Naumoska v Gorgieski as Administrator of the Estate of Kiril Gorgieski (Dec) - [2021] WASC 295

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NAUMOSKA -v- GORGIESKI AS ADMINISTRATOR OF THE ESTATE OF KIRIL GORGIESKI (DEC) [2021] WASC 295
CORAM:   ACTING MASTER STRK
HEARD:   24 MARCH 2021
DELIVERED          :   31 AUGUST 2021
FILE NO/S:   CIV 2021 of 2020
BETWEEN:   BISERKA NAUMOSKA
Applicant
AND
ILO GORGIESKI AS ADMINISTRATOR OF THE ESTATE OF KIRIL GORGIESKI (DEC)
Respondent

Catchwords:

Family Provision Act 1972 (WA) - Application for leave to file out of time - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant	:	N Siegwart
Respondent	:	R Grayden

Solicitors:

Applicant	:	Birman & Ride
Respondent	:	MGB Legal

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

Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14
Clayton v Aust (1993) 9 WAR 364
Craig v Craig [2015] WASC 109
Drake v Bradshaw [2018] WASCA 78
Grigoriou v Nitsos [1999] WASC 42
Hyde v Palfrey [2017] WASC 65
Re Salmon, Deceased [1981] Ch 167
Re Walker (Dec) [1967] VR 890
Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley [2018] WASCA 34

ACTING MASTER STRK:

The plaintiff is the adult daughter of the late Kiril Gorgieski, who died on 16 May 2015.
On 8 August 1991, the deceased executed a will. While the will provided that James John Pavlos would be the executor and trustee of the will, Mr Pavlos predeceased the deceased. Administration of the will was granted on 23 April 2019 to the defendant, the son of the deceased and a person entitled in distribution under the will. The deceased made no provision for the plaintiff in his will.
An application for provision out of the estate of any deceased person may be made under the Family Provision Act 1972 (WA) by or on behalf of, among others, a child of the deceased living at the date of death of the deceased, or born within 10 months after the deceased's death.[1] However, no such application shall be heard by the court unless the application is made within six months from the date on which the administrator becomes entitled to administer the estate of the deceased in Western Australia; or the court is satisfied that the justice of the case requires that the applicant be given leave to file out of time.[2] A motion for leave to file out of time may be made at any time, notwithstanding that the six month period has expired.[3]
[1] Family Provision Act s 7(1)(c).
[2] Family Provision Act s 7(2).
[3] Family Provision Act s 7(3).
The time for bringing proceedings for provision out of the estate of the late Kiril Gorgieski under the Family Provision Act expired on 23 October 2019. The plaintiff commenced this proceeding for leave to file out of time by an originating summons filed on 9 October 2020, almost a year after the sixth month period provided for in s 7(2)(a) had concluded. The plaintiff seeks orders that pursuant to s 7(2)(b) the time for the plaintiff to bring an application under s 7(1) be extended to 21 days from the date of order; and that the costs of the application be reserved.
The application is supported by the plaintiff's affidavit sworn on 18 September 2020 made in the Macedonian language. On 9 October 2020, the affidavit was filed with an English translation. The application is also supported by the affidavit of Nigel Jerome Siegwart, solicitor for the plaintiff, sworn on 15 December 2020, together with a written outline of submissions filed on 16 December 2020.
The defendant, in his capacity as administrator, is the only named defendant to the proceeding and he opposes the application. On 12 November 2020, the defendant made an affidavit in opposition to the application in the Macedonian language. On 16 November 2020, the defendant's affidavit was filed with an English translation. A written outline of submissions was filed on behalf of the defendant in opposition to the application on 1 December 2020.
Unless by this proceeding leave to commence an application out of time is granted, the plaintiff is unable to bring an application pursuant to the Family Provision Act s 6(1) for provision from the estate of the deceased.
For the reasons set out below, I am satisfied that the justice of the case requires that the plaintiff be given leave to file out of time. In these reasons, I deal with the following matters:
(a)standing;
(b)the applicable principles ‑ leave to commence out of time;
(c)the evidence;
(d)disposition; and
(e)conclusion and orders.

Standing

The Family Provision Act s 6 empowers the court in defined circumstances to order that provision be made out of the estate of a deceased person to persons falling within a stipulated category. Section 7(1) identifies categories of persons by or on behalf of whom an application under s 6(1) may be made. One such category is a child of the deceased living at the date of the death of the deceased.[4]
[4] Family Provision Act s 7(1)(c).
The plaintiff is a child of the deceased, living at the date of death of the deceased. The plaintiff has standing to bring this application for leave, and upon leave being granted, an application pursuant to the Family Provision Act s 6(1) for provision from the estate of the deceased.

