Pilton v Pilton
[2008] WASC 303
•22 DECEMBER 2008
PILTON -v- PILTON [2008] WASC 303
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASC 303 | |
| Case No: | CIV:2183/2008 | 26 NOVEMBER 2008 | |
| Coram: | MASTER SANDERSON | 21/12/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Leave to commence granted | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM NORMAN PILTON BRIAN ALLAN PILTON IVAN DOUGLAS PILTON LESLIE JOHN PILTON LILLIAN MAY REID CAROLE ANNE PEAT GRACE JEANETTE PILTON as executor of the estate of WILLIAM JOSEPH PILTON GRACE JEANETTE PILTON |
Catchwords: | Inheritance (Family and Dependants) Provision Act 1972 (WA) Application for leave to commence proceedings Turns on own facts |
Legislation: | Inheritance (Family and Dependants) Provision Act 1972 (WA), s 7 |
Case References: | Bondelmonte v Blanckensee [1989] WAR 305 Clayton v Aust (1993) 9 WAR 364 Grigoriou v Nitsos [1999] WASCA 42 RAMS Mortgage Corporation Ltd v Skipworth [2007] WASC 24 Vigolo v Bostin (2005) 221 CLR 191 Young v Kestel [2003] WASCA 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
BRIAN ALLAN PILTON
Second Plaintiff
IVAN DOUGLAS PILTON
Third Plaintiff
LESLIE JOHN PILTON
Fourth Plaintiff
LILLIAN MAY REID
Fifth Plaintiff
CAROLE ANNE PEAT
Sixth Plaintiff
AND
GRACE JEANETTE PILTON as executor of the estate of WILLIAM JOSEPH PILTON
First Defendant
GRACE JEANETTE PILTON
Second Defendant
Catchwords:
Inheritance (Family and Dependants) Provision Act 1972 (WA) - Application for leave to commence proceedings - Turns on own facts
Legislation:
Inheritance (Family and Dependants) Provision Act 1972 (WA), s 7
Result:
Leave to commence granted
Category: B
Representation:
Counsel:
First Plaintiff : Dr J J Hockley
Second Plaintiff : Dr J J Hockley
Third Plaintiff : Dr J J Hockley
Fourth Plaintiff : Dr J J Hockley
Fifth Plaintiff : Dr J J Hockley
Sixth Plaintiff : Dr J J Hockley
First Defendant : Mr L A Tsaknis
Second Defendant : Mr L A Tsaknis
Solicitors:
First Plaintiff : Gibson & Gibson
Second Plaintiff : Gibson & Gibson
Third Plaintiff : Gibson & Gibson
Fourth Plaintiff : Gibson & Gibson
Fifth Plaintiff : Gibson & Gibson
Sixth Plaintiff : Gibson & Gibson
First Defendant : Gibson Tovey & Associates
Second Defendant : Gibson Tovey & Associates
Case(s) referred to in judgment(s):
Bondelmonte v Blanckensee [1989] WAR 305
Clayton v Aust (1993) 9 WAR 364
Grigoriou v Nitsos [1999] WASCA 42
RAMS Mortgage Corporation Ltd v Skipworth [2007] WASC 24
Vigolo v Bostin (2005) 221 CLR 191
Young v Kestel [2003] WASCA 190
(Page 4)
1 MASTER SANDERSON: This is an application by each of the plaintiffs for leave to file out of time an application under s 7 of the Inheritance (Family and Dependants) Provision Act 1972 (WA) (the Act) for the provision out of the estate of their late father, William Joseph Pilton (the deceased). The application is made pursuant to s 7(2)(b) of the Act.
2 The plaintiffs are the six children of the deceased's first marriage and as such are entitled to make a claim under the Act: s 7(1)(c). The first defendant, Grace Jeanette Pilton (who is commonly referred to as 'Judy'), is the executrix of the estate of the deceased and is his second wife. Judy is not the mother of any of the plaintiffs.
