The affidavit in support of the application indicated that the appellant is a disabled pensioner who is 'bed-bound for much of the time and suffers from pain and disease'. She said that she suffers from post-traumatic stress disorder or a related mental health condition. (There is no medical evidence about those matters.) She also said that she has been having dental work recently, and, more recently, suffered 'an extreme pain attack'. She said that she gains support from her boyfriend, but he suffers from a 'Generalised Anxiety Disorder', and that he was busy buying a house and moving house in April - July 2016. Since then, he has had a lot of paperwork to do, such as 'income tax, census and complications with his First Home Owner's Grant'.
Disposition
25 The appellant's notice of appeal was filed on 9 February 2016. By pt 5 r 32(2)(b) of the Court of Appeal Rules, the appellant's case was due to be filed by 15 March 2016. On 12 May 2016, the appellant was granted an extension of time to file the appellant's case when Registrar Bush ordered the appellant's case to be filed by 10 June 2016. That order was not obeyed, and the appellant did nothing to remedy the default prior to the hearing on 19 August 2016.
26 Further, Barbara Manolas has not been personally served in accordance with pt 5 r 29(4) of the Court of Appeal Rules. Whilst Barbara Manolas has solicitors acting for her in her personal capacity who have filed a notice on her behalf as first respondent, they do not act for her in her capacity as executor. Accordingly, the appeal against Barbara Manolas in her capacity as executor has not been properly commenced in time in accordance with pt 5 r 27 of the Court of Appeal Rules.
27 On 19 August 2016, the appellant was given nearly another six weeks to attend to these serious delays in the prosecution of her appeal. Again, nothing has been done.
28 The appellant had ample time to prosecute her appeal properly. The material contained in her affidavit in support of the application provides, objectively, no proper explanation for the failure to comply with the court's orders on the last occasion. If an extension were granted, there is no firm basis for concluding that there is any realistic prospect that such an order would itself be complied with by the appellant. The appeal concerns a question of costs which is a discretionary matter involving practice and procedure, in respect of which the need for appellate restraint is well known. The costs order made by the master is on its face in accordance with the usual order that the successful party is entitled to an order for costs: O 66 r 1 of the Rules of the Supreme Court 1971 (WA). The appellant had not asserted any basis upon which the master's order with respect to costs might arguably be wrong. The stresses of ongoing litigation are well recognised and have particular significance in this case, where (as is apparent from the master's reasons) the respondent is herself over 85 years of age and has limited means even after the successful application before the master. In all the circumstances, it was appropriate in the interests of justice, including having regard to the principle of finality, for the application to be dismissed.
0
0
1