Applicable principles - leave to apply out of time

This application for leave is made pursuant to the Family Provision Act s 7(2)(b), and under that section, the court must be satisfied that the justice of the case requires that the applicant be given leave to file out of time.
In Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley,[5] the Court of Appeal summarised the principles to be applied in determining an application to extend time.
[5] Wheatley v Gwenyth Mary Wheatley as executor of the estate of the late Gerald Leopold Wheatley [2018] WASCA 34 [54] - [63].
As was noted in Wheatley, the time limit provided by s 7(2)(a) is not a mere procedural limit. An applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.[6] After that period, beneficiaries and others who may be affected should ordinarily be entitled to assume that there will be no challenge to the will.[7]
[6] Wheatley [54] referring to Re Salmon, Deceased [1981] Ch 167 (175), referenced and reproduced in Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [2009] WASCA 14 [39]; Clayton v Aust (1993) 9 WAR 364, 366 - 367.
[7] Andre v Perpetual Trustees WA Ltd as Executor of the Will of Barbara Helen Owen Stewart [38], as cited in Wheatley [54].
As was observed in Wheatley at [56], the Court of Appeal in Clayton v Aust,[8] with reference to the decision in Re Salmon, Deceased,[9] accepted that in an application to extend time in this context the court would at least ordinarily have regard to the following non-exhaustive guidelines:
1.The discretion is unfettered. No restrictions or requirements of any kind are laid down in the Act. The discretion is to be exercised judicially and in accordance with what is just and proper.
2.The onus lies on the applicant to establish sufficient grounds for taking the case out of the general rule, and depriving those who are protected by it of its benefits. The time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by the rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus no triviality. The applicant must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend the time.
3.It is material to consider how promptly and in what circumstances the applicant seeks the permission of the court after the time limit has expired. The whole of the circumstances must be looked at including the reasons for delay and the promptitude with which the applicant gave warning to the defendants of the proposed application.
4.If negotiations have been commenced within the time limit, and time has run out while the negotiations are proceeding, this is likely to encourage the court to extend the time. Negotiations commenced after the time limit might also aid the applicant, at any rate if the defendants have not, in relation to those negotiations, taken the point that time has expired.
5.It is relevant to consider whether or not the estate had been distributed before a claim under the Act had been made or notified. For most people, there is a real difference between 'the bird in the hand and the bird in the bush'. In addition, of course, the beneficiaries are more likely to have changed their position in reliance on the benefaction if they have actually received it than if it lies merely in prospect.
6.It is relevant to consider whether a refusal to extend the time would leave the claimant without redress against anybody. [Footnotes omitted.]
[8] Clayton v Aust (366 - 367).
[9] Re Salmon, Deceased (175 - 177).
In Wheatley at [57] - [59], the Court of Appeal went on to observe as follows:[10]
As Mitchell J observed in Craig v Craig, in relation to the second of those guidelines, in Clayton:
The factor which Malcolm CJ saw as relevant was 'has the applicant got an arguable case on the merits?'.
In Clayton the master had concluded that the case of the appellant was 'weak on the merits or barely arguable'. This conclusion was reached on the basis that a conflict of evidence on affidavits was likely to be resolved against the appellant in that case. The master was found to have erred in adopting this approach in a situation where the evidence in the competing affidavits had not been tested by cross-examination, and in approaching the matter on the basis that the appellant's case was weak or barely arguable.
Moreover, as Steytler P observed in Andre, where there is an arguable case, the strength of that case may be an important factor to be considered in the overall exercise of discretion. However, there will often be cases where it is difficult to undertake a more precise assessment of the merits other than to form an overall conclusion that the case is arguable. That is because the application is conventionally determined on the papers, and the court is not in a position to resolve contested evidentiary matters concerning the underlying merits of any claim. There may, of course, be some cases where the underlying material facts are uncontested, or where admissions have been made, which enable the court to assess with some degree of confidence the strength of the applicant's case. Absent such matters, and where the applicant's own affidavit evidence is not inherently implausible or contrary to the undisputed facts and points to the existence of an arguable claim, the court will often be left in the position where it can do no more than conclude that the applicant has demonstrated an arguable case on the merits.
It should be added that the above observations are directed only to the consideration of whether the applicant has an arguable claim under s 6(1) of the Act on the merits. In relation to the court's consideration of matters such as the nature, extent and reasons for the delay, the court will need to make findings of fact about those matters on the evidence presented. (footnotes omitted)
[10] The reference to Craig v Craig below is a reference to Craig v Craig [2015] WASC 109.
When considering the reasons for delay, it was observed in Wheatley at [62] - [63] that:[11]
A claimant's ignorance of their rights under the legislation has also been regarded, in appropriate circumstances, as a factor tending in favour of the exercise of discretion. In Re Walker (Dec), the court referred to the claimant's ignorance of his rights, his youth and his inexperience in rejecting a submission that the claimant should have taken positive steps to ascertain his rights at an earlier point in time. In that case, Lush J also observed:
In deciding whether ignorance of his rights makes the delay excusable, it is necessary to ask the question whether, if the applicant had known of his rights, he would have taken any action.
On the other hand, where the claimant has been aware of his or her rights under the legislation, but merely unaware of the time limits, this has been held not, in itself, to be a sufficient ground for granting an extension of time. Also, the discretion has not been exercised in favour of a claimant who, knowing of her rights, chose for some reason satisfactory to her at the time not to exercise them, and some years afterwards, when her circumstances changed, sought an extension of time. (footnotes omitted)
[11] The reference to Re Walker (Dec) below is a reference to Re Walker (Dec) [1967] VR 890.
The plaintiff must persuade the court that the justice of the case, having regard to all relevant facts and circumstances and not merely those applicable to the plaintiff, require that they be given an extension of time.[12] Justice demands that a decision be made on all the relevant facts.[13]
[12] Drake v Bradshaw [2018] WASCA 78 [60]; Grigoriou v Nitsos [1999] WASC 42 [16].
[13] Grigoriou v Nitsos [20].