3 The deceased and Judy married in 1959 shortly after the death of the deceased's first wife. The deceased and Judy had three daughters - Dianne, Arlene and Roslyn. Judy and her daughters are domiciled in the Northern Territory.
4 The plaintiffs are all adults. William Norman Pilton was born on 7 December 1941 and is now aged 67. Ivan Douglas Pilton was born on 11 January 1943 and is now aged 65. Lillian May Reid was born on 25 February 1944 and is now aged 64. Brian Allan Pilton was born on 14 January 1947 and is now aged 61. Leslie John Pilton was born on 4 November 1949 and is now aged 59. Carole Anne Peat was born on 1 November 1950 and is now aged 57. Leslie and Carole are domiciled in the Northern Territory. The remaining plaintiffs live in Western Australia.
5 The will of the deceased bequeathed a maximum of 5% of the deceased's estate to his daughter Roslyn to enable her to look after Judy 'as and when required'. The residue of the estate was to be held on trust for Judy provided she survived the deceased by one calendar month. That she did and, as a consequence, the bulk of the deceased's estate passed to Judy.
6 Probate of the will was granted to Judy in the Supreme Court of the Northern Territory on 21 November 2005. The probate documents stated that the deceased had at the time of his death personal estate within the jurisdiction of the Northern Territory not to exceed a total of $500. It would seem that the plaintiffs harboured concerns that the probate documents filed in the Northern Territory did not reveal the full extent of the deceased's personal estate in that jurisdiction. It would seem they were mistaken. In any event, the affidavit of assets and liabilities filed in the Northern Territory Supreme Court showed a net value of the estate in
(Page 5)
- an amount of $1,596,674.70. The bulk of this estate was made up of five parcels of real estate in Perth, Western Australia. Certain other property passed to the deceased's wife by virtue of being held on a joint tenancy.
7 An application under s 6 and s 7 of the Act may not be heard by a 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'. In this case, the deceased died on 11 June 2005. On 24 October 2006, the probate of the deceased's will which had been granted by the Northern Territory Supreme Court was re-sealed by the Supreme Court of Western Australia. The plaintiffs then had until 24 April 2007 to bring an application under the Act. This they did not do.
8 The reason for the delay was that the plaintiffs had commenced proceedings in the Northern Territory Supreme Court under the statutory provisions relevant to that jurisdiction. Between November 2006 and August 2008, the plaintiffs were progressing the Northern Territory proceedings with a view to resolving their claims for provision out of the estate. On 10 June 2008, Southwood J of the Northern Territory Supreme Court dismissed the plaintiffs' application. His Honour was of the view that there were insufficient assets in the Northern Territory to justify making an order. The papers indicate that there may be grounds upon which the plaintiffs might take proceedings against their solicitors and counsel who advised them to proceed in the Northern Territory. I mention this fact only because it is relevant to the consideration of the plaintiffs' application. I will come back to that issue later in these reasons.
9 It is convenient at this point to deal with an issue raised by the parties. In support of the application, the plaintiffs relied upon an affidavit of Rachel Cosentino sworn 16 September 2008. In par 45 of that affidavit, Ms Cosentino refers to affidavits of the plaintiffs sworn in the Northern Territory proceedings. These affidavits, which are essentially the evidence of the plaintiffs in the Northern Territory proceedings, appear as annexures RC12 to RC17. Counsel for the defendants objected to the use of those affidavits in these proceedings.
10 In raising this objection, counsel relied upon what was said by EM Heenan J in RAMS Mortgage Corporation Ltd v Skipworth [2007] WASC 24. In that case, his Honour was dealing with affidavits which had been prepared for use in Family Court proceedings and upon which the plaintiff sought to place reliance in Supreme Court proceedings.
