Musasghi v Gebremariam - [2022] WASCA 37

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MUSASGHI -v- GEBREMARIAM [2022] WASCA 37
CORAM:   QUINLAN CJ
BUSS P
KENNETH MARTIN J

HEARD:   10 SEPTEMBER 2021
DELIVERED          :   29 MARCH 2022
FILE NO/S:   CACV 109 of 2020
BETWEEN:   SEBLE WELDU MUSASGHI
First Appellant
BEMNET MULUGETA TAYE
Second Appellant
GIDEON MULUGETA TAYE by guardian ad litem SIMRET TEWOLDE HABTEMARIAM
Third Appellant
AND
MULUGETA TAYE GEBREMARIAM
First Respondent
MISGHENA WELDETSION GEBREYESUS and TESFAYE MEKONEN ANBESSE as executors of the will of MELAT TEWOLDE HABTEMARIAM
Second Respondents

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
File Number            :   CIV 2033 of 2019

Catchwords:

Succession - Wills - Inheritance - Appeal against a decision granting an application made by the first respondent under s 6(1) of the Family Provision Act 1972 (WA) - Whether the Master made an error of fact in determining the total amount of the secured debt over a residential property - Whether the Master's exercise of the discretion at the second stage of the process miscarried - Whether the Master failed to apply the statutory test of determining what provision was adequate for the first respondent's 'proper' maintenance, support and advancement in life - Whether the Master failed to evaluate what was 'proper' for the first respondent having regard to the value of the deceased's estate, the competing claims of other claimants and all of the other circumstances of the case - Whether the Master's orders in relation to the deceased's estate were unreasonable or plainly unjust

Legislation:

Family Provision Act 1972 (WA), s 6(1), s 6(3), s 10, s 14(1), s 14(6), s 14(7)
Property Law Act 1969 (WA), s 126

Result:

Appeal allowed

Category: B

Representation:

Counsel:

First Appellant	:	Mr M Curwood SC
Second Appellant	:	Mr M Curwood SC
Third Appellant	:	Mr M Curwood SC
First Respondent	:	Ms R J Lee
Second Respondents	:	No appearance

Solicitors:

First Appellant	:	Kershaw Legal
Second Appellant	:	Kershaw Legal
Third Appellant	:	Kershaw Legal
First Respondent	:	Zion Legal
Second Respondents	:	McFarlane Lawyers

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

Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
Blore v Lang [1960] HCA 73; (1960) 104 CLR 124
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Chappell v Hewson [2013] WASCA 15
Coates v National Trustees Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494
Collicoat v McMillan [1999] 3 VR 803
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134
Hunter v Hunter (1987) 8 NSWLR 573
McCosker v McCosker [1957] HCA 82; (1957) 97 CLR 566
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR…

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: [2022] WASCA 37
Decision Date: 29 MARCH 2022

CaseChat Overview and Summary

In the case of Musasghi v Gebremariam, the appellant, who is the executor of the deceased's estate, brought an appeal against a decision of the Master of the Supreme Court of Western Australia. The appeal was against a decision that granted an application made by the first respondent, the daughter of the deceased, under section 6(1) of the Family Provision Act 1972 (WA). The daughter sought to have the will of her father set aside on the basis that it did not make adequate financial provision for her. The dispute centred around the interpretation and application of the Family Provision Act and the adequacy of the provision made by the deceased's will.

The primary legal issues before the court were whether the Master made an error of fact in determining the total amount of the secured debt over a residential property and whether the Master's exercise of the discretion at the second stage of the process miscarried. Additionally, the court had to consider whether the Master failed to apply the statutory test of determining what provision was adequate for the daughter's proper maintenance, support and advancement in life. It was also necessary to examine whether the Master failed to evaluate what was proper for the daughter having regard to the value of the deceased's estate, the competing claims of other claimants and all of the other circumstances of the case. Finally, the court assessed whether the Master's orders in relation to the deceased's estate were unreasonable or plainly unjust.

The court found that the Master had indeed made an error of fact in determining the amount of the secured debt, which was a critical factor in assessing the adequacy of the provision made by the will. The court held that this error resulted in a miscarriage of the Master's discretion at the second stage of the process. Furthermore, the court determined that the Master failed to apply the statutory test correctly and did not adequately evaluate what was proper for the daughter. The court found that the Master's orders were unreasonable and plainly unjust, leading to the conclusion that the appeal should be allowed.

Orders

Orders of the court

Appeal allowed

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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