The evidence

The plaintiff deposes to what she describes as her 'family history'. A summary of the plaintiff's evidence follows.
The plaintiff is one of three children of the deceased and Vasilka Gorgieski (referred to in the deceased's will as Vasilca Gorgieski). The plaintiff is the deceased's first born daughter, having been born in 1953. The plaintiff has a sister, Nikolina Martinoska who was born in 1958. The plaintiff also has a brother, the defendant, who was born in 1964. All three children were born in Macedonia. While Ms Martinoska and the defendant reside in Macedonia, the plaintiff resides in Western Australia.
The deceased moved to Australia in about 1978 and the plaintiff's mother moved to Australia in 1989. The deceased purchased the property at 82 Fieldgate Square, Balga (referred to in the deceased's will as 82 Filgate Street, Balga) (the Balga property), in about 1986.
The plaintiff deposes that her parents asked her to move to Perth so that she could look after them as they aged. In 1999, the plaintiff moved to Perth from Germany (where she was living at the time), and between 1999 and 2015, the plaintiff deposes to having been a carer for her parents.
The plaintiff says that her parents' ability to live independently deteriorated from 1999, but they insisted that they wanted to remain living at the Balga property. The plaintiff says that she progressively took on more tasks as her parents became unable to perform them.
The plaintiff says that her parents stopped driving in about 2004 after a car accident involving the deceased. The plaintiff and her husband drove the plaintiff's parents to their medical and other appointments from that time.
In about 2006, the plaintiff and her husband purchased the property at 1A Wick Lane, Balga, so that they could be closer to the plaintiff's parents.
The plaintiff deposes that in about June 2008, the deceased gave her the document annexed to her affidavit and marked 'BN1'. The document is dated 27 June 2008. It appears to have been signed by the deceased and Mrs Gorgieski and witnessed by J Koios of Northlands Pharmacy. It provides as follows:
Subject: Authority Letter for Bisera Naumoska
To Whom It May Concern
We, Kiril Gorgieski and Vasilka Gorgieska of 82 Fieldgate Square Balga request the gift of $120,000.00 be made to Bisera Naumoska following the sale of our house located in Balga.
The gift is for taking care of us, doing our shopping, medical appointments and sorting out our financial concerns and living expenses.
I also hereby authorise my daughter Bisera Naumoska to act in all matters necessary with regards to our Commonwealth bank accounts, pensions, bill payments, reconciliation of bank statements and payments made to our son Ilo Gorgieski in Macedonia.
I ensure you of our full consent in regards to this authorisation as per the undersigned.
The plaintiff recounts that the deceased told her that he was giving her $120,000 from the proceeds of the sale of the Balga property because of the help she had rendered and was continuing to render to the deceased and to her mother.
The plaintiff further deposes that in 2008, the deceased broke his hip. He was unable to get into and out of the vehicle owned by the plaintiff and her husband. The plaintiff deposes to having purchased a vehicle for $29,000 so that she and her husband could continue to drive the deceased to his appointments. The plaintiff deposes that the deceased was very grateful and that he told the plaintiff that when he was gone and the plaintiff had received $120,000, she should use some of the money to buy a new car for her husband to thank him.
The plaintiff deposes that hospital workers had strongly suggested that her parents should enter residential aged care, but her parents wanted to continue to live at the Balga property. The plaintiff deposes that her parents were only able to do so because of her assistance.
The plaintiff deposes that her parents' health worsened significantly from about 2010, and that they required a lot of assistance. The plaintiff says that she did her parents' banking and was a signatory on their accounts; she assisted with their shopping; took them to medical and other appointments; paid bills on their behalf; and helped them with gardening and property maintenance. Although her mother was still able to cook, the plaintiff says that she often helped and would also help with the cleaning of their house.
The plaintiff deposes that in about 2014, her mother fell ill. She was admitted to hospital and hospital staff were insistent that her mother should be admitted to residential aged care. The plaintiff deposes to having persuaded them that she could continue to care for her parents, and with her assistance her parents could continue to live at the Balga property.
The plaintiff deposes that her parents spoke freely about their wishes for their estate when they passed. She deposes that on many occasions they referred to plaintiff receiving $120,000 and to the defendant receiving the remainder of their assets.
The plaintiff deposes that her parents regularly transferred money to the defendant, including a payment of $70,000 in February 2015, but that she did not receive similar gifts.
The plaintiff deposes that in about March 2015 her parents returned to Macedonia because of the deceased's ill-health. The plaintiff said that the deceased told her that he wanted to return to the country of his birth before he died.
When her parents left, the plaintiff says that her parents asked her to look after the Balga property. The plaintiff says that she has done so since May 2015. She deposes that her son, Mladen, and her daughter‑in-law presently live at the Balga property.
The deceased died in Macedonia on 16 May 2015. The deceased predeceased Mrs Gorgieski, who died on 17 December 2018.