(Page 6)
- His Honour ultimately ruled that leave to rely upon these affidavits was required and that leave should be refused. His Honour said:
Because an affidavit is a document, and contains information, which has been prepared and used for a specific purpose, namely as evidence in the particular proceedings for which it was prepared, its use is restricted to those proceedings and it may not be used for any purpose other than the conduct of those particular proceedings. Hence, its contents may not be read in other proceedings without the leave of the court - see the Hon Justice A R Emmett in 'Practical Litigation in the Federal Court of Australia: Affidavits' (2000) 20 Aust Bar Rev 28 at 38. Such an affidavit, and indeed other documents such as witness statements prepared for use in particular proceedings, may not be used in other proceedings without leave of the court - Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217. Such an affidavit, and indeed other cognate documents, are subject to the implied undertaking that they may not be used for any collateral purpose, that is, otherwise than for the purpose of the litigation in which they are given, unless the consent or leave of the court is obtained …
Springfield Nominees Pty Ltd (supra) is an example where leave was granted to make use of the materials in other proceedings because of the degree of commonality between the proceedings in the Supreme Court, in which the witness statements had been filed, and in the Federal Court of Australia in which the second cause was then pending. Wilcox J adverted to the circumstances to which the court may have regard when considering whether special circumstances exist for the grant of such leave [55] - [56].
12 (In passing, I should make some comment about the way in which it was sought to put these affidavits before the court. In my view, it is not appropriate that they should appear as annexures to the affidavit of the plaintiffs' solicitor. An application for leave to rely upon these affidavits should have been included in the originating summons which initiated these proceedings. Then, if necessary, the admissibility of the affidavits could have been considered as a preliminary issue. These affidavits, then,
(Page 7)
- if leave was given to rely upon them, would stand in their own right as the evidence of the plaintiffs.)
13 This action was commenced by notice of originating motion dated 16 September 2008. The application is 17 months out of time. The discretion contained in s 7(2)(b) of the Act has been the subject of consideration in a number of cases. The principles were outlined by Malcolm CJ in Clayton v Aust (1993) 9 WAR 364 and were applied in Young v Kestel [2003] WASCA 190. These factors include the following:
1. the discretion is unfettered, but must be exercised judicially and in accordance with what is just and proper;
2. the plaintiff bears the onus of establishing sufficient grounds to take the case out of the general rule and depriving those who are protected by its benefits;
3. the time limit is a substantive provision laid down by the Act itself and more than a procedural time imposed by the rules of court. The burden on the applicant is no triviality. This means that the plaintiff must make out a substantial case for its being just and proper for the court to exercise its statutory discretion;
4. all circumstances must be considered. One significant factor is the length of the delay and the reasons for it and also the promptitude with which, by letter before action or otherwise, the claimant gave warning of the proposed application to the defendant;
5. it is material whether negotiations have commenced within time, but not concluded once the time limit has elapsed;
6. it is relevant whether the estate has been distributed at the time the executor has notice of the action;
7. it is also relevant whether any beneficiary has changed his or her position in reliance on a distribution;
8. it is relevant whether the claimant has an arguable case, but no detailed consideration of the merits of the case is required at the stage of the hearing of the application for leave to file out of time is made.
14 It is convenient, at this stage, to deal with the question of whether the plaintiffs have an arguable case. The test to be applied in answering this question was set out by Malcolm CJ in Bondelmonte v Blanckensee [1989] WAR 305, 307. This two-stage test has been consistently followed and was approved by the High Court in, among other cases, Vigolo v
(Page 8)
- Bostin (2005) 221 CLR 191. With that test in mind, it is appropriate to consider the position of each of the plaintiffs.
15 The first plaintiff retired in December 2006. He had been employed as a mechanical fitter or a mechanic from the age of 15. Jointly with his wife he owns his family home having an estimated value of $350,000. The home is unencumbered. Jointly with his wife also, he has assets totalling just short of $200,000, of which almost $160,000 is either money in bank accounts or superannuation. He has no current liabilities. In retirement, he and his wife's annual income is estimated to be around $20,000. Their expenditure is estimated at $23,000. Prior to his marriage, the first plaintiff lived in the family home and was raised by the deceased and the second defendant. He says he contributed to the development of the deceased's business.