The will

Annexed to the plaintiff's affidavit is a copy of the grant of letters of administration (with the will annexed) made by the court on 23 April 2019.[14] The will was made by the deceased on 8 August 1991.
[14] Affidavit of B Naumoska par 31.2 'BN5'.
Under the terms of the will, the deceased made the following provision.
3.I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate of whatsoever nature and wheresoever situate unto my trustee UPON the following TRUST:
3.1As to my property at 82 Filgate Street, Balga ('the matrimonial home') to transfer to my wife VASILICA GORGIESKI for life with reminder to my son ILO GORGIESKI. The said life estate shall be terminable:
(a)on the remarriage of my said wife;
(b)on her failure to pay on the due date rates and taxes levied on the matrimonial home;
(c)on the matrimonial home ceasing to be insured in a reputable insurance office to the amount of the difference between the improved and unimproved capital value for the time being against all issue risks in the name of my wife VASILICA GORGIESKI and my son ILO GORGIESKI; and
(d)on her failure to keep the matrimonial home in the same state of repair as at my death.
3.2Subject to payment of just of all my just debts, funeral and testamentary expenses the rest and residual estate UNTO my wife VASILICA GORGIESKI and my son ILO GORGIESKI as tenants in common in equal shares provided that if my son predeceases me then his share unto my grandson KRISTIAN GORGIESKI until he attains the age of 21 years and then to him absolutely.

The deceased's estate

The net value of the estate of the deceased is relatively modest. The only substantial asset of the deceased's estate was the Balga property. The Balga property has been sold and the proceeds of sale ($292,466.44) have not been distributed. The proceeds of sale remain in the trust account of the defendant's legal representatives. To the extent that the deceased held assets in Macedonia, the plaintiff is unsure of their nature or value.

The sale of the Balga property

The plaintiff deposes to the circumstances of the sale of the Balga property.
She deposes that in about 2018, the defendant told the plaintiff that he was going to arrange to sell the Balga property. The plaintiff recalls having said to the defendant that she was happy with this provided that the $120,000 was paid to her when it was sold. The plaintiff recalls that the defendant did not disagree.
The plaintiff deposes that in about June 2020, a real estate agent informed her that the defendant had been appointed as the administrator of the deceased's estate. The plaintiff says that this was the first time that she had found out that anyone had been formally appointed to manage the deceased's affairs.
The plaintiff deposes that on 25 June 2020, her daughter-in-law agreed to purchase the Balga property from the defendant for $320,000.
The defendant did not authorise payment of $120,000 to the plaintiff from the proceeds of sale of the Balga property at settlement.

The personal circumstances of the plaintiff

As at the date of her affidavit the plaintiff was 66 years of age and had been retired for two years. The plaintiff's husband was 71 years of age and had been retired since about 2020.
The plaintiff and her husband receive aged pensions of $880 and $940 per fortnight, respectively. The plaintiff deposes that she and her husband are only able to meet their basic living expenses from these funds.
The plaintiff and her husband jointly own the property at 1A Wick Lane, Balga, which the plaintiff estimates is valued at approximately $400,000, and which is encumbered with a mortgage to secure a debt of approximately $200,000.
The plaintiff and her husband have superannuation in the amount of approximately $105,000 and $57,000 respectively. They hold shares and cash of a total value of approximately $3,000.
The plaintiff and her husband own a car. The plaintiff's husband owns a house and land in Macedonia valued at approximately $130,000. Together the plaintiff and her husband have no other significant assets.

Delay

The plaintiff accepts that she is out of time in which to make an application under the Family Provision Act. She deposes that in about June 2020, she was first informed that the defendant had been appointed as the administrator of the deceased's estate.
The plaintiff deposes that she obtained preliminary legal advice on 4 September 2020. She also deposes that she had not been aware of the Family Provision Act and the potential for the plaintiff to make a claim in relation to her father's estate prior to obtaining that advice.
The plaintiff says that she did not seek legal advice earlier because:
(a)she was not aware that the defendant had obtained a grant of representation in respect of the deceased's estate until about June 2020;
(b)of her difficulty in communicating in English;
(c)she was not familiar with the Australian legal system; and
(d)she believed that the defendant would pay $120,000 of the proceeds of sale of the Balga property her.

The defendant's evidence

In the affidavit sworn in opposition to the application, the defendant responds almost paragraph by paragraph to the plaintiff's affidavit. There is no dispute as to the terms of the deceased's will; the fact that the Balga property has been sold; nor the net value of the deceased's estate. Otherwise, the defendant challenges much of the plaintiff's evidence.
Among other things, the defendant takes issue with the plaintiff's account of her motives for moving to Australia; the nature of her relationship with her parents; and the assistance the plaintiff says that she provided to her parents. The defendant says that apart from some issues with the English language, his parents were capable of living independently and lived independently in Australia, without the assistance of the plaintiff.
The defendant annexed to his affidavit as 'IG3' a copy of a declaration made by Mrs Gorgieski on 1 December 2016 in the Macedonian language, now translated into English. A copy of the substantive part of the declaration document, translated into English, is reproduced at sch A to these reasons.
The plaintiff's evidence concerning the assistance she provided to her parents is challenged by the defendant by reference to the declaration, and by reference to the defendant's evidence of what he had been told by his parents.
As to the plaintiff's personal circumstances, it was submitted on behalf of the defendant that there is no actual evidence of hardship experienced by the plaintiff at the date of death of the deceased or now.
As to the plaintiff's knowledge of the deceased's will and its terms, the defendant’s evidence is, in effect, that while the plaintiff was not given a copy of the will, she was aware of the terms of the will and that it made no provision for her. The defendant deposes to having informed the plaintiff of the contents of the deceased's will.[15] The defendant deposes to having informed the plaintiff at the end of 2018 that he was engaged in obtaining the required documents to be appointed as administrator of the deceased's estate.[16] Further, he deposes that his parents never mentioned to him an intention to give the plaintiff the amount of $120,000,[17] and nor had the plaintiff mentioned to him that she had been promised $120,000.[18]
[15] Affidavit of I Gorgieski par 16 and par 26.
[16] Affidavit of I Gorgieski par 26.
[17] Affidavit of I Gorgieski par 14.
[18] Affidavit of I Gorgieski par 20.

Disposition

There is no dispute between the parties as to the test to be applied in the determination of this application. The parties differ as to whether the plaintiff has discharged her onus to establish sufficient grounds for taking the matter out of the general rule; and whether the justice of the case requires that the plaintiff be given leave to file out of time.
Having regard to all of the relevant facts and circumstances, I find that the plaintiff has made out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.