16 The second plaintiff has a business as a furniture restorer with his wife. He owns his own home with an estimated value of $300,000. It is subject to a mortgage of $22,000. He has total liabilities of $38,000 which he is able to meet from his existing income. His net income is $500 per week and his expenditure is $472. He lived at home and was raised by the deceased and the second defendant from the age of 12 until 23. He is in good health.
17 The third plaintiff is employed as a security guard. He lived with the deceased and the second defendant from the age of 16 until he was 23 years of age. He has no dependant children. He owns his family home with an estimated value of $330,000. It is encumbered by a mortgage of $37,500. His total liabilities are $92,500. He has a net income of $780 per week and expenses of $496.
18 The fourth plaintiff lived with the deceased and the second defendant from the age of 9 until he left home at 24. He owns his own house which is unencumbered. It has an estimated value of $260,000. He also has a hotel/roadhouse with an estimated value of $250,000. He deposes to having business liabilities of $370,000. He manages the hotel/roadhouse. He says his income is $270 per week after business expenses. His personal expenses are $150 per week. He says he has a detached retina but otherwise he is in reasonable health. He does say that he is struggling to pay off his debts and he cannot see a way of retiring or having funds for regular holidays.
19 The fifth plaintiff lived with the deceased and the second defendant from the age of 15 until she left home aged 18 or 19. She has no
(Page 9)
- dependant children. She says that she suffers from depression and anxiety and has done so all her life. She derives her income from a government pension and rental assistance totalling $581 per fortnight. She also undertakes some babysitting for her daughter and on an irregular basis receives $60 per week. She has a small shareholding and certain household furniture.
20 The sixth plaintiff lived with the deceased and the second defendant from age 8 until she left home aged about 18. Her and her husband's assets total $577,300 and their liabilities total $119,500. The couple have a net income of $1,841 per week. They have expenses of $1,019 per week. The sixth plaintiff suffers from impaired vision, but other than that her physical health is good.
21 Set against the position of the plaintiffs, there is the position of the second defendant. The second defendant and the deceased were married for 45 years. The second defendant raised the six children of the deceased's former marriage, albeit for a limited period of time. She contributed to the building up of the family assets in a very real sense. It was incumbent upon the deceased to adequately provide for the second defendant and, on any assessment of the plaintiffs' claims, that obligation must be taken into account. It must also be taken into account that the value of the deceased's estate as at the date of his death was just under $1,600,000.
22 When all of these facts are taken in the mix, it is clear that the plaintiffs have an arguable case. The facts in this case do not resemble, for instance, the facts in Vigolo. None of the plaintiffs are so well established that it is unarguable that the will of the deceased did not make adequate provision for their welfare or advancement in life. Once that point has been reached, the test has been satisfied and the fact the plaintiffs have an arguable case is a factor to be weighed in the balance.
23 The question in this case is whether or not there is an adequate explanation for the delay in bringing these proceedings. In one sense at least, there is no adequate explanation. The plaintiffs and their agents, the solicitors, were aware that the deceased had significant assets in this jurisdiction. Yet they took no steps to make a claim on the estate. This was despite invitations by the defendants' solicitors to do so. Any fault lies with the plaintiffs' legal advisers and, on one argument, it is to them that the plaintiffs should have recourse.
(Page 10)
24 Supporting that view is the fact that the delay has been significant. The deceased passed away in 2005. This case is unlikely to be ready for trial, at the very earliest, before the middle of 2009. The time limit of six months for bringing of an action is there for a very good reason. Persons who are beneficiaries under a will are entitled to have the benefits paid to them and to move on with their lives. Given the very real delay in this matter, the defendants have every right to object to the matter being further delayed.