Arguable case on the merits

On the evidence before me, I find that the plaintiff has demonstrated an arguable case on the merits.
I accept that the plaintiff has standing to bring this application for leave, and upon leave being granted, an application pursuant to the Family Provision Act s 6(1) for provision from the estate of the deceased.
I have weighed in the balance the personal circumstances of the plaintiff. The plaintiff is of advanced years. Both she and her husband are retired pensioners. They reside in a home in which their equity is about equal to their debt. The plaintiff deposes that she and her husband are only able to meet their basic living expenses from their pensions. They hold modest additional assets in the form of superannuation, shares and other property.
As to her personal circumstances, counsel for the plaintiff submitted that she is in a difficult financial position, being a retired aged pensioner with a significant mortgage, limited assets and an inability to work. No provision was made for her by the deceased. I accept that the evidence does not disclose any particular difficulty experienced by the plaintiff as at the date of the deceased's death or subsequently. However, for the purpose of this application, I find that the plaintiff's evidence supports the finding of a case that the plaintiff has needs which cannot be met from her own resources.
I accept that the plaintiff's needs, if incapable of being met from her own resources, would be a factor for the court to consider on a substantive application in determining whether the plaintiff had been left without adequate provision. However, such needs are not the only matters which the court must consider on a substantive application.
The plaintiff deposes to her relationship with the deceased. The plaintiff deposes to having been asked by her parents to move to Perth, Western Australia, so that she could look after her parents as they aged; and to having moved from Germany to Perth in 1999.[19] The plaintiff describes the services that she and her husband provided to the deceased and to the plaintiff's mother over many years.[20] She deposes to significant purchases made by her and her husband, which she says were made so as to assist the deceased.[21] She deposed to her parents returning to Macedonia in March 2015. She deposes that when they left, they asked her to look after the Balga property, which she has done since May 2015.[22]
[19] Affidavit of B Naumoska par 9.
[20] Affidavit of B Naumoska par 10 - 12, par 15 and par 18.
[21] Affidavit of B Naumoska par 13 and par 15.
[22] Affidavit of B Naumoska par 22.
The plaintiff's evidence is contradicted by the defendant. This is not the appropriate forum to resolve the conflict. The parties accept that in considering the affidavit evidence, the court must assume that the evidence of the plaintiff will be accepted unless it is inherently incredible.[23]
[23] Defendant's submissions par 21, citing Clayton 373. See also Wheatley [58].
While the conflict in the evidence of the deponents was acknowledged by counsel for the plaintiff, it was submitted that the plaintiff's evidence was not inherently incredible. No objection was taken to any part of the defendant's affidavit. Rather, counsel for the plaintiff submitted that little weight ought to be afforded to the defendant's evidence, in so far as he describes the relationship and interactions as between his parents and the plaintiff while they all resided in Australia, being in part hearsay and otherwise speculation.[24]
[24] ts 3 (24 March 2021).
I am satisfied that the plaintiff has demonstrated an arguable case on the merits. On the evidence, there is a case that the plaintiff has needs which cannot be met from her own resources. I have had regard to the relationship between the plaintiff and the deceased as deposed to by the plaintiff. I have had regard to the plaintiff's evidence of the services given by the plaintiff and her husband to the deceased and the plaintiff's mother over many years;[25] and to the purchases made by the plaintiff which she says were made so as to assist the deceased.[26]
[25] Affidavit of B Naumoska par 10 - 13, 15 and 18.
[26] Affidavit of B Naumoska par 13 and par 15.
I acknowledge that there is a sharp conflict on the evidence. However, I cannot resolve the conflict on the affidavits filed. The plaintiff's evidence is not inherently implausible nor contrary to the undisputed facts, and points to the existence of an arguable claim. Without a substantive hearing and cross-examination, I cannot conclude the declaration made by Mrs Gorgieski on 1 December 2016 to be a knockout blow to the plaintiff's case. Indeed, it is not possible on an application of this nature to resolve the conflict which arises when 'BN1' dated 27 June 2008 (which appears to have been signed by the deceased and Mrs Gorgieski and witnessed), is compared to the declaration made by Mrs Gorgieski on 1 December 2016, after the deceased had passed.
Counsel for the defendant submitted that the evidence of the plaintiff disclosed that she in fact seeks to enforce the promise documented in annexure 'BN1' to the plaintiff's affidavit, and that enforcement of that promise is the 'primary motivation' of her claim.[27] Counsel submitted that in September 2020, the plaintiff pressed for enforcement of the promise at settlement of the Balga property, she did not press a claim against the estate of the deceased.[28] Counsel suggested that the plaintiff's claim under the Family Provision Act was properly characterised as 'a bit of an afterthought'. While counsel for the defendant did not go so far as to submit that the plaintiff's application for leave under the Family Provision Act was a contrivance or an abuse, he did suggest that evidence of the plaintiff was wanting.[29]
[27] ts 14 - 15 (24 March 2021).
[28] ts 14 - 15 (24 March 2021).
[29] ts 15 (24 March 2021).
Having given careful consideration to the evidence filed, I find that the plaintiff's evidence is not inherently implausible or contrary to the undisputed facts and points to the existence of an arguable claim. Given the plaintiff's circumstances and situation in life, and the assistance the plaintiff deposes to having provided to the deceased for many years, I find that it is arguable that the will of the deceased should have made further provision for her. The demonstration of an arguable case on the merits is a factor tending in favour of leave being granted.