25 In his submissions, counsel for the plaintiffs dealt with what he referred to as 'oversight' by a solicitor. It was submitted that solicitors and counsel acting for the plaintiffs in the Northern Territory were at fault in recommending that the proceedings be maintained in that jurisdiction and not advising that proceedings be issued in Western Australia. Without in any way wishing to prejudge that issue, it must be accepted that counsel's proposition is arguable. Counsel for the defendants did not suggest otherwise.
26 Oversight by a solicitor can, in certain circumstances, lead to an extension of time being granted even when a claimant may have a right of action against his or her solicitors. In Grigoriou v Nitsos [1999] WASCA 42, Ipp J said
Were the applicant not to be granted leave to bring her application out of time, she would be left with a claim for damages against Stamatiou & Co and Mr Segler. As the learned Master pointed out, the applicant's damages in such a case would be based on the loss of the chance of succeeding in her claim under s 7(1): Instant Nominees Pty Ltd v Redmond (1987) WAR 218 (at 226) per Burt CJ. On this basis there is a real prospect of the applicant obtaining an order for damages that would be less than the amount she could recover under s 7(1). Further, the prosecution of such a claim would take far longer and be far more expensive than the prosecution of her claim under the Act. The aforegoing represented a serious degree of prejudice to the applicant. This has to be seen in the light of the fact that the new evidence established that no blame whatever attached to her in respect of the failure to bring the application within the six month period required by s 7(2)(a). On the contrary, as mentioned, she had done everything that could have been expected of her [29].
27 It is worth putting the Grigoriou case and what was said by Ipp J in context. Ms Grigoriou was eligible to bring a claim under the Act. She instructed solicitors. The solicitors were aware of the six-month time limit, but did not issue proceedings. They then applied on behalf of Ms Grigoriou for leave to issue proceedings. The matter was argued by the solicitors originally instructed. No evidence was led as to what steps
(Page 11)
- Ms Grigoriou personally had taken in an effort to have her solicitors issue proceedings within time. Having considered all of the evidence led on behalf of Ms Grigoriou, I determined that she did not satisfy the requirements for a grant of leave based on the principles of Clayton v Aust.
28 When the appeal came on for hearing, Ms Grigoriou had appointed new solicitors. Counsel at the appeal applied to lead evidence from Ms Grigoriou as to what she had done in an effort to have proceedings issued. Leave was granted. It was based upon this fresh evidence that the court determined that leave ought be granted to Ms Grigoriou to commence an action.
29 I mention these additional facts because it illustrates the extent to which the court attached importance to the steps taken by the claimants personally to advance their claim. It is not a matter which is mentioned in Clayton v Aust, but it is a matter of some importance. In this case, it is clear that the plaintiffs did not sit idly by and let any claim they might have linger without taking steps to advance their position. But relying on advice, they proceeded in the Northern Territory. In my view, the fact that they were proactive and did attempt to maintain a claim against the estate is a strong factor in their favour.
30 Two other points should be mentioned. This is not a case where the defendants were unaware that a claim was pending. They may have taken the view that the claim in the Northern Territory Supreme Court was misconceived. In fact, on a number of occasions, they actually pointed that out to the plaintiffs. But nonetheless, they were aware that the plaintiffs maintained they had a claim on the estate and they were aware that this claim was being pressed.
31 It would also appear that there has been some limited distribution of the estate. As at the date of the death of the deceased, the estate consisted of five real estate parcels. It would seem three of those parcels have been sold and some of the funds may have been used by the second defendant. That means two parcels of land are still held by the estate. It does not appear as though there has been a distribution of the estate to what is effectively a loan beneficiary such that would preclude an order being made under the Act.
32 In all the circumstances, I am satisfied that leave ought be granted to the plaintiffs to bring an application. I will hear the parties as to the precise form of orders and as to costs.
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