Length of and reason for delay

The defendant contends that the applicant has not adequately explained the plaintiff's delay in taking any steps to make a claim on the estate, nor has she provided any adequate explanation for failing to bring an application within time.
As to the nature, extent and reasons for the delay, I make the following findings on the evidence presented.
The plaintiff was well out of time to bring a proceeding for provision out of the estate of the deceased under the Family Provision Act. She commenced this proceeding for leave almost one year after the six month period had concluded.
The deceased died in 2015 and his wife died in 2018. There is no suggestion on the evidence that the plaintiff was unaware of the same.
The plaintiff does not depose to when she became aware of the existence and terms of the deceased's will. The defendant deposes to having been given a copy of the deceased's will in 2003. He deposed to being aware that the plaintiff was not given a copy of the will, but says that the plaintiff was aware that her father had made a will and that it made no provision for her. The defendant deposes to having informed the plaintiff of the contents of the deceased's will.[30] On the evidence before me it is not possible to make a finding as to when the plaintiff first learnt of the terms of the deceased's will.
[30] Affidavit of I Gorgieski par 26.
As to the plaintiff's belief as to the deceased's intentions for the disposition of his estate, the plaintiff's evidence is as follows:
My parents spoke freely about their wishes for their estate when they passed. On many occasions, they referred to me receiving $120,000 and my brother receiving the rest of their assets. In my discussions with Ilo since about 2010, he indicated that he was aware of the promised $120,000 payment to me.
The effect of the defendant's evidence is that he has never promised the payment of $120,000 to the plaintiff, nor was the promise mentioned to him by the plaintiff. There is a conflict on the affidavit evidence in relation to whether the plaintiff informed the defendant of her expectation of receiving $120,000. I am not able to resolve the conflict by preferring the evidence of one party over the other.
The defendant deposes to having informed the plaintiff at the end of 2018 that he was engaged in obtaining the required documents to be appointed as 'the administrator/beneficiary of our parents' estate'.[31] In late 2018, once he had gathered all necessary documents, the defendant says that he notified the plaintiff of his intention to sell the Balga property. The defendant does not depose to having informed the plaintiff that administration of the will had been granted to him on 23 April 2019.
[31] Affidavit of I Gorgieski par 26.
The evidence establishes that the plaintiff was aware from June 2020 that the defendant had been appointed as administrator of the deceased's estate. That is, she was aware of the appointment outside of the six months from the date on which the defendant became entitled to administer the estate of the deceased in Western Australia.
The plaintiff's evidence is to the effect that she believed that she would receive $120,000 from the proceeds of sale of the Balga property.[32] For the purpose of this application I accept that the plaintiff held this belief.
[32] Affidavit of B Naumoska par 20, par 25, par 29 and par 43.4.
I accept that in early September, the plaintiff came to be informed that the defendant did not authorise payment of $120,000 to her from the proceeds of sale of the Balga property at settlement.[33]
[33] Affidavit of B Naumoska par 29 and par 30.
The plaintiff deposes, and I accept that she was not aware of the Family Provision Act, and the potential for her making a claim in relation to her father's estate prior to taking preliminary legal advice on Friday, 4 September 2020.[34] The plaintiff promptly took legal advice when she realised that she would not be readily paid $120,000 from the proceeds of sale of the Balga property.
[34] Affidavit of B Naumoska par 42.
Searches were then promptly made by the plaintiff's solicitor and on Wednesday, 9 September 2020, a copy of the search of the Balga property was secured from Landgate, together with a copy of the grant of letters of administration with the will annexed made in favour of the defendant from this court.[35]
[35] Affidavit of B Naumoska par 31, 'BN3' - 'BN5'.
The plaintiff put the defendant on notice of the application on Friday, 11 September 2020 (seven days after taking preliminary legal advice). The application was filed some five weeks after the preliminary advice was taken. The effluxion of time between the plaintiff taking preliminary advice and the plaintiff commencing this proceeding was not unduly protracted.
This is not a case where the plaintiff was aware of her rights under legislation, but unaware of the time limits. Nor is this a case where the plaintiff who, knowing of her rights, chose for some reason satisfactory to her at the time not to exercise them, and some time afterwards, when her circumstances changed, sought an extension of time.
This is a case where the plaintiff held a belief that she would receive proceeds of sale from the Balga property but was unaware of her rights under the Family Provision Act. When she came to understand that the money she believed was promised to her would not be paid, she took legal advice and became aware of her rights under the Family Provision Act. I accept the evidence of the plaintiff at par 43 of her affidavit.
I weigh in the balance the plaintiff's lack of familiarity with the Australian legal system; her difficulties in communicating in English; and her belief that she would receive $120,000 from the proceeds of sale of the Balga property. In all of the circumstances, I find that the plaintiff's reasons for delay, particularly the plaintiff's ignorance of her rights under the Family Provision Act, to be a factor tending in favour of the exercise of discretion.

The estate has not been distributed

It is relevant to consider whether or not the estate had been distributed before the plaintiff's claim was made or notified. In this case, while the Balga property has been sold, the proceeds of sale ($292,466.44) have not been distributed. I have weighed this in the balance, and it is a factor tending in favour of the exercise of discretion.

Alternative redress

The defendant says that the plaintiff has commenced a separate proceeding in this court, known as CIV 2049 of 2020, by which she seeks to enforce the promise made by the deceased that the plaintiff would receive $120,000 from the proceeds of sale of the Balga property. On behalf of the defendant it is submitted that if the extension of time was not granted, the plaintiff might still seek and secure redress through the proceeding known as CIV 2049 of 2020.

The defendant's attitude to the plaintiff's claim for $120,000 is clear. He deposes at par 30 of his affidavit to not having agreed to pay the plaintiff $120,000, and to being 'firmly convinced that in doing so I am acting in full compliance with the legal documents and with father's Will'. I accept counsel's submission made on behalf of the plaintiff that the proceeding appears likely to be defended and is not necessarily bound to succeed.
I understand from the submission made on behalf of the plaintiff that the plaintiff's redress through the proceeding known as CIV 2049 of 2020 would be limited to recover of $120,000, whereas the plaintiff's claim for provision out the estate of the deceased pursuant to the Family Provision Act is not presently framed as being limited to provision of $120,000 from the deceased's estate.[36] In this regard, I accept that prosecution of the alternative redress alone might be less advantageous to the plaintiff than seeking provision from the deceased's estate.
[36] ts 8 - 10 (24 March 2021).
I have weighed this alternative means of redress in the balance. On balance, it is not a factor which weighs heavily against the exercise of discretion.

Size of the estate

Counsel for the defendant submitted that I should weigh in the balance the modest size of the estate and the legal costs likely to be borne by the estate if leave were granted. Counsel submitted that legal costs of any proceeding would significantly reduce the value of the estate, regardless of the outcome, which was a factor which ought to tend against the exercise of discretion.[37]
[37] ts 15 (24 March 2021).
In response, counsel for the plaintiff referred to the decision of Sanderson M in Hyde v Palfrey,[38] at [16], where the learned Master held:
The concession having been made that [the plaintiff] did have an arguable case it seemed to me proper to grant the plaintiff leave to issue proceedings. True it is this is a small estate and there is a real prospect of most of the estate being consumed in legal fees. But as the law stands at the moment, there is no warrant in treating small estates differently from large estates. The size of the estate may well be a factor to be taken into account in the exercise of discretion. But when, as here, the plaintiff has an arguable case the fact the estate is modest could not lead to an extension of time not being granted.
[38] Hyde v Palfrey [2017] WASC 65.
The guidelines summarised in Clayton v Aust do not include the size of the estate being a matter which in this context the court would ordinarily have regard to and weigh in the balance. However, the guidelines are non-exhaustive and all relevant circumstances are to be borne in the balance. If the size of the estate were a relevant circumstance to be considered in the exercise of discretion, in this case I find that the size of the estate and the potential for diminution by legal costs would not be factors which would tip the balance against the exercise when weighed with all other relevant circumstances.

Conclusion and orders

In my judgment, weighing all relevant matters in the balance, I find that it would not be just to shut the plaintiff out from making a claim.
In summary, the plaintiff has demonstrated an arguable case on the merits; she has proffered a cogent explanation for her delay for failing to bring an application within time; and that the estate has not been distributed. These are all factors tending in favour of the exercise of discretion. The potential for the plaintiff to secure alternative redress through the proceeding known as CIV 2049 of 2020 tends against the exercise of discretion, albeit not heavily as the outcome of that proceeding is far from certain and the plaintiff's claim for provision out of the estate of the deceased is not limited to provision of $120,000. Further, if the modest size of the estate and the legal costs likely to be borne by the estate if leave were granted are matters to be weighed in the balance of this application, they would not tip the balance against the exercise of discretion.
When all are weighed in the balance, I am satisfied that the plaintiff has discharged her onus to establish sufficient grounds for taking the matter out of the general rule. The justice of the case requires that the plaintiff be given leave to file out of time.
Subject to hearing from the parties, it is my preliminary view that the costs of this application should be costs in the cause of the substantive application issued under the Family Provision Act s 6(1). Once the parties have had an opportunity to consider these reasons, I will hear from them as to the form of order and as to the costs.

Schedule A: Portion of the declaration annexed to the defendant's affidavit

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MH
Associate to Justice Strk
31 AUGUST